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                  OFFICE   OF THE Al-kORNtiYGENERAL    OF TEXAS
                                        AUSTIN

    Q-C.-                                                         _’
    A--




            nonorsble Keeldon3, Davis
            county Attorliey
            Aust.inCounty
            IjelLville,Texas
            zqar sir:

,




                                             correctly advise




                orders auly mite soa entered of recwa at
                its first reg.&r ne9tinc in Janunry or
                each cult-ndaryem since the effective data
                Gi:.4xtic1o391% or the i;cvisQdcivil stat-
                utes of Tom:;18
                              deierninsd that thu cwnty of-
                fioors of ;,ustinCounty shsll be 003;.enmtea
                on the b"sIs of fees enrnd by thornin the
                  ..
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                                                          ,    328




    Szlorable\FolaonB. Davis, Page 2


        perfomance of their official duties. On
        April 22, 1939, e vacancy occurred in the
        ofrice of County Attorney of Austin County.
        On said date, April 22, 1939, an8 during
        tho time the vacancy existed end before the
        appointmentto fill the vacancy wes made,
        the Commissioners'Court by en order duly
        made and entered of record reduced the ex-
        officio compensationto bo paid the County
        Attorney of Austin County from and after
        said date from $1800.00 per year, or $150.00
        I@; ;;;t";,to 31200.00 per year, or $100.00
                    Ths ex-offioio compensation of   .
,       BlOOO.OO'~r
             *       year had been fixed et the
        first regular msetin~ of the Comisaioners’
        court in *IDmary, 1939. On April 25, 1939,
        three days after such order reducing the ex-
       ,officiooompensationwas amae end entered of
       record, the Commissioners*Court made the
       appointmentof a-County Attorney to fill'the
        vacancy,and the person’ 80 appointed accepted
        ouch eppointmcntand qualified es suoh officer
       with full knowledge of the action of the Com-
       mlosioners'Court in reducing the ex-officio
       compensationto be paid such offioer, and in
       fact suoh appointee before accepting such
       appointmentand before qualifying for such
       office oxpressea to the Commissioners*Gcurt
       his satisfacticnand his willingness to
        serveas County Attorney at such reduced ex-
       officio coaponsation. He hcs now, howevsr,
       presentedto the Commissioners*C0urt his
       claimfor additional ex-officio comyensation
       for the period from tho date of his quualifi-
       Cetion to the end of the year 1939 at the
       rate of $50.00 per month, that being the
       amount the ox-officio oomgensaticnwos re-
       duced by the order of the Court made and
       ontorod on April 22, 1939. The exact ques-
       tion thus presented is whether the Corzi~fts-
       slonsrsrCourt cl"Austin County unacr the
       faots related ooul,fiat a m::otingother than
       the first regular mseting in January of each
       Year enter ,anorder reducing or deorsaslng the
       ex-officiocompensationto be paid the County
       Attorney for future sorvicos.
BonorableiY&lon   1).Eavi~,   Rage 3


          "In briefing the question 1 have come
     to the oonclusion that the provisions of
     Article 3912e of the Revised Civil Statutes
     relating to the tines and the amounts and
     the manner of fixing the salaries of county
     officers, and the recent cases together vtith
     the opinions handed down by your offike con-
     struing the provisions of this article, have
     no application to the question presented for
     the reason that Austin County is coszpensating
    its officers on a fee basis and not on a
    'salarybasis, Any authority the Corn&saioners*
    Court has to allow, ohange or modify conpensa-
    tion for ex-officio services must be derived
    from kticle 3895 of the i?evlsed Civil Ctotutoa
    of Texas and the constructiongiven said ar-
    tiole by the oourts of our State. In my opinion
    the case of ColllngaworthCounty vs. Xyers, 35
    s. W. 414, definitely settles the issue and cor-
    rectly answers the question in the affirmative.
    Ry conolusion that the CGurt could on April 22,
    1939, end as for that netter at any time, lava-
    fully enter the order ohanging or reducing the
    ex-ofSici0 congensationof the County Attorney,
    for future services is Purthor fortified  by the
    statementsfound under the title 'Fublic Of-
    Hoers* in 3-i Taxes  Jurisprudence,tee. 107, on
    page 511, and in the saiaevoluroeand under the
    same title on pages 526-329, Sec..llS, end the
    authorities there 0itea.n
          We have oarefully considered your letter, together
*lth the statutes and authorities mentioned therein, and agree
Eith the cmcluelon reaohod bjryou,
         Article 3693, VernGn'a .AnnotatedCivil Statutes,
rd.5 as f0110~s:
         *The Co!r&saiunerslCourt is hereby
   .debarredIrGm nllouing compensationfor ex-
    off1010 services to county officials when the
    ccnpensationma excess   fee3 vM.ch Lhey are
    allowed to rctsin shall reach the marimur~
    provided for.in this chapter. In cases -Jihsre
    the oonpcnsationand exce:~sfoes which the
    officers are allozed to retain shall not
    reach the nsximm provided for in this chapter,
                       Court shzll allovrcGm:ensa-~
    the ~bsxa3.ssioner.s~
    tion for ox officio sGrvicezBwhen, in their
    gonorab16
            -WeldonB. aavis, FaCe 4


        Judgment,,such cocpensation is ns&,+sary,
        prodded, such compensationfor ex officio
        services allo;iedshall not increase the
        compensationof the offioial beyond the
        maxlnum of compen6ation and excess fees
        alloviodto be retained,by bin under this
        chapter. Provided, however, the ex of-
        fioio herein authorized shall be alloned
        only after an opportunity for a publid
        hearing and only upon the affirmative
        vote of at least three megbars of the
        ~ommissioners~Court."
             We quote from Texas Turisprudence,Vol. S?, P. 527,
,   88 fol.loss:
             ** * * the coCnissioners*oourt has
        powor to fix the co3lpensationof an officer,
        it nay change the amount at any time, oven
        during his term of office. Thus its orders
        fixing the compensation of officers for ex-
        officio services are not contracts or juag-
        manta against the ccunty, and may be ohangcd,
        modified, repealed or revoked at any tine
        before the nonoy $5~ tczually been paid Out
        to the officer.       .
             we quote from the ca6e of CollinysworthCounty v.
    Lydrs,35 s. iv.414, as follows:
             r* + *   t:eare of opinion that, in
        auditing ani fixing the onounto to be paid
        6uch officers for ex offioio scrvicas, the
        00~ii3sionersfcourt acts in a legislative
        capccity Roro than in a judicial, and that
        such orders are not judE)I;lents
                                      against the
        Ccunty, and that, whenever the cozzissionera
        Oonclude, for any reason, that such allowances
        are too great or too ~~11, they have the
        Sight and power, at any time before the
        xeoneyis actwlly paid out to the officer,
        to change, modify, or even sntiroly repeal
        or revokes the order. * r,*.n
             In view of tho for'ei;OIng
                                      authorities, the above stated
    W6tion   is answsred in the affirmatlvo.


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                                                                    33-J
               I




    gonorableC6ldon B, Dovia,.Fage 5


            Trusting that the foregoing fully answsrs your
    lncplry,rreare




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                                         rrdell ‘XilllnmS
                                               Assi6tant




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