                                                            247

            THEATTCDRNEYGENERAE
                     OPTEXM33
                         Ausm~.T-s


                   December 21, 1948

Hon. Dennis Zimmermann      Opinion No. v-749
County Attorney
Swisher County              Re: Authority of the Cods-
Tulia, Texas                     sioners' Court to fix
                                .the salary of the Con-
                                 stable at $1.00 per year
                                where other precinct of-
                                 ficers are on a *fee
                                 basis."
Dear Sir:
            Your,request for an opinion is as follows:
          "The County Judge and Commissioners of
     this county have requested me to get your
     opinion on the following question:
          "Chapter 381, H.B. No. 785, 50th Regu-
     lar Session, provides that-in fixing the
     salaries of county officials that 'no sal-
     ary shall be set at a figure lowerthan that
   _ paid for the Calendar Year 1946.'
          "Swisher County did not have any con-
     stable for 1946, 1947 or 1948. Hence no
     salary was paid in 1946for a constable.
     However, at the rece,ntelection one got his
     name on the ticket without the county desir-
     ing or needing one, as we got along without
     this extra expense the past three years.
         "Can the ~commissioners court fix the
    salary of this.new e~lectedconstable at
    $1.00 a year, in view of the fact that
    there was no salary paid in 1946 to limit
    them to not less then that amount?"
          H. B. 765, Acts of the .50thLegislature, is
not applicable to sa.lariesof precinct officers. See:
Attorney General's Opinion No. V-329, enclosed.
Hon. Dennis Ziamermsnn, page 2 (V-749)


          H. J. R. 36,of the 50th Legislature, recent-
ly adopted by the people, amended Article XVI, Section
61,of our State Constitution so aXi-tFppfsce---the~
                                                 con-
stable, among other officers, an a salary basis begin-
ning January 1, 1949.
          In answer to our recent request for additional
information you stated that the Commissioners' Court of
Swisher County plans to pay the constable a salary of
$1.00 per year beginning January 1, 1949, and compen-
sate all other precinct officers on a "fee basis.-
          The minimum salary of a constable where the
Commissioners' Court has placed all the precinct offi-
cers on a "salary basis" is not less than the total
sum earned.by such officer in.his official capacity for
the fiscal year 1935. Article 3912e, Sets. 15 and 17,
v. c. s.
          Article 3912e, Sec. 13, V. C. S. is only sp-
plicable to counties having a population of 20,000 in-
habitants           and less than 190 000 inhabitants.
Articles &$   %ej891,   V. C. S. are ipplicable only to
county or precinct officers who are compensated on a
"fee basis.*
          At the present time there is no statutory pro-
vision fixing the salary bf a constable in a county
where the Commissioners1 Cburt has placed the other pre-
cinct officers on a "fee basis." Therefore, until such
time as the Legislature enacts some provision 'applica-
ble to such officer,~we must look solely to the provi-
sions of Article XVI, Section 61, of our State Consti-
tution, as-amended, for the authority'~ofthe Commis-
sioners' Court of those~counties where the other pre-
cinct officers are compensated on a "fee basis" to
pay the constable a salary. Article XVI, Sec. 61, as
amended, provides, in part:
         "In all counties in this State, the Com-
    missioners Courts shall be authorized to de-
    termine whether precinct officers shall be
    compensstecl.ona fee basis or on a salary
    basis, with the exception that it shall be
    mandatory.upon the Commissioners Courts, to
    compensate all constables, deputy constables
    and precinct law enforcement,officers on a
    salary basis beginning January 1, 1949. . .n
Eon. Dennis Zimmermann, page 3 (V-749)


          The above quoted Constitutional provision
manifests a clear intentioh on the part of the framers
of this Amendment that the.Conmissioners’ Court oft
this State must pay allythe constables a reasonable
salary. Until such time as 3he Legislature fixes a’
minimum and a maximum to the salaries to bc :,-.idthose
constables inscounties where the other preciuct Dffi-
cers are compenmted on a “fee basis”, it is;our opin-
ion the amount of salary to be paid constables~in such
counties is left to the ‘sound discretion oftthe Coa-
missioners’ Courts. dhether the Comnissionerd’ Courts’
fixing the salary of a constable at $1.00 a year would-
constitute an abuse of discretion in view of the pro-
visions of Article V, Section 18, of ourStrte.Consti-
tution, requiring at least four constables iiieach
county, is a fact question depending upon the circum-
stances of each case.


         Beginning January 1, 1949, and until
    such time as the Legislature fixes a mini-
    mum and a maximum to the salaries to -be
    paid those constables’in counties where the
    precinct ~officers other.than the constable
    are compensated on a “fee,basis,” the amount
    of salaries to be paid the constables in
    such counties is left to the sound discre-
    tion of the Commissioners’ Courts.
                               Yours very truly,
                           ATTORNEY GENdRAL OF TEXAS




                                 Assistant
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