              THEATLTORNJEYGENERAL
                               OF   TEXAS
                             AUS-        aa. TEXAS

                              December 17, 1962


    Honorable Carleton       P. Webb           Oplnlon No. WW-1499
    County Attorney
    Qarza County                               Re:     Legality of the election
    Post., Texas                                       of oonstables   for precincts
                                                       2 and 4 in Oarza County under
                                                       the stated facta,   and a re-
    Dear Mr. Webb:                                     lated question.
                Your redpest for an opinion from this office   ooncerne
    the legality   of the election of conatablee for precincts   2 and
    4 of ffarza County who were eleoted by majority vote at the Nov-
    ember 6th, 1962, Qeneral Eleotion.
                A related     pueatlon     is raised    by you a8 followa:
                “Another question has arisen in regard to
         the same’thing, a8 to the effwt        OS’39121, VATS,
         Section 9, In regard to the aalarg of the Justloe
         of Peaoe and Constable.       The salary of the Juatlce
         of Peace in Precinct      One IS set at $3600a year.
         In 1957, the Commissioners~ Court set the salary
         for Constable and Justloe OS Peace In all other
         precincta    besides Prealnct One, at .One Dollar a
         year.     The queatlon confronting    the Commissionera’
         Is of course, the matter of setting salaries       of
         the new Juatlce of Peace and Constables if legally
         elected,    and whether or not they are bpund by any
         restrictlons     In regarda to the matter of setting
         salaries.     * O .‘I
                Section     18, Artlole   V of the Texas Cbnstltutlon,    which
    create8   the office     of constable,   provide8 In part a8 follows:
                Vet-;18. Each organized county In the State
         now or hereafter   existing,   shall be divided from
         time to time, for the convenience of the people,
         Into prealnata,   not less than four and not more
         ,than eight.  ~Dlvlslona shall be made by the Com-
         mlaslonera Court provided for by this Conetitution.
         In each such precinct     there shall be elected one
         Juatlce of the Peace and one Constable,      each of
         whom ahall hold hi8 office     for four yeara and un-
         til his auccesaor ahall be elected and qualified,
          . . .




.
    lion,. Carleton    P. Webb; page 2 (W&1499 )


                  Section 28, Article V of the Texas Constitution        pro-
    vldes for     the filling   of.vacanclea    created in certain judicial
    offlcea.      No constitutional    provision    can be found which pro-
    vldea for     the filling    of vacancies In the office    of constable.
                  Ho$ever,   Article   2355, Vernon’8   Civil    Statutes,   pro-
    .videa    in part:
                   “The Court flommlssloners    Coury shall have
             power to fill   vacancies In the office,of:      County
             Judge, County Clerk, Sheriff,    County Attorney,
             County Treasurer, County Surveyor, County Hide
             Inspector,. Asseaaor of Taxes, Collector     of Taxes,
             Justides of the Peace, Constables,     and County
             Superln’tendent of Public Instruction.      Such
             vaoancles,shall   be filled  by a majority vote of
             the members of said Court, present and voting and
             the person chosen ahall,hold    office  until the
             next general election.”
               That a vacancy did exist In the office of constable
    In Precincts Two and Four of Garea County, cannot be doubted.
    Williams v. Caatleman, 112,Tex. 193, 247 S.W. 263, p. 270.(1922),
    and author1 tl    there cited. Also.aee Attorney General’s Opinion
    No. v-178 (19;;).
                 Under the plain and unambiguous language of Article
      2355, supra, these vacancies are to be filled        by the Commlasioners
.   . Court  and the persons   80  appointed  are to  hold  office   until the
      next general election.     Regardless of whether an appointment Is
      or’18 not made, the office     of constable la subject to being filled
      at the next general,electlon     after creation of the vacancy, in
      compliance with the ‘terms and provisions      of Article    2355, supra.
               Pertinent      part8 of Section    65a, Article     XVI of the
     Texas Constitution,      read as follows:
                   n
                          ~Notwlthstandlng other provisions       of this
             Constitution,    the followlngrofflcers     elected at the
             General ElectIonIn      November, 1954 ehall serve only
             for terms 9f two (2) years:         0 e 0tg) Constables D
             At subsequent elections,      such officers    shail be
             elected for the .full terms provided In this Conatl-
             tution.”
               By the plain       Import of the above quoted Section,  the
     next General Election,       at which constablee are to be elected for
.   -




        Hon. Carleton    P. Webb, page 3 (WW1499)


        a four   year term, .wlll   be In November, 1964.
                   We are therefore   of the opinion that the office       of
        constable  ln.Precincte   Two and Four of. Garza County was vacant
        at the general election,    held on November 6, 1962, and could
        properly be filled    by the election  of a qualified    Individual
        thereto,  said Individual   being elected to fill     the unexpired
        term terminating December 31, 1964.
                  Your second inquiry relates to the compensation               to
        be paid the Justices of the Peace and the Constables.
                    Article  39121, Vernon18 Civil Statutes,  provides for
        the compensation to be received by Juet%cee of the Peace and
        Constables.     This statutory provision  establishes population
        brackets together with maximumsalary limits in each said bracket.
                    Section   9 of Article   39121,   eupra,   reads in part:         .
                     'Sec. 9.    The Commleelonere Court shall not
             be required to fix the, salaries         In all precincts
             at equal amounts, but shall have discretion             to
             determine the amount of salaries          to be paid each
             Justice of the Peace and each Constable in the
             several precincts      on an lnd~lvldual basis without
             regard to the ealatiles paid 'In other precincts
             or to other officials.         In arriving at the com-
             pensation to be paid the officials          goyerned by
             the provisions      of this Act the Commieeloners
             Court shall consider the financial          condition    of
             their respective      counties and the duties and
             needs of their officials,         but in no event shall
             any Commissioners Court set the salary of any
             official     at a figure In excess of the maxlmuni
             compensation prescribed        for the offlclals     of
             that county by this Act, save and except as
             hereinafter     provided,   to-wit:     . , ,"
                     From a'gerusal     of the foregoing    quoted Section,  we
        can say (1) that &Uaries need not be fixed in equal amounts
        In all precincts      (2) that the Commissioners Court has wide
        discretion    In fixin     said salaries     (3) that no minimum salary
        Is prescribed     and ( &) that In no event shall the Commissioners
        Court eet'the     salary-in    excess of the maximumcompensation pro-
        vided by the aforementioned         population brackets,   except as specl-
        flcally    set forth in Section 9, sub-sections        1 and 2 of Article
        39121, eupra.
                                                                       -     .




    Hon. Carleton       P. Webb, page 4 [WW-I&99)


               The Legislature     in Its wisdom, has given the Commis-
    sioners Court wide latitude      and discretion In setting salaries
    for Justices  of the:Peace and Constables.      They have prescribed
    a maximum as to cotipensation,     but have seen fit  not to~prescrlbe
    a minimum.

                  However, the Legislature     has set up certain guides     In
    fixing     the amount of salaries    when they state In Section    9,
    Article     39121, supra.
                  11 e .In arriving    at the compensation to be
            paid the officials    governed by the provisions    of
            this Act the~Commleeionere     Courts shall consider
            the financial   condition   of their respective   counties
            and the duties and needs of their offlclale.       . .’
                 We are of the oplnlon that the Commissioners Court of
    Garza     County,Texas, may set the salaries      of the Justices of the
      Peace and Constables,    taking into consideration    the financial
    ‘condition   of Garza County and the duties and needs of said of-
      ficials,  at any ‘figure not In excess of the maximum contained In
      the applicable  population bracket.

                               SUMMARY
                   The Office of Constable in Precincts     Two and Four
            of Garza County, was vacant at the general~electlon         held
            on November 6, 1962, and could ~properly be filled       by the
            election   of a qualified  Individual  thereto,   regardless    of
            whether an appointment had or had not been made to fill
            such vacancy,    with said Individual  being elected to fill
            the unexpired term terminating     December 31, 1964.
                  Salaries  to be paid Justices of the Peace and Cons-
            tables  are within the discretion   of the Commleeioners
            Court limited   to the’maxlmums set forth in Article     39121,
i           Vernon’s Civil Statutes,    and no minimum has been pree-
            crlbed by the Legislature.
                                         Sincerely,

                                         WILL WILSON




    ~OLH:mkh



                          ;’
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            Hon. Carleton   P;,.Wkbb, page 5 (W-1499)


            APPROVED:
            OPINION COMMITTEE
            W. V. Gepperti'Chairman
            John Reeves
            Albert Pruitt
            Sam Stone
            REVIEWEDFOR THE ATTORNEY
                                   GENERAL              '
            BY: Leonard Pasemore
