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                      October 15, 1951

     Rcn. R. C. Marshall   Opinion No. V-1317
     County Attorney
     Hutchinson County     Re:   Obligation of the Comis-
     Stinnett, Texas             sioners' Court to place
                                 justices of the peace on
     Dear Sir:                   a salary basis.
               You have requested an opinion on the fol-
     lowing question:

              "May the justices of the peace legally
         require the Commissioners' Court to place
         them upon a salary basis?"
               Section 61 c? Article XVI of the Consti-
     tution of Texas provides in part:
               "All district
                       _-      officers in the State of
         Texas and all county officers in counties
         having a population of twenty thousand
         (20,000) or more, according to the then
         last preceding Federal Census, shall be
         compensated on a salary    basis. In all coun-
         ties in this State, the Commissioners Courts
         shall be authorized to determine whether
         precinct officers shall be compensated on a
         f   basis   or on a salary  basis, with the
         ezzeption that it shall be mandatory upon
         the Commissioners Courts, to compensate all
         constables, deputy constables Andyprecinct
         l&w enforcement   ~officers hi a salary basis
         beginning January 1, 1949; and in counties
         having a population of less than twenty
         thousand (20,000), according to the then
         last preceding Federal Census, the Comis-
         sioners Courts shall also have the author-
         ity to determine whether county officers
         shall be compensated on a fee basis or on
         a salary basis, with the exception that it
         shall be mandatory upon the Commissioners
         Courts to compensate all sheriffs, deputy
         sheriffs, county law enforcement officers
         including sheriffs who also perform the
Hon. R. C. Marshall, page 2   (V-1317)


     duties of assessor and collector of taxes,
     and their deputies, on a salary basis be-
     ginning January 1, 1.949. . . .
          It was held in Attorney General's Opinion
V-748 (1948) that justices of the peace were not
"law enforcement officers" within the meaning of
Article XVI, Section 61 of the Constitution of Texas
requiring all precinct law enforcement officers to
be compensated on a salar basis. In Attorney
General's Opinion O-7535 7 1945) it was held that
all counties may determine whether precinct officers
shall be compensated on a fee or salary basis.,
           Since justices of the peace are precinct
officers (Reynolds v. Tarrant Count    78 Tex. 289,
14 S.W. 580 (l&@O), and Article 39&A,   Section 17,
V.C.S.) and are not law enforcement officers within
the meaning of Section 61 of Article XVI of the
Constitution of Texas, it is within the sole discre-
tion of the commissioners' court to determine whether
the justices of the peace shall be compensated on a
fee or salary  basis. You are therefore advised that
the justices of the peace cannot legally require
the commissioners' court to place them on a salary
basis.


          It is within the sole discretion of the
     cou,Gssionerst court to determine whether
     justices of the'peace shall be compensated
     on a fee basis cr on a salary basis. There-
     fore, the justices of the peace cannot re-
     quire the commissioners' court to place them
     on a salary basis. Section Gl, Article XVI,
     Constitution of Texas: Att'y Gen. Ops. O-7535
     (1946) and V-748 (1948).
APPROVED:                     Yours very truly,
J. C. Davis, Jr.                PRICE DANIEL
County Affairs Division       Attorney General
Jesse P. Luton, Jr.
Reviewing Assistant
Everett Hutchinson
Executive Assistant
                                   Assistant
JR:mh
