Case Information
*1 TEE ATTORNEY GENERAL Aue~w 11. TBxAn Thie Opinion Ovrrruler 0 lnion #O-722--O-12&-0-1529 bnorable I. Predecki Overruled by O-6616 aounty Auditor
&lrerton, Texas
Opinion No.~ 0.jQ1 Be: Compenmtlon of a 8p8ai8l county judge of Galre8ton county.
Your recent requert for an opinioir of thlr dopart- ment on the above etated matter has been received.
19l&,.and B. iiolaan of thlr county ‘home for ap roximatel twb s E pregid.e an udgr of t l tfon at 8peeial called t, 1940, elected Hr. hl88el l a8 Special Judge hating tters In the ttention that or the senlaes the County may
rendered by
County Court.
ute that author
stated above.
full amount of
in January of t
Com~iAssi0ner.s'
illness.
Honorable I. Predecki, Page 2
Hay 2Tth, 1939, to Mr. Fred T. Porter, County
Attorney, Kaufman County, you rtate: ‘A
Special County Judge, whether lrervlng in a
general capacity or a probate ca city, only
rhould be corn enrated on the fol r owing ba8i8:
The annual ra ary of the Judge of the County P
Court divided by 365 and the quotiant multl-
plied by the number of da 8 actually rewed
by ruch special Juige. Til8 compensation
should be paid from the Offlcerr! Salary Fund of ~the County. t
“Ou October Pth, 1940, I wrote and arked for an opinion with reference to the salary or compensation to be paid the Special Judge who wa8 nominated by the Bar A8sociatlon to act
during the abrence, through lllnes8 of the elected County Judge E. B. Holman 01 thir Coun- ty.
-“In a ietter from you, signed by Mr. W. C.
Caaon, Admlnistratlve.A88istant I received -boples of Opinions NOS. O-722,-6-123& and O-1529, concerning quertion submitted In my letter,
a oopy of which I al80 l ncl@ae.
‘Judge iiolman was detained at his home until the 1st of Jan hr. 1941. On yesterda z? ELssell H. harxi Special County Ju ge pres-
ented to me hi8 claL IA the total amount ‘of
claiming this a8 his compensation from it $$t*$ At through Uecember 31st ? 1940, s copy of nis bill: Inclusive. ‘I enclose
“From the opinions received, I -understan d th:.t tne special Judge is to be paid for each
day that he actually serves, and the compensation to be arrived at as stated on Page 2 of 3pinion No. O-722. AS NW. tiarktell renders nis bill for including sundsys and holidays from every day, payment not August 21st, 1940, ne is requesting the d;:ys tnzt he ?ctuclly served, but for evCry dsy intervening between the first dzy of his appointment until last day.
ItI understand fro:n the ocinions rendered th;t the 3p@cial Judge is entitled to all of the *3 gonorable I. Predeckl, Page
compensation received by the dul elected Judge (in Galveston County, the E ounty Judge receives &,750.00 per annum, and which he received during his ab8enCe) and It ir nec- l rlrary for me to establi8h the number of actual day8 for which he is to be pald. ‘1 therefore respectfully 88k your ‘. opinion to aid me in determining the actual day8 that be beWed, ~whether the tinA i8 reprreented a8 8hown in the Hinuter of the Count Court or whether it includes any minis- duty that deVOlVe8 on the County Judge teria 1 and of which there is no record in the Minute8 of the Probate or Civil Docketr. To rubrtan- tiate or verify his claim, it would be neo- l 88ary th8t the County Clerk chow the number bf day8 that wire actually 8erved by the Special Judge and that the Clerk certlf this statement. The clain that Mr. Mar Ew ell has presented is a statement covering the - entire perfod without any reference to Sun-
dape, holiday8, and when no Probate Civil matter8 came up fcir hearing. At tlmea thr Speelal Judge qpeared at the office of the County Judge and whether any dutle8 were per- formed or not, I am unprepared to say and it might be that 80m8 day8 the Special Judge did not appear at all. In other words, what constitutes in your opinion, a working day for the Special county Judge.” The claim of Honorable iiussell H. hsrkwell presented following claimagainst the County of Galveston for service' rendered as special County Judge reads as follow-s:
January 23r&, 1?41. 11 days in August - - - - - - - - 4143.11 *4 -- y% honorable 1. Predecki, Page 4
4 months at $395.83 per month - - - - - $ 1583.32
Total amount of claim a8 provided by Statute .- - - - - $ 1726.43 Section 1 Article 5 of the State Conetitution pro- vides In part a8 P fo lonr:
"* * *. When the judge of the County C&t ir di8qwlifird in any cane pending in the~county Court the partier intere8ted ma by consent, ap- 1’ point proper person to.try ra d care, or upon
their falling to do 80 a competent perron may be appointed to try the muse In the county when It 18 ending in such mPnner a8 nay be prerorlbed
by aw.” P
Articles 1930, 19313 1932, 1933 and 1934, Vernon's .¬ated Clril Statutes, read a8 follows:~
“Al%. 1930. When a judge of the county
oourt 18 disqualified, the partIe may, by
consent, app.oint a- proper. peroon. tom try- ruch
oa8e.
“Art. 1931. Whenever a judge of the xoun- ti Court 18 dirqualifled to try a civil oa8e
pending In the oounty oourt, and the parties
shall fail at the first term of the court to
agree upon a epeolal judge, the judge 8hall
certify his disquallfioation to the Governor
and the failure to agree upon another to try
the same, whereupon the Governor shall ap-
point some person, learned in the law to try
such case.
“krt. 1932. When a county is dis- qualified to act in any probate matter, he
shall forthwith certify his disqualification therein to the Governor, whereupon the Governor shall appoint some person to act as special in said case, wno snall act’ from term to
term until such disqualification ceases to ex- A special judge so appointed shall re- ist. ceive the same compensation as is now or may *5 gonorable I. Predeckl, Page
hereafter be provided by lar for regular
judges in similar cases, and the commls-
donero' Court shall, at the beginning of
each fiscal year, Include In the budget of
the county, a sufficient sus for the pay-
ment of thr special judge or judges l p-
pointed by the Governor to act for the
regular county judge.
.tryiG a casi, ghe parties or tihelr counsel
may agree upon an attorney Sor the trial there-
of; and, if the shall fail to apse upon an
attorney at or i: eforr the tins it Is called
for trial, .or if the trial of the Case i8
pending and the county judge should become
unable to act, or is absent, and a special is selected who IS disqualified to pro-
oeed with the trial, and the parties thrn to aeleot or agree upon a special
fail
who Is pual%fied, the county judge or special
judge presiding shall certify the fact to the
~Governor Immediately whereupon the governor
shall appbint a specjal judge, qualified to
ttXer2 or%~e2i~0,~~"m~ ~L~lrn~gF
shall prooerd to the trial or dispoe tion of
such case. Any special appointed udge agreed upon or
to try cases s Ll 1 receive the same pay for his services as is provided by law for
county judges. If a county judge fails
"Art. 1934.
appear at the time appointed for holding the or should he be absentduring the term
court,
or unable or unwilling to hold the court, a
special county judge may be elected in like
manner as is provided the election of a Tne special
special district judge. county
judge so elected shall have all tne autnority
of the county judge while in the trial and
disposition of any case pending in said court
8Y'+B EbPn&~Sjft8~&. in3Ulif$J' ef~cfY~&r~$~sSi
held at any time during t0 SUpi<ly the the term, absence, failure or inability of the county or any special judge, to perform
judge, ivhen a special county duties of tile office.
-- honorable I. Predecki, Page 6
judge She.11 have been so elected, the clerk
shall enter upon the minutes of the court,
a record Such as is provided for in like
cares in the district court.W Articles 554, 555, 556 and 557, Vernon’s Code of *
Criminal Procedure, read as follows:
@Art. 554. When judge of ~the county court or county court at lax is di8qualified
in any criminal case pending in the court of which he is judge, the parties may, by consent, agree upon a special judge to try such case.
If they fail to agree upon a special judge to
try such ca6e? on or before the third day of
the term at wnich such~ case may be called shall forthwith
.trial the judge ‘presidin
certiiy that fact to the i50 vernor, who shall
forthwith appoint some practicing attorney
try such ease.
“APti 555. The attorney agreed upon-or appointed shell, before he enters upon his jud e, take the oath of of-
duties as special
fice required by the 8 onstitution.
“Art. 556. ‘When a speoial is agreed upon by the parties or appointed by the Gov-
ernor, as above providrd, the clerk shall enter in the minutes as a plrt of the proceedicgs
in such cause, a record siiowing: That the judge of tne court was dis-
"1. qualified to try the cause.
“2. That such special (naming iAm) was by consent of the parties aFreed upon or
was appointed by the Governor to try the cause.
“3. That tne oath of office prescribed by law has been d.lly a&inistered ts such
special judge. A% special judge selected or
“Art. 5j7. ap;oir,ted in accorcznce witri tile preceding
articles shall receive tne saffie conFenssti3n
as provided by law for regular judges in similar cases."
honorable I. Fredecki, Page 7
It is stated in Texas Jurisprudence, Vol. 25, p.
314, that:
"There are three modes In which a judge may be selected to take the plao8
of a regular county or district judge:
Plrrt, if the regular judge fails to ap-
pear at the appointed time and plaoe
holding hlr court, an election of a special
judge lust be held in accordance with ths prOViSiOnS;
StatUtO~ second, if'the regular cauer dl8quallfied to try is from an
a case, the @rt es thereto may by agree- I
aent appoint 8 special trial judge; third,
should the parties fail to agree on a
spa&l judgr, an appointment may be made
by the governor. The special judge selected
in any of these mode8 should possess
necessary qualifications, and should take the
oath of offioe.n
It is further Stated in Texas Jurisprudence, Vol.
25, pp. 325, 326 and 327, as follows:
"&ring the. continued ~absence of- the regular judge, or his continued unwillingness the at-
to serves a special judge elected b the meaning of t rA e constitu- torneys is, within tion and laws, a judge of the court. Oenerally speaking, he has all the authority of regular
judge with respect to cases that proper&y come before him, or, at least, he has such of the
regular judge's powers as are necessary
enable him to transact the business of the court. An elected special judge may preside
--even at a special term of court--in all
cases in which he is not disqualified; his au- thority is not limited to the trial of cases
in whir3 reguiar is not disqualified.
tie may dispose of tne unfinished business of
the rewlar incumbent or of another special
judge; he may rdjourn court from day to day;
and nt; may validate acts of ;lis predecessor.
It sems, Iioiiever, tllat a sFecia1 judge Aas no autllority beyond We particular court wAcn he is elected to nold.”
goa. I. Pradaokl, Pago 8
It Is further stated In Taxaa Jurlsprudenoe, Vol.
25, p. 309, that:
qnder the oonstlthtlon and statutes there Is but one 00oaSiOn UpOll whloh tb
parties, through mutual oonsant, may ‘ap-
point a psopar person to try the oaaa’;
auoh ocoaslon arises when tha ragular
Is legally dIaqualIiIad. Tha 4bsanoa of
the regular ior any raaaon doer not
authorize suoh appointment; In auoh a oaao
tha apeolal judge Is to be eleoted by tha
bar, or appointed by the governor. On the
other hand, the dIsquallf~oatIon of a Judge
Is not ground- ror tha elaotian a apaoial
judge by attorneya, unlesa, It adams, tha
parties or the governor should id1 to daaIg-
nata 8 judge to sit’ in the plaoa of tha ona
who I4 disquallrlad. n
We quota rurther tr’om Texan JurIaprudanoa, Vol. 25,~. OS r0ii0wi3:
t 308 #
*The seleotlon or appointment cU a speolal judge is proper only upon the oon-
dltions In the constitution epeoirled end
atetutea. A ooordlng to suoh oondltlons a
speolal oounty or distilot judge may ba
seleoted by oonsent of the parties when the
regular judge Is dlaquallrled; and an elao-
tion of a special judge by attorneys Is
proper should e district judge ‘fail or re-
ruse to hold the court ,’ or, In tha ease or
oounty judges, Ii the judge ‘falls to appear
et the tire appointed ior hcldlng court,,
or should he be absent during the term or
unable or unvrillinc to hold the court. The
foregoing ere the only circumstances In whioh
the selection of a special county or district
judge Is autho:Ized. As we shall see present-
lY, a special Judge may not be seleotcd
riii a vacancy in the judicial ofrlce. The
statutes Drovidlng ror the election of e
special jufige in She event that the regular
jurlre is akent or U:T.T;.LIIJG TO 331.L CCUXT
I-TJ.V-5. 33.:: FjlLL TO I32 C3::“TITUT- OMiL , . . ”
gon. I. -PredeokI, Page 9 67, 68 and 69, Vol. 25, pp. 314, 315, 316
Seotlons as& 317, Texaa’JurIsprudanoa, read In part se iollowar
Wee. 67. Vlth respect to both dlstrlot and county judges, the statutes provide for
the eleotlon of a spaolal judge when the judge Is absent or unable to preside.
regular
Although not aIpreaaly authorlzad In the
constitution, the prooadure ao prorldad la
not objaotIonabla upon oonstItutIonal grounda;
and It la applloable to both regular and
speolal terms.
Vhi purpose oi the eleotlon oi a spaolal Judge $a to prevent a faIlura to hold a term
or the court baoausa of the absanoa of the judge. Aa sbova stated,’ an l laotlon
regular
may be held when the regular judge t8118 to
appear or Is unwilling to hold oourt; but
this Is not the proper procedure whah the Is dlaqualIrIed,
reguler or when a
vaoanoy has ooourdd In the orrloa Itselr.
%eo. 68. A sreolsl judge may be alaotad by the bar either at regular or a spaolal
term. ‘A’here the regular judge fells to appear
at the beginning of the terr+, one day may by-
allowed to elapse before resort la had to an
eleotlon; but this delay Is not neorasary;
the attorneys attending the oourt my proceed
at once to the seleotlon of a speolal jubga.
However, If etter the eleotlon, either on the judge puta
rlrst or saoond day, the regular
In an appearance, he assumes oontrol oi the
court and ouats the special judge of jurlsdlo-
tion. Where the court has been adjourned from
day to day for three deys, because of the
tsllura or the to appear, or vdere oourt
‘Ies been convened end has not been edjourned the term, the election may be held upon
the r.ornlng of the fourth day, unless
regular judge on that Feornlng puts In en
appeerance.
“‘Like elections may be held fror;, time ta tire fiurin- the tCrrl 0T tie c3Ct to supply
the absence, reilure or Inability oi’ the jutige,
or of eny special judge, to perform the duties orrioe.'~
“:Cec. 69. An election 0r special juage Is to be held by the prfictlcing attorneys of
the oourt, and the person to be selected 8s
judge must be one of their number. The manner
of conducting the election--the proclamation,
. . ,384 non. I. Predeokl, Paga 10
the duties of the aherlrf, oonatabla and olerk,
and the voting--are preaorlbed by statute. * l *.I)
“The only 1ImItetIon with reepeot to the right of an attorney to vote at the election la that he shall be e preotlolng lawyer of the oourti he may vote although ha resides outalda the ooun- ty and QIstrIot, and may oust his ballot ior
himselr. The majority whloh la aufflolent
l laot la a majority of thou* partIoIpatIng In the eleotlon and not a majority or the attorneya preaant In.oourt. Seotlona 2 and 3 of Artlolcl 3926, Vernon’s Annotated - -. . _ -- raaa 44 roliowa:
oirii stat.utea,
“2. For eaoh oaaa or lunaoy dIapoaad or
by him, ~threo dollara~ to be paid out of the
county trea.4ury. For eaoh oIrI1 aausa f’inaliy dIaposad of by him by trial or otherwise, .threr dollars, to bs taxed agelnst (agaInat the party oaat In the suit; provided that If said party
- has riled his oath of Inability to pay ooats
- during the-progress of the- osusa, or be unable
to pay ooats, then the oountg judge ahall be
allowed by the oommIssIonera oourt suoh oaa-
penaatlon It may daam proper, not to rxoaed
three dollar8 for eaoh gtata oasa.
“3. For presiding over the oommIsaIonera~ oourt, ordering l leotlona end makingreturns
thereof, hearing and determInIng oIvll oausea,
Ii any, and transacting all other ofrloIal busl- ness not otherwise provided ior, the County
Judge shall reoelve suoh salary irom the County Treasury as the oommIssIonersf tiourt may allow
him by order, payable monthly rrom the general
tunds of the county, provided, that In counties
having $29O,OoO,OOO.OO assessed valuation,
or more, end which heve established therein
Institutions the care of both dependent
end delinquent boys end Clrls, County
Judge shall receive as ex-officio salary, for es rees or orfloe,
not to be accounted
and in e6dItIon to all amounts allowed under
the Maximum Fee Bill, further sum oi
$3,000.00 per BMW, payable monthly out of .
the general funds of the county.”
Sections 3 ktiole 3926, supre, no longer applies to oountles whose oftloers are compensated on a salary basis under ArtIole 3912e, Vernon’s Annotated Civil Statutes. Sec-
- 3% . gon. I. Predeckl , Peg0 11
tion 2 of aald atatuta la applIoabla to all oountlea whether aa a salary or rue beala, but In oountles whose oounty orrIoIala l ra oompenaated on l alary baala, the f8a I4 oolleoted end paid snto the *OrrIoers~ Sslary Fund”, while In iea counties tha faes oolleoted are paid to the County Judge to be eooounted ror by him under appropriate stetutaa.
Artlola 1052, Ooda or CrIm.lnal Prooedure, provIdaa aa fallows I
Ybrea Dollars ahall be paid by the oounty to the County Judge, or Judge of the
Court at Law, and Two Dollar8 and ility
oenta ahall br paid by the oounty to the
Juatlor of the Peaok, ror eaoh orlminal
notion tried’ and ilmlly dIsposad of boron
him. Provided, however, that In all ooua-~
tlaa having population of 20,000 or laaa,
the Jaa6Ioo ai the Pee00 shall rooolvo a
trial iaa of Three Dollars. Such Judge or
Juatloe ah411 present to the ConsaIssIoners~
Court of hla oow&ty et a regular term thera-
of a written l o o ount apaoISyIng eaoh orImIna1
ao 4 Ion- In whloh he olaims suoh roe, oertl-
iled by suoh Judge or Justloa to be oorreot,
and filed with the-County Clerk. !lhe CoamIa-
slonera’ Oourt shell approie auoh aooount
for auoh amount as they rind to ba oornct
and filed with the County Clerk. Ihe Commla-
aIoneral Court shall approve auoh aooount
ior suoh amount aa they rind to ba oorraot,
and order [4] drart to be Issued upon thr
County Treeaurar In ravor of auoh Judge 6r
Justloo for the amount ao approved. Por-
tided the ConmlsaIonera~ Court shall not
pay eny account or trio1 rees In sny oaae
tried and In whloh an aoqulttal Is had
unless the State of Teres waa represented
In the trial of seld o4use by the County or his assistant, Criminal Dls-
Attorney,
trlct Attorney or his esslstent, end the
certllloste of said Attorney Is stteched
to said aooount certifying to the faot
that said ceuse was tried, end the Stete
of Texas was represented, end that In his
judgment there was surricient evidence in
said oeuse to demand a trial of same.”
Articles 1887 and 6821, Vernon’s knnotsted Civil reed es follows: Statutes, Should the 1 udge oi a
“Art. 1887.
dlstrlot court on the firsti or eny future refuse to hold
day of a term, fell
oourt, the practicing lewyers of the court
.-. . . Bon. I. Predaokl, Page 12
praaant may aleot from among their number
a apaoIal judge who shall hold the oourt
and prooaad with the buaIneaa thereof.”
“Art. 6821. The aalerIes of speolal Judges oommlsaIoned by the Governor In
obedlanoe to Seotlon 11, Artlole 5, of the
Constitution, or elrotsd by the practlolng
lawyera or agreed upon by the parties au
provided by law, shall be determined on&
paid aa rollowe:
*1. Eaoh apeoial judge ahall raoelva the sum, pay es dietriot judges for ovary
day that he may be oooupled In performing or judga and those ooimaIaaIoned
the duties
by the Governor rhail also reoelve the sum)
pay aa dietriot u&gas for avery day they
may bo naoaasari 1. y oooupled In going to end
returning rrom the plao e where they may be
required to hold. oourt.
“2. The amount of suoh adlary shall
be kaoertalned by QIiIdIng the aalary al-
lowed a dlstrlot judge by three hundred end
sixty-rive, and then tiultlplylng the quotient
by the number of days ectuelly served by tha
speoia& judge.
: (I 3. A judge ao oommIsaIoned ahall, In order to obtain his s01ary, present his sworn
aooount to the Comptroller, ahowIng the number to and or days neoesserlly oooupled In going
returning rrom auoh place, aoocaapanIed by that he wqs duly oommlssIoned. Suoh
evldenoa shall be oertliled to be oorreot by
aooount
the judge of the district, or by the clerk
of the court In whloh the services were per-
romea.
“4. :. judge so elected or egreed upon ah811 be paid for his services on presentation
to the Comptroller of the oertlfioete of the
clerk of the court in which such services were performed, showlnC- the record of such election appointment end strvIces, 5d accompanied
by sworn account of such :udy_e sliming. the
nunber of days, ectually served by him as such
special judge."
It will be noted that Artlole 6821, supra, provides oompensatlon for s?eclal district judges, who ere appointed by the Governor, or elected, or agreed upon. There is no such for paying special provision oounty judges In the above article. 1933, supre, provides
Artlole oompensatlon for speolal county
.- . '.
aon. I. Predeokl, Page 13
j0ages appointed or agrerd upon, but does not mention or pro- Tl4e oompcnsatlon for speolal ooudy judges who are eleoted by the bar as euthorlzod by Artiole 1934, supra.
The above mentioned statutes, In both the Code oi Prooedure and the Civil Statutes, prwldlng oompensa- &idnal tion rtx speolsl oounty apply in oaacs where judges, apparently judge Is oompensated on a tee basis. tha regular oounty The judge 0r Gliteston County Is ocunpensets4 on an regular oounty snnual salary baslr. Seotlon 4, Artlolr 39120, provides In arreot thst whom thr oounty ofilolals are oompensated on an snnual salary basls It shall br the duty or all oitloera to ahargo and oolleot in the mnner ruthorlzed by law all rers en4 samlesIons whloh rrr permitted by law to be assessed an4 oolleot- 04 ror all oftidal aerrlors perfOrms by them. As and when suoh revs are oolleoted they shall be deposited In the Offloors’ Salary run4 or runds provided in Aot. We hare bern unable to rlnd e.ompensatlon ra a4 Statute providing speolal oounty judgeseen- ing ln that oapaolty in oountles where the regular oounty ju4ge 1s oompensated. on an annual salary barls.
It la a well settled law that statutes presoribing fees ror pub110 ofrloeis are strlotly oonstrued;~snd henoe a right rees may not rest In lmplloatlon. (Tax. Jur. Vol. 34, p. 508; 246 S. W, 654; B&or4 MoCalla v. Clty of Rookdale, v. Robln- son, 244 S. W. 807).
Ad ofrloer n~3y -not~olalin or reeoh any money wlthout~ law authorizing him to ‘do so, and olearly flxlng the amount to whloh he Is entItled. v. Robinson, 244 5. PI. 807; MoLennan County 1. (Tex. Jur., Vol. 34, &5;;; -34 S. W. 347; Duolos 1. Harris County, 291 S. VI. 611, arrirmeb 298 s. w. 417).
As above stated, we hare found no stdtute author- lzing the peyment of oompenaetlon to 8 special county judge in a county where the regular county judge Is oompenseted or.
an annual salary basis. Therefore, in dew Of the absence of such statutory authority, we are of the opinion that no com- pensation is provided for a speoial county in counties where the rsgular county is oompensated on an annual salary basis.
Our Opinion Nos. O-722, O-1234 and O-1529 are here- by expressly overruled in so far as they conflict vilth this opinion. Trusting that the foregoing fully answers your in-
qulry, we are
Yours very truly A:::R9 :jrb A’PTORNXY GiWflAL OF TEXAS
By /a/ Ardell Williams mIs Opinion Considered Assistant and approve4 in limited conferenoe