            OFFICE   OF THE ATTORNKY       OKNKRAL     OF TKXA8
                                  AUSTIN



                                                   May 27,     1939

Honorable Fred T. Porter
County Attornoy
Kautian County
Kaufman, Texas
Dear Sir:




            We are In recelp
bearing  date May 20, 1939,
ing questfone:




                                           the   regular     oounty




                            Itled   to reoelve the same per
                              r judge for every day that
                              in such probate matter?
                            he special   oounty judge reoelve
                            he regular   otiioer’a  salary  fund?*
             In answer    to your first    question,   it is the opinion
or this    department,    and you are 80 advlmd,       that the compeu-
satlon    ror a special     judge appointed   to try   oama in whlah
Honorablr       Fred T. Porter,   May 27,   1939, Pago 2


the regular    judge or the County Court          of Kaufman County is
disqualified,      la the annual salary oi        the judge of the
County Court or Kaufman County divided              by 365 and the quo-
tient multiplied      by the number of days         lotually served by
auoh apeolal     judgr,

            Our opinion is baaed upon Artiole     1933 Revised
Civil Statutes   or Tr~aa    1925 and Art1018 557, Eode of
Criminal  Prooedure,   Rsvlaed &atutea    or 1925.    Article 1933,
Revised Civil Statutes,     reads In part as follows:
              *- - - Any special judge agreed upon or ap-
       pointed to try oases shall receive    the same pay
       iOr.hia   eervioea as lm provided by law for county
       judges.”
                Artlole   567, Code of Criminal     Procedure,   reads   as
f 011OWSf

             “A apaclal   judge selected     or appointed  in
       acoordanoe with the preceding       artiola   shall ra-
       oeive the same oompenaatloa       as provided by law
       ror regular   judges in almllar     oaa68.*
           You state  In your latter         that in Keufman County,
whloh la a oounty of over 20,000 population,            the. county
judge in on a regular     salary    fixed by the CommissioneraT
court.   Although the statutes        quoted do not apeeirlaally
provide that the special       judge’s    salary  shall be determined
by the number of days the jud e servos), we believe            that this
la the ralreat   and moat praot fical ray of oaloulating          a apa-
oial judge’s   oompenaation.       Compara. the provision6      of Artlola
6821 wlth rersrenoa   to the oompenaatlon         of a apehI      diatriot
judge, which reads as tollowar

             “The aalariaa   of apwial    judges       - - - shall
       be determined    and paid as rollowa:
               “2. The amount of such. salary     shall be aa-
        certained  by dlylding the salary    allowed a district
        judge by 305, and then multiplying      the quotient
        by the number OC days actually    served by the ape-
        oial judge.”
                                                                                      543


Honorable     Fred T. Porter,     May 27, 1939,      Page 3


             In anawar to your aaoond question,          you are advised
that it is the opinion of this department            that in probate
oaaoa, whara tha regular      oounty judge la disqualified          end
a l pooial   judge la agreed upon by the parties           or appointed
by tha governor,      such apeolal    judge, so appointed,      In such
probate    oases, shall   be ontltled     to receive    the same oom-
ponaatioa    per diem as the regular judge, for every day that
such special     oounty judge serves In that capacity.
                 The salary ot the county judge, under tha provl-
  aiona of Article       3912s (3). Revlaad Civil Statutes,             la *In
  lieu or ‘all other rrea,          oommiaaiona or cbmpanaation*         and
  neoeaaarily      oovira oompaaaation        ior all ler vlo earendered
.;zr;he     county judga, Including          hla lervioe In probate mat-
            Wa believe     that It would be impossible         to separate
  the Galus or the aervloea or a apeoial               judge in probate
 matters      from the value of his aervloea           in other mattera,
  under the salary        system.     In other words, it is our oplaion
  that a apeaial       judge who serves in probate matters            la en-
  titled    to receive     the eame oompenaatlon         as if he had psr-
  rormed all or the duties           of the oouaty jgdge.        Ccaaparb Holland
  ‘1. Harris     Couatx    102 S. W, (2) 190, a deolaion          of the ‘corn-
 mission      of Appeais ore the State of Texas, adopted by tha
  Supreme Court wherein it was held that a special                  diatriot
  juggo wsa entitled         to receive     a proportion    of the regular
  salary    of a diatrlot       judge baaed on the number of days
  served,     evan though he did not p8rrOm some of the duties
  required      of the district      judge.
              In this connection  Artlolo        1932,   Revised     Civil
 Statutes    of Texan, 1925; provider:
               When a oounty judge is dlaqualirled          to
       aot la any probata matter         ha shall forthwith
       oertlfy   his dlaquallflcat~on      therein    to tha
       governor,    whereupon the governor shall appoint
       some person to sot as special         judge in said
       case, who shall act Iroai term to term until
       auoh dfaqualfflaatioa       ceases to, exist.”
           Artiole 1933, Revised Cltil  Statutes               ot   Texas),   1925,
 from whloh we have already quoted, provides:
Honorable   Fro& T. Porter,    Mny 27, 1939,        Page 4


             *Any apeolal  judge agreed  upon or appointed
      to try cases ahall rrcelve     the same pay ior hla
      aervicoa   as 10 provldad by law for oounty judges.”
             WI do not reel that the 1agIrlature          intended  that
a  apealal   oounty judge serving         ror one purpose should be plaoed
upon a dlrrerent        salary baa18 from a special      county judge for
another    or dirrerent       purpose and It la our .opinlon that a ape-
oial county judge In probate oases shall be compensated upon
the same basis as a special           county judge while sitting    for
other purposes.
            With referenoa to your last question,  we dlraot    your
attention   to Section 4 of Article  39120, which provides   as
follows :
            ‘In all counties   of this state    containing     a
      population   of lees than 190,000 lahabltanta        ao-
      cording .to the last preceding   Federal    Census
      wherein the oounty or precinot     officers    are com-
      penaatad   on a salary baa18 under ths provisions          .
      of this Act. there shall be oreated a fund to bo




      be-proteotod    to   the sake   extent   as   other    county
      run&s.”
            We are of the opinion   thatthe  salary or a oounty
judge should be oonaldered     athe aalariea  of offlcera~   and an
eauthorlzed   expense of oifioae,   and aooordlngly,    that a ape-
oial oounty judge should be oompenaated out of the ofticer~a
salary fund.
Honorable   Fred T. Porter,     May 27, 1939, Page 5


           Trusting   that    this   aatiafactorlly       answers       your quea-
Mona,   we remain
                                                      Yours very    truly
                                               ATTORNEYGENERALOF TFXAS
                      --
ATTORNEYGENERALOFTXXAS
EC:FL
APPROVEDOPINION CObfMITTEXBY RWF CHAIRMAN


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