Case Information

*1 OFFICE OF THE ATTORNEY GENERAL OF TEXAS

AUSTIN

Bupnadile 14,

Onf 294

Honorable Stephen P. Robert

County Attorney

DeWitt County

Cuero, Texas

Dear Sir:

Opinion No. 0-8939

No. Office of DeWitt County.

Your request for opinion has been received and carefully considered by this department. We quote from your request as follows:

"For the last 8 years of more the County Judge of DeWitt County has received a salary of $3500.00 per year.

"The population of DeWitt County was shown under the 1930 Federal Census as being 87,441, but is shown under the 1940 Census as 24,972.

"Article 3883, R.C.B. Maximum Fees!

Except as otherwise provided in this Act, the annual fees that may be retained by pro- pleth county and district officers mentioned in this Article shall be as follows:

"I, in counties containing twenty-five (25,000) thousand or less inhabitants; County Judge, District or Criminal District Attorney, Sheriff, County Clerk, County Attorney, District Clerk, Tax Collector, Tax Assessor, or the Assessor and Collector of Taxes, Twenty-four Hundred ( $2400.00)Dollarseach;JusticeofthePeaceandConstable,TwelveHundred($ 1200.00) Dollars each.

"Article 39120, R.C.B., See, 23, Commissioners' Court to fix salaries of certain officers

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Hemorable Stephen P. Rebert, Page 2

"The Comrizaionere' Court in oounties having a population of twenty thousand ( 20,000 ) inbabitants or more, and leap than one hundred and ninety thousand ( 190,000 ) inbabitants aceording to the last preceding Federal Censeus, is hereby authorized and it abeill be its duty to fix the salaries of all the following named offi- cers, to-vit: sheriff, asseasoor and collector of taxes, oounty judge, oounty attorney, induding oriminal alatriat attorneys and oounty attornays who perform the duties of distbiet attomeys, district alexk, oounty clerk, treasurer, hide and animal inspector. Each of said officers shall be paid in money an annual salary in twelve (12) equal installments of not less than the total sum eamed as compensation by him in his official aspecity for the fiscal year 1935, and not more than the maximum amount allowed such officer under lavs exiating on August 24, 1935. "The question raised here 181 "Because of the reduction of DeWitt County's population under the 1940 Census to a figure under 25,000 and besause of the apparent confilet between the tre above shown articlea, would the Commissioners' Court be prevented from setting County Judge's salary for the year 1941 at $\$3500.00$ per year. Our asaetred valuation for year 1940 is $\$13,041,749.00$ . "My opinion is that Art. 3883 R.C.S. would not apply in our situation and that under Art. 39120, See. 13, R.C.S. the Comnissioners' Court oould set the salary of our County Judge at $\$3500.00$ for 1941. "As soon as it is convenient I vill appreciate receiving an opinion on the question submitted."

Artiolo 39120, Soetion 13, Vernon's Annotated Civil Statutes, reads in part as follows: "See. 13. The Comniscioners' Court in oounties

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Nonorable Stephen P. Hebert, Page 3

having a population of twenty thousand $(20,000)$ inhabitants or more, and less than one hundred and ninety thousand $(190,000)$ inhehitants according to the last preceding Federal Census, is hereby authorized and it shall be its duty to fix the salaries of all the following named offi- oers, to-vit: sheriff, assessor and collector of taxes, county judge, county attorney, including criminal district attomeys and county attornys who perform the duties of district attomeys, district clerk, county olerk, treasurer, hide and animal inspector. Each of said officers shall be paid in money an annual salary in twelve (12) equal installmente of not less than the total sum earned as compensation by his in his official capacity for the fiscal year 1935, and not more than tho maximum amount allowed such officer under laws existing in August 24, 1935; provided that in counties having a population of twenty thousand $(20,000)$ and less than thirty-seven thousand five hundred $(37,500)$ according to the last preceding Federal Census, and having an assessed valuation in excess of fifteen Million ( $\$15,000,000.00$ ) Dollars, according to the last approved preceding tax roll of such county the maximum amount allowed such officers as salaries may be increased one (1\%) per cent for each one million ( $\$1,000,000.00$ ) Dollars valuation or fractional part thereof, in excess of said fifteen Million ( $\$15,000,000.00$ ) Dollars valuation over and above the maximum amount allowed such officers under laws existing on August 24, 1935; ..."

Article 3891, Vernon's Annotated Texas Civil Statutes, reads in part as follows: "Each officer named in this Chapter shall first out of the current foes of his office pay or be paid the amount allowed him under the provisions of Article 3885, together with the salaries of his assistants and deputies, and authorized expenses under Article 3899, and the amount necessary to cover costs of premium on whatever surety bond may be required by law. If the current foes of such office collected in any year be more than the

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amount needed to pay the amounts above specified, same shall be deemed excess fees, and shall be disposed of in the manner hereinafter provided.

"In counties containing as many as twenty-five thousand and one (25,001) and not more than thirty-seven thousand, five hundred (57,500) inhabitants, district and county officers named herein shall retain one-third of such excess fees until such one-third, together with the amount specified in Article 3883, amounts to thirty-five hundred Dollars (43500). Frecinet officers shall retain one-third until such one-third, together with the amount specified in Article 3883, amounts to eighteen hundred Dollars (41800). ....."

We quote from the recent case of Macogdoches County vs. Vinder (Beaumont Court of Civil Appeals) 140 SW (2d) 972, (writ refused) as follows:

"The following facts are without dispute: Appolise, Vinder, was the only elected, qualified and acting County Clerk of Macogdoches County during the years 1937 and 1938. Macogdoches County was under the salary set law, Article 3912e, section 13, Vernon's Ann. Civil Statutes, and Article 3891, R.C.S., Vernon's Ann. Civ. St. art. 3891. Under these statutes, the salary of the County Clerk of Macogdoches County was governed by the minimum of salary earned in 1932, and a maximum salary of 43,500. The County Clerk of Macogdoches County in 1935 earned as compensation of his office the sum of 43,286.16. On January 13, 1936, at a regular session of the Commissioners' Court, an order was entered by saidjcourt fixing appolise's salary at 43,286.16 the amount earned as salary by the county judge of said county in 1935. Later in said month, January 31st, at a called session of said court, his salary was fixed at 43,350 per year. On January 11, 1937, the commissioners' court in regular session fixed his salary at 43,000, for that year, and on

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Nonorable Stephen P. Hebert, Page 5

January 10, 1938, said court fixed his salary at $\$3,000$ for said year. This was $\$286.16$ less than the minimum salary for 1935, and $\$350$ less than the salary as fixed by the order of January 31, 1936. Appellee prayed judgment for $\$872.32$ , the difference between the $\$3,000$ per year for 1937 and 1938, and the minimum of $\$3,286.16$ as fixed by the order of January 13, 1936, or in the alternative, for judgment for $\$700$ if the order of January 31, 1936, passed at the ealled session be found proper. The judgment was for $\$572.32$ . "We think the order fixing appolles's salary made at the regular term on January 13, 1936, was in accordance with the law, and that the amount then fixed as the annual salary of appolles, $\$3,286.16$ , under the facts and the law was proper, and is controlling here. Article 3912e, section 13, Vernon's Ann. C1v. St. F1kes the salary of County Clerks in the class of counties in which Macogdoches fell, at not less than the total sum earned by him in his official capacity for the fiscal year 1935 and not more than the maximum amount allowed such officer under laws existing on August 24, 1935. The legislature having prescribed the minimum amount of salary the official earnings is 1935 and that being shown to have been $\$3,886.16$ , the conalcalopers' court did not have the authority to ignore this statutory provision of minimum salary and fiv the salary at $3,000. The provisions of the statute authorizing the conalcaloners' court to fix the salary at any sum not less than a certain minimum, and not more than a certain maximum, are mandatory, and could not be ignored by the numbers of the court at their discretion. The order fixing appolles's salary at $\$3,000$ was without authority, and so void.

Opinion No. 0-2582 of this department dealt with a situation relative to the salaries of the officers of Travis County, Texas, where the population of that county had increased from 77,777 inhabitants in 1930 to 110,686 inhebitants according to the 1940 census. This opinion holds that the change

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Nonorable Stephen P. Hebert, Page 6

In the population of Frevis County, at shown by the Foderal Census of 1940, has no effect whatever upon the salaries of the district and county officers named in Article 39120, Sootion 13, V.A.C.B. and that the maximum salary to be allowed ouch offieer was the maximum allowed the offieer by laws existing August 24, 1935, to-wit, 44,750.00. We onelose herewith a copy of said opinion.

Opinion No. 0-2560 of this department holds that the conmissioners' court of Limestone County, Texas, should fix the salaries of the offielals of said county named in Article 3912e, Sec. 13, V.A.C.B., for the year 1941; that the mininum salary of each such offieer cannot be loaa than the total sum earned as compensation by him in his offieial capacity for the fiteal year 1935 and that the maximum salary of each above mentioned offieers could be the maximum amount allowed him under laws existing August 24, 1935, plus one per cent for each one million dollars valuation of fraditional part thereof in exeece of fifteen million dollars. This opinion dealt with a situation where there was a decrease in population. We enclose herewith a copy of said opirion.

On August 24, 1935, the population of DeWitt County, Texas, according to the then last preceding Federal Census of 1930 was 27,441 inhabitarte, and at that time, to-wit, August 24, 1935, the maximum amount allowed the ceunty judge of DeWitt County, Texas, under Artilee 3883 and 3931, Vernon's Annotated Texas Oivil Statutes, was the sum of 43,500.00.

In view of the foregoing authorities, you are respectfully advised as follows:

1. The maximum amount at which the conmissioners' court may sot the salary of the county judge of DeWitt County, Texas, is $\$3500.00$ .
2. The conmissioners' court has no authority to set the salary of the county judge of DeWitt County, Texas

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Fronovable Stephen P. Hebert, Page 7

at any yon leas than the total oun eamed an eompenetion by him in his official cepasity for the fiteal year 1995. (Hovever, this an eannot oxesed $\$3500.00$ ).

Very truly youre

WJF:AV

APPROVEDDEC 11, 1940 Berardo. $P$ m ATTORNEY GENERAL OF TEXAS