    OFFICE OF THE ATTORNEY GENERAL . STATE OF TEXAS

   JOHN        CORNYN




                                               June 19,200l



The Honorable Kaye Messer                              Opinion No. JC-0389
Donley County Attorney Pro-Tern
220 South 10th Street                                  Re: Whether a commissioners court is required
Memphis, Texas 79245                                   to pay the same salary to each of the county’s
                                                       constables  (RQ-0337-JC)


Dear Ms. Messer:

         You ask whether the Donley County Commissioners Court may set a salary for the constable
of precincts 1 and 2 based on the actual needs of those precincts, and whether the salaries for
different constables in the same county may differ. The salary of a constable must reflect the duties
imposed upon him or her by statute, even if the sheriff is expected to serve process in the constable’s
precinct. In some cases, the responsibilities of the constable in one precinct of the county are more
extensive than those of a constable in another precinct because the first constable has been assigned
duties in addition to a constable’s statutory duties, or because one precinct has a greater need for law
enforcement activities than does another precinct. Under such circumstances, the salaries may vary
to reflect those differences in workload, as long as each salary is reasonable. You also ask whether
the salary set by the commissioners court for the constable of precincts 1 and 2 is reasonable. The
specific amount that constitutes a reasonable salary is a fact question within the discretion of the
commissioners court, subject to judicial review for abuse of discretion.

         Donley County has two justices of the peace, one elected to precincts 1 and 2 and the other
to precincts 3 and 4. See TEXAS STATE DIRECTORY 339 (44th ed. 2001) [hereinafter DIRECTORY].
There are also two constables, serving respectively in precincts 1 and 2 and precincts 3 and 4. See
TEX. CONST.art. V, 9 18 (in each county with a population of less than 18,000, commissioners court
may divide county into not more than four precincts); DIRECTORY,supra, at 339 (population of
Donley County is fewer than 4,000).

        You inform us that in the last general election the position of constable for precincts 1 and
2 was filled for the first time since 1969, when the commissioners court set an annual salary of
$1 .OO.’ After the election, the commissioners court set an annual salary of $3,170, plus a vehicle
allowance of $100 per month and retirement, for the constable of precincts 1 and 2.2 The constable
for precincts 1 and 2, however, wishes to receive the same compensation as the constable for


        ‘Letter from Honorable Kaye Messer, Donley County Attorney Pro-Tern, to Ms. Susan Gusky, Chair, Opinion
Committee (Jan. 5,200l) (on file with Opinion Committee) [hereinafter Request Letter].

        21d.
The Honorable Kaye Messer         - Page 2          (JC-0389)




precincts 3 and 4, whose annual salary is $1 7,146.9L3 You explain that the sheriffs office has
performed the duties of the constable for precincts 1 and 2, serving the warrants and citations that
both a constable and sheriff are required to serve when directed to that officer by legal authority.
See TEX. LOC. GOV’TCODEANN. $9 85021(a), 86.021 (Vernon Supp. 2001) (sheriff and constable
shall execute and return process that is directed to the constable or sheriff by a lawful officer); see
also TEX. R. CIV. P. 15 (writs and process shall be directed to any sheriff or constable within the
state); Tex. Att’y Gen. Op. No. H-595 (1975) (sheriff does not have exclusive authority to execute
process). Thus, you suggest that the constable for precincts 1 and 2 will serve no process during his
tenure. The constable “shall attend each justice court held in the precinct,” TEX. LOC. GOV’T CODE
ANN. 8 86.021(e) (V emon Supp. 2001), but based on information provided by the justice of peace
for precincts 1 and 2, you believe that the constable may be required to attend justice court for no
more than 24 hours per year.4

         You state that the position of constable for precincts 3 and 4 has been filled and utilized for
over 20 years. 5 “The constable for precincts 3 and 4 is a ‘first response’ officer,” that is, the sheriffs
dispatcher notifies him immediately in every matter requiring a law enforcement officer in the area!
Unlike precincts 1 and 2, precincts 3 and 4 cover a rural area some distance from the sheriffs office,
and the constable located in this precinct performs many duties in addition to serving process and
attending justice court hearings.

        You ask whether the Donley County Commissioners Court may set a salary for the constable
of precincts 1 and 2 based on the “actual needs” of that precinct. You also ask the following
questions:

                           2. Can the salaries for different    constables   in the same
                    county differ?

                            3. Is the salary set by the Donley County Commissioners
                    court for the newly-elected position reasonable?7

        Article V, section 18 of the Texas Constitution provides for the office of constable, and
article XVI, section 61 requires the commissioners courts of all counties to compensate constables
on a salary basis. TEX. CONST. art. V, 8 18; art. XVI, 9 61; see also TEX. LOC. GOV’T CODE ANN.
ch. 152 (Vernon 1999 & Supp. 2001) (authority of commissioners court to set salaries of district,
county, or precinct officer of employees). The Texas courts have issued a number of opinions on



        31d. at2.




        Vd.

        Vd.

        ‘Id.
The Honorable   Kaye Messer     - Page 3            (JC-0389)




the commissioners courts’ responsibility to set salaries for county constables. See E&or County v.
Stringer, 843 S.W.2d 477,479 (Tex. 1992); Vondy v. Comm ‘r-sCourt of Uvalde County, 620 S.W.2d
104, 108 (Tex. 1981); Douthit v. Ector County, 740 S.W.2d 16,17 (Tex. App.-El Paso 1987, writ
denied); Vondy v. Comm ‘r-sCourt of Uvalde County, 714 S.W.2d 417 (Tex. App.-San Antonio,
1986, writ refd n.r.e.); Bomer v. Ector County Comm i-s Court, 676 S.W.2d 662 (Tex. App.-El Paso
1984, writ ref d n.r.e.). In its most recent opinion on constables’ salaries, the Texas Supreme Court
summarized the law as follows:

                         One of the duties the constitution entrusts to the discretion of
                the commissioners court is the setting of constables’ salaries. Tex.
                Const. art. XVI, 8 61. In Vondy v. Commissioners Court, 620 S.W.2d
                 104 (Tex. 198 l), we held that this provision imposes a mandatory,
                ministerial duty on the commissioners courts to set a reasonable
                salary. Id. at 109. Thus, while the district court may order the
                commissioners     court to carry out its constitutional duty to set a
                reasonable salary, the district court cannot substitute its discretion for
                that of the commissioners court by making that determination itself.
                Id. Once the commissioners court acts, the district court may review
                the commissioners’ orders to determine if they are arbitrary, or
                otherwise constitute an abuse of discretion. Id.

Stringer, 843 S.W.2d at 479-80.

         Thus, the commissioners court has broad discretion to set constables’ salaries, but there are
limits on the court’s discretion as indicated by judicial decisions finding that the cornmissioners
court had abused its discretion in setting the constable’s salary. In Vondy v. Commissioners Court
of Uvalde County, 620 S.W.2d 104 (“Vondy l”), the constable, Mr. Vondy, sought a writ of
mandamus against the commissioners court to compel it to set a reasonable salary for his office as
constable of precinct 6, Uvalde County. Id. at 104-05. The Texas Supreme Court found that the
commissioners court could not refuse to set a salary for the constable. Id. at 109. It determined that
the district court should have granted the mandamus sought by Vondy. Id.

        The trial court issued a writ of mandamus ordering the commissioners         court to set a
reasonable salary and the commissioners court set a salary of $40.00 per month. Vondy, 7 14 S. W.2d
at 419. It thereafter sought to be discharged from any further duties under the writ and was
discharged by the district court. Id. Vondy’s appeal of this ruling was heard by the San Antonio
CourtofAppealsin     Vondyv. Commissioners Courtof Uvalde County,714S.W.2d417(“VondyII”).
Id. The commissioners     court argued that $40.00 per month was a reasonable salary “under the
circumstances,” which included (1) the lack of funds available to pay Vondy; (2) that Vondy knew
when he sought the job that there was no salary; (3) that the precinct 6 area had adequate law
enforcement protection so there was no need for Vondy’s services; and (4) that Vondy’s concurrent
involvement in a private security business presented a conflict of interest in having him serve as
constable. Id. at 42 1.
The Honorable Kaye Messer       - Page 4           (JC-0389)




         The San Antonio Court of Appeals rejected these factors as not providing an adequate basis
for determining a reasonable salary. Id. at 425 (motion for rehearing). It pointed out that constables
are peace officers, with many duties imposed upon them by the Code of Criminal Procedure, in
addition to their duties of serving process and attending upon the justice court under section
86.02 1(e) of the Local Government Code. Id.; see TEX. CODECRIMPROC. ANN. art. 2.12(2) (Vernon
1977 & supp. 2001) (constables are peace officers); see also id. arts. 2.13 (Vernon 1977) (duties of
peace officers); 6.05 - -07 (Vernon 1977 & Supp. 2001) (prevention ofthreatened injuries and death).
The commissioners court did not consider the duties imposed upon the constable by statute, evaluate
the work performed by or required of Vondy or otherwise deliberate about what would be a
reasonable compensation for him, but considered only the four factors rejected by the court, in
particular, the county’s lack of need for Vondy’s services. Vondy II, 714 S.W.2d at 422.

         The commissioners court may not “attempt to restrict or abolish a constitutionally established
office by refusing to reasonably compensate the holder of such office,” nor may it “attempt to
abolish or restrict the office of constable by refusing to allow or by preventing the elected official
from performing those duties required of him.” Id. at 422. In view of the numerous duties imposed
by law upon the constable, the court found that the salary of $40 per month, or $.20 an hour was
unreasonable as a matter of law. Id. at 42 1; see also Douthit, 740 S. W.2d at 17 (where constable did
not serve process or attend court sessions but responded to summons concerning thefts, murders and
breaches of the peace, commissioners court abused its discretion in setting salary of $1 .OOper year);
Comm ‘rs Court of Houston County v. Rodgers, 691 S.W.2d 753, 756 (Tex. App.-Tyler 1985, no
writ); (constable’s salary of $1 .OO per year was the equivalent of no salary at all); Bomer, 676
S.W.2d at 664-65 (where constables performed no work, no issue was raised as to reasonableness
of salary of $20.00 a month).

          We turn to your first question, whether the Donley County Commissioners Court may set
a salary for the constable of precincts 1 and 2 based on the “actual needs” of that precinct? Vondy
II tells us that the commissioners court must be able to articulate a reasonable basis for the salary it
sets for the constable. Furthermore, it rejects as inadequate the four factors relied upon by the
Uvalde County Commissioners Court in setting the constable’s salary, that is, (1) the lack of funds;
(2) the constable’s knowledge that no salary had been set for the office; (3) the adequacy of law
enforcement protection such that the constable’s services were not necessary; and (4) the constable’s
involvement in a private security business. The fact that the sheriffs office has performed the duties
of the constable for precincts 1 and 2 so that the constable’s services are unnecessary is not an
adequate basis for setting the constable’s salary. Vondy II, 7 14 S.W.2d at 425. To the extent that
you base the “actual needs” of precincts 1 and 2 on the understanding that the sheriff and not the
constable will serve process, the “actual needs” of precincts 1 and 2 are not relevant to setting the
constable’s salary. The constable’s salary must reflect his statutory and constitutional duties. Id.
at 421.

        If the commissioners court could authorize the sheriff to serve all process in precincts 1 and
2, removing that function from the constable and transferring it to the sheriff, we believe it could



        Vd.
The Honorable Kaye Messer       - Page 5           (JC-0389)




overlook the constable’s duty to serve process in setting his salary. See id. at 422, n.3 (noting that
the Uvalde commissioners       court did not attempt to assign any of Vondy’s duties to other law
enforcement agencies and questioning whether the commissioners court had authority to do so). The
commissioners court has some authority to decide which county officer should perform a specific
county function, but if the legislature has exclusively delegated a particular duty to a constitutional
county officer, the commissioners court may not transfer it to another officer. See Comm ‘rs Court
of Titus County v. Agan, 940 S. W.2d 77’80 (Tex. 1997). Although both the sheriff and the constable
have a statutory duty to serve process, the commissioners court may not assign all service of process
to the sheriff, because the district and county courts, and not the commissioners court, choose the
officer who serves process. See TEX. R. CIV. PROC. 15; Tex. Att’y Gen. Op. Nos. JC-0214 (2000)
at 4; DM-273 (1993). Only when the commissioners court issues the process necessary to execute
its powers and duties, may the court choose whether to direct the process to the sheriff or a constable
of the county. See TEX. Lot. GOV’T CODE ANN. 0 81.022(a) (Vernon 1999).

        It is however possible that the constable of precincts 3 and 4 may have more extensive duties
than the constable in precincts 1 and 2 because he has been assigned duties in addition to his
statutory duties, such as being a “first response” officer, or because precincts 3 and 4 have a greater
need for law enforcement activities than do precincts 1 and 2. In setting the salaries of constables,
the commissioners court may consider these differences in duties assigned to and performed by
constables of different precincts.

         You next ask whether the salaries for different constables in the same county may
differ. This office has recognized that circumstances might exist “in which certain precinct officials
holding equivalent positions might be compensated in differing amounts.”            Attorney General
Opinion JM-770 determined that the commissioners court might prescribe different salaries for the
constables of different precincts if the circumstances in each precinct reasonably required different
salaries and if each salary is in itself reasonable. Tex. Att’y Gen. Op. No. JM-770 (1987); see also
Tex. Att’y Gen. Op. No. DM-5 1 (1991) at 2 (it would not be per se unreasonable for the
commissioners court to base the pay scale for justices of the peace on the volume of cases filed in
their respective courts). Accordingly, the salaries of constables in different precincts may differ if
the circumstances in each precinct reasonably required different salaries and if each salary is in itself
reasonable.

         You finally ask whether the salary set by the Donley County Commissioners Court for the
newly-elected position is reasonable. We cannot advise you whether the salary set for the constable
of precincts 1 and 2 is reasonable. The specific amount that constitutes a reasonable salary is a fact
question within the discretion of the commissioners court, subject to judicial review for abuse of
discretion. See Stringer, 843 S. W.2d at 479; Tex. Att’y Gen. Op. Nos. DM-5 1 (199 1) at 2; JM- 10 19
(1989) at 2; JM-770 (1987) at 3.
The Honorable Kaye Messer      - Page 6            (JC-0389)




                                       SUMMARY

                        The salaries of constables must reflect the duties imposed
               upon them by statute, even if the sheriff is expected to serve process
               in a particular constable’s precinct. In some cases, the responsibili-
               ties of the constable in one precinct of the county are more extensive
               than those of a constable in another precinct because the first
               constable has been assigned duties in addition to a constable’s
               statutory duties, or because one precinct has a greater need for law
               enforcement activities than does another precinct.         Under such
               circumstances, the salaries may vary to reflect those differences in
               workload, as long as each salary is reasonable. The specific amount
               that constitutes a reasonable salary for a constable is a fact question
               within the discretion of the commissioners court, subject to judicial
               review for abuse of discretion.

                                              Yo    s ve   truly,



                                             riJVi!!i
                                              JOHN     CORNYN
                                              Attorney General of Texas



ANDY TAYLOR
First Assistant Attorney General

SUSAN D. GUSKY
Chair, Opinion Committee

Susan L. Garrison
Assistant Attorney General - Opinion Committee
