                         c OPY




Zsnoreble L. D. Eatliff, yTr.
County Attorney
Dickens County
Spur, Texas
Dear Sir:'                Opinisn No. O-3138
                          i?e: Conpensat;ionof the county
                               judge for presiding over
                               the Commissioners' Court.
          Your recent request for an opinion of this depart-
ment on the above stated,subJect has been received.
         We quote from   your   letter   as   follows:

          "The Cowty Judge af Dickens County, Texas
     has requested me to secure from your Depertment
     an opinion concernifighis compensetion for pre-
     siding over the 'Comndssioner'sCourt, and he
     has prepared, and I hand you herewith, a brief
     on this question.
          "For your information I~have a copy of
     your opinion No. 0-lC17."
          Your brief reads as follows:
          Vlease give us an opinion of the~following
     statezent or^ acts:
          "Dic'kensCounty is s.county of
     (7,SG4--parenthesis ours) population ac-
     ccrdizg to the census of 1940, EM its officers
     ore psi;?on a fee basis. Is the county
     judge thereof, who receives a salary of
     $lEC.CC per month for the county, entitled
     tc additional compensation for &se_?(?iythat
:IcnorableL. D. Datliff, Jr., Page 2


     he actually serves as chairman of the
     Commissionersq Court thereof?
    Section 3 cf Article 3926, H. C. S. as hmended,
     resds'as follows:
          "*Tar presiaing over the Commissicners'
     Court, -
            ordering elections and making retilrns
     thereof,.hearing snd deterrinirg civil
     causes, If any, and transacting all ot,her
     official business not ctherwise provided
     for, the Cou.ntyJudge shail receive such
     salary frc:i:
                 the County Treasury as the
     Co:~%iseioners*Court may allow him by
     order, payable monthly from the general
     funds of the county, provided, that in
     counties~having ~$290,000,000.00'assessed
     valuation, or more, and which have estab-
     lished therein institutions for the care
     of both dependent and delinquent boys
     and girls, the County Judge shall receive
     as ex-officio salary, not to be accounted
     for as fees of office,~and,in addition
     to all amounts allowed under.the b5aximum
     Fee Bill, the further sum of #3,000.00
     per annum, payable monthly out of the
     general funds of the county.'
              ":leare well aware of your opinion No. O-1017
     which states that the County  .~- Judqe of Willacy
     CouIlty,    who was receiving $195.00 per month kx-
     officio, was not entitled to an additional fee
     for presiding over 'the Commissioners* Court.
          "It is to be observed however that in
     the case of Nillacy County the County Judge -ijould
     receive in ex-'officiothe sum oft$2380 per
     year which is only 320.00 less than'the total
     of ;;2400.00provided for in Article 3883,
     sec. 1, K. C. S. as amended. 'VEEFXASthe County
     Judge of Dickens County will receive in
     ex-officio only .$19X0for the year and his
     fees of officr;together with the ex-officio
                      '"140Q.00,
     ~511 no? net hi.12
                      .+        therefore the situation
 Bonorable L. D. Ratlifr',Jr., Page 3



      in Dickens county is different from that in
      'iiillacy
              County.
            "Article 3926, referred to above, read.s
      3na can be interpreted the same as Article
       2450, R. C. S., 1895, which statute was ccn-
       strued;~and t.hescr;eGuesticn raised in that
       case as is now under ccnsideration. In that
       case and construction, namely, Farmer,
       County Treasurer vs. Shaw! 93 Texas Reports
       43S-445, Chief Justice Gaines held that the
       County Judge is entitled to additional com-
       pnsaticn for presidi~ngover the Com!tAs-
       sioners* Court, etc. As far as we can tell
       t,hiscase has neverbeen overruled, and in
       spite~of the fact that the reading of the
       statute has been changea some, no material
      alteration has beer?mtideand the construc-
    .*..
       tion is similar d.s to the point under con-
,/'. sideration. It is our opinion therefore
       that the rule laid'dozn by Chief Justice
       Gaines in Farmer, County Treasurer vs.
       Shaw, should apply to Dickens County and
       that t.heopinion of your Department Rum-
       berea O-1017 is not in conflict because of
       the exorbitant ex-cfficio salary allowed
       in the case',ofViill~cyCounty."
           Article 3895, Vernon's Annotated Civil Statutes,
 reads as follows:
           "The Commissioners1 Court is hereby de-
                  allowing compensation for.ex-
      barred fror:.
      officio services to county o~fficielswhen the
      ccripensationan~dexcess fees which they are
      allowed to retain shall reach the maximum
      provided for in this chapter. In cases
      where the compensation and excess fees which
      the officers are ailolvedto retain shall.not
      reectithe maximum provided for insthis chap-
      ter, the Commissioners' Court shall allow
      cor;pens~ationfor ex officio services when,
      in their judgr;;ent,such compensation is
      necessary, provided, such compensation for
Honorable L. C. Ratliff, Jr., Page 4



    ex officio services allowed shall not ih-
    crease the conpensation of the cfficial
    beyond the r!a.xiakm
                       cotipensaticnand excess
    fees aliofiedto be retained ‘oybin under
    this chapter;. Provided, however, the ex-
    officio h;creir.
                   authorized shall be allmed
    only after an opportunity for a public
    hearing end only upon the affirmative
    vote of at least three ker;:bers
                                   of the COD
    L3issioners'Court."
           The only statute now in force referring directly
to compensation for a county judge presiding over the COD
missioners' Court is subdivisicn 3, Article 3926, supra.
          We have carefully,considered the case of FarEer
v. Shaw, 93 Tex. 43S, 54 S:W. 772, 55 S. W.~l115, but do
not think that this case governs or controls the questicn
here icvolved.
          In the above menticned case the court had under
consideration Articles 2450 and 2466, R. S. ,1895,Article
2450, which authorized the Ccmissioners* Court to allow
the county judge a salary for ex officio services, read
as follows:
           "For presiding over the comissioners
     court, ordering elections and making returns
     thereon, hearing and detemining civil causes,
     and transacting all other official busioess
     not otherwise provided for, the county judge
     shall receive such salary fron the county
     treasurer as ;;iay
                      be allov~ec?
                                 him by order of
     the cormiseioners court."
           firticle2466 read as follovm:
           "Zach county commissioner, and tee county
     judge .&en acting as such, shall receive from
     the county treasure:, to be paid on order of
     t.hecozziseicners court~,the sun:of three
     dcl.larsfor esch day he is engaged in holding
            of'the co:izissionerscourt, but SUC?_
     a teri;;
     comzissicners shall receive no pay for hold-
     ihg zore thaa one sy~ecinlterm of their court
     per niohth."
Honorable L. D.Ratliff, Jr., Rage 5


               In discussing the two above mentioned   stxtutes,
the   court   said:

               n
               . . .s
                    'Be do not think there is a conflict
       between i.hesetwo statutes,     and it is apparent
       to us that the purpose was to allow the county
       judge an extra cor;;,7ensaticn  as presiding offi-
       cer of the coiznissionerscsurt, and that by
       virtue of article 2466, he should receive
       cotipensstionas a ;neGberof the cozzissioners
       court. That article expressly includes the
       county judge as entitled to three dollars a
       day as compensation v&en he is engaged in
       holding a tez of court. By virtue.of the
       constitution and the statutes thereunder,
       he is made a member of the coszissioners
       court and the purpose of the law evidently
       was to entitle him to compensation for the
       see services .renderedby other coinmissioners,
       and additicnal compensation for presiding
       over that body. The.legislature evidently
       thought the county judge, as the presiding
       officer, was burdened with more duties when
       sitting  with the coaissioners court than
       the commissioners, and the purpose was evident-
       ly, by article   2450, to allow   him some com-
       pensation for these extra services. Viewing
       the two sections of law in this way, we think
       they can be reconciled. .~.."
             At the present, we have no statute such as Article
       2466, supra, specifically providing a certain coqpensation
       for the county judge when presiding over the Commissioners'
       Court. It is true that Article 3926, Vernon's Annotated
       Civil Statutes, contains, substantially, the same language
       as Article 2450, supra, but, as above stated, there is no
       statute such as Article 2466 now in force and effect. It
       is evident from Tour letter that the county officials of
       Dickens County are compensated on a fee basis, and in.
       addition to the fees of.office, the county judge receives an
       ex officio compensation of 3160.00 per month. We think
       that Article 3895 and Article 3926, supra, must be con-
       sidered tcgether, and it must be keRt in mind that it is
       the established law of this state that "an officer nay not
,




    Konorable L. D. Ratliff, Jr., Page 6


    claim or reach any money without a law authorizing him to
    do so, and clearly fixing the amount to which he is entitled."
    34
     _.Tex. Jur.
            _    _511. In other
                          . _ words, an officer may not
    claim a fee for a particular service rendered unless,the
    statute has prescribed a fixed fee for said service. This
    is the rule;even though the fee or compensation fixed is
    unreasonable~or inadequate. An officer may be required by
    law to perform specific services or discharge additional
    duties for which no compensation is provided. 34 Tex. Jur.
    pp. 530, 531.
                The $160.00 monthly ex officio conpensaticn al-
    lowe,dby the CorcJissioners'court compensates the county
    judge for presiding over the Commissioners' Court, order-
    ing elections and making returns thereof, and transacting
    all other official business not otherwise provided for.
    Therefore, you are respectfully advised that it is our
    opinion that the County Judge of Dickens County is not
    entitled to additionalcompensation for presiding over
    the Commissioners* Court.
                Trusting that the foregoing fully answers your
    inquiry, we are

                                      Yours   very truly
                                ATTORXZY GEBEML     OF TEXAS
                                By   S. Ardell Williams
                                        Assistant
    AW:GO
      APPROVED FEB. 15, 1941
      S. GERALD C. Iv&E
    ATTORNEY GERERAL OF TEXAS
                                     APPROVED OPINION COUWCTEE
                                     BY S.    EW'B,CHAIRMAN
