      OFFICE   OF THE ATTORNEY     GENERAL   OF TEXAS
                          AUSTIN




Honorable C. E. Weaver
County Auditor
Nacogdoches County
Nacogdoches, Texas

Dear Sir:



                                             ty clerk of back



ment on the above
                                    r as follows:



                                 ssioners' court be




     taxpayer citizen and payment ordered withheld?
         "The Officers Salary Law stipulates that sal-
    aries of county officers are based on the amount
    earned by their offices during the fiscal year of
    ~1935. In t,hecase referred to in the question
    submitted, the earnings of the County Clerk of
.-   Honorable C. E. Weaver, page 2


         Nacogdoches County, proven to the satisfaction
         of the trd.alcourt and upheld by the court of
         civil appeals, Beaumont, was set .at $3,286.16.
         The law suit of F. C. Winder, above referred
         to, was occasioned by the Commissioners Court
         setting the salary of F. C. Winder, duly elect-
         ed county clerk, at a lower sum, namely, $3;000
         perannum.   Judgment was given for $572.32, rep-
         resenting unpaid back salary for two years,
         namely, 1937 and 1938. This case ended in a
         compromise with ex-county clerk Winder accept-
         ing a settlement of $400 dollars.
              *With the precedent established with the
         Winder case; claims will be presented in which
         the Members of the Commissioners Court, even
         though having set the,salary of the county clerk
         at the lower salary (of $3,000) than that pre-
         scribed by the officers salary law and the figure
         established in the trial court by means of the
         Winder Case, will reverse themselves by approv-
         ing with their signatures in their official capacities
         the payment of the difference between the set
         salary and the salary allowed by the law and the
         figure set by the trial court, as above indioated.
         With this in mind, with,a.,majority.,of~
                                               the oommis-
         sioners court signing the claim for the back salary
         herein described, what is the liability of each mem-
         ber of the court so signing to either himself or his
         bondsmen, if such payment is questioned through
         legal process by a taxpaying citizen and the pay-
         ment ordered withheld?
               "The situation is exactly this: Three mem-
          bers of the commissioners court, who participated
          in setting the salary of the county clerk at
          $3,000 now wish to pay him (thenpresent county
          clerk) on the basis of $3,286.16 per annum, as per
          judgement of the courts, herein before mentioned,
          but in doing so do not want either their bondsmen
          or themselves to be liable for any sums of money
          caused by the payment of this back salary."
         Honorable C. X. Weaver, Page 3


                    As we understand the facts presented in your in-
          quiry, the county clerk of Nacogdoches County earned the
          sum of $3,286.16 in the year 1935. Also, that the officers
          salary law is applicable to Nacogdoches County, and that
          in 1937 and 1938, the Commissioners* Court fixed the salary
          of the county clerk at the sum of $3,000.00 per annum.
          Article 3912e, Section 13, Vernon's Annotated Civil Stat-
     * '\ utes, fixes the salary of county clerks in the class of
          counties in which Nacogdoches County fell, "at not less
          than the total sum earned by him 'In his official capacity
          for the fiscal year 1935, and not more than the maximum
          amount allowed such officer under laws existing on August
          24, 1935." The ex-county   clerk sued Naoogdoches County
          to recover a balance of salary claimed to be due him as
          county clerk of said county for theyears, 1937 and 1938,
          and judgment was rendered for the ex-county clerk in the
          sum of $572.32, and the county appealed from this judgment,
          and said judgment as rendered by the trial court was af-
          firmed by the Beaumont Court of Civil Appeals, 140 S. W.
          (2d) 972.

:-                 It further appears from the facts stated in your
         inquiry that the Commissioners' Court has not fixed the
         salary of the county clerk in complaince with Section 13,
         Article 3912e, Vernon's Annotate~dCivil Statutes, butsaid
         salary is still qb3,000.00per'year, a'sfixed by the Commis-
         sioners* Court, and as the amount of salary for the county
         clerk for the years 1937 and 1938 has been adjudicated by
         the courts, it is apparent that your question has reference
         to the salary of the present county clerk for the year 1939
         and the year 1940,
                   We quote from the case of Nacogdoches   county   v.
         Winder, 140 S. W. (2d) 972, as follows:
                   "ihie
                       think the order fixing appellee's
              salary made at the regular term on January
              13, 1936, was in accordance with the law,
              and that the amount then fixed as the annual
              salary of appellee, $3,286.16, under the facts
              and the law was proper, and is controlling
              here. Article 3912e, section 13, Vernon's
              AM. Civ. St., fixes the salary of County
              Clerks in the class of counties in which NaCOg-
              doches fell, at not less than the total sum
        Honorable C. E. weaver, Page 4


            earned by him in his official  capacity for
            the fiscal year 1935 and not more than the
            maximum amount allowed such officer under
            laws existing on August 24, 1935.   The legis-
            lature having prescribed the minimum amount
            of salary (the official earnings in 1935)
            and that being shown to have been $3,286.16,
            the commissioners' court did not have the
            authority to ignore this statutory provision
            of the minimum salary and fix the salary at
            $3,000. The provisions of the statute au-
            thorizing the commissioners' court to fix
            the salary at any sum not less than a certain
            minimum, and not more that a certain maximum,
            are mandatory, and could not be ignored by
            the members of the court at their discsetion.
            The order fixing appellee's salary at .$S,OOO
            was without authority, and so void.
                  ". . .
                 We overrule appellant's assignment that
            the court erred in not sustaining its plea in
            abatement.~ The insistence is that the oommis-
            sioners' Court in January, 1937, and in January,
            1938, entered upon~its'minutes'an'order fixing
            appellee's salary for said years at #.3,000.per
            year, from which orders appellee did not appeal,
            but accepted the monthly warrants issued to him
            for each month of said years same being for one-
            twelfth of $3,000; that said orders became final
            judgments of the court, and so was conclusive of
            appellee's right to maintain this suit. This
            dontention is not sound. The order fixing ap-
            pellee's salary at $3,000.00, being a sum less
            than the minimum fixed by law, Article 3912e,
            Section 13, Vernon's Ann. Civ. St., the order
            was void, and being so could be attacked in any
            court having jurisdiction of-the matter involved.
                  " . . ."

                  In the case of Commissioners~ Court of Nacogdoches
        County v. Winder, et al, 113 S. W. (2d) 277, the court holds
        in effect that a judgment directing the Co&nissioners~ Court
r*<'\
     ‘




-

         Honorable C. E. Weaver, Page 5


         to fix salaries of county officers for 1937 at specified sums
         became mOOt when a prior Order Of the COID.Ii.SSiOn8rS'
                                                              Court
         fixing the salaries at lower amounts expire at th8 end of
         1937, snd the Commissioners' Court could not enter an order
         fixing the salaries for the year 1937 in the year 1938. Also,
         where the Commissioners' Court entered an order in 1937 fix-
         ing the salaries for county officers for the year 1937,.to be
         paid in equal monthly installments! the court could not enter
         an order in 1938, fixing the salaries for 1937;payable in
         monthly installments.
                   Article 2340, Vernon's Annotated Civil   Statutes,
         reads as follows:
                    "BefOr8 entering upon the duties of their
              office, the county judge and each commissioner
              shall take the official oath, and shall also
              take a written oath that he will not be direct-
              ly or indirectly interested in any contract
              with, or claim against, the county in which he
              resides, except such.warrsnts as may issue to
P.            him as f88S Of Office. Each commissioner shall
              execute  a bond to be approved by the county
              judge in the sum of three thousand dollars, pay-
              able to the county treasurer, conditioned for,the
              faithful ,performanceof'the dut&es~'~'of
                                                     h~isoffice,
              that he will pay over to his county all moneys
              illegally paid to him out of county funds, as
              voluntary payments or otherwise, and that he
              will not vote or give his consent to pay out
              county funds except for lawful purposes."
                   Generally, there can be no liability on the part
         of the sureties on an officer's bond without default on
         the part of the principal in regard to the duties which
         they have contracted that he &all discharge. To render
         them liable, the act complained of must be a violation of
         the conditions of the bona. Their liability is striotissiai
         juris; it cannot be extended by implication or construc-
         tion beyond the terms of their contract; and they must be
         given the benefit of any doubt as to the meaning of the
         terms of the bond. Texas Jurisprudence, Vol. 34, p. 570;
,P,     _
            Honorable C. E. Weaver, Page 6
             .


            Affierican
                     Surety Company v. Hidalgo County, 283 S. W. 267;
            Brown v. Sneed, 14 S. W. 248.
                      In view of the foregoing authorities and the facts
            stated in your inquiry, it is the opinion of this depart-
            ment that $3,226.16 is the rainimumsalary of the county
            clerk of Nacogdoches County, and that the Commissioners~
            court has no authority to fix the salary of said clerk at
            any sum below that amount. It is our further opinion that
            it is the duty of the Commissioners' Court to pay the
            county clerk the difference between the salary received
            and the minimunito which he is legally entitled, and that
            the members of the Commissioners' Court or their bondsmen
            would not be liable for such payment if questioned through
            legal proceedings.
                      Trusting that the foregoing fully answers    your
            inquiry, we are

                                                      Yours very truly
                                                  ATTORNEY GENERAL OF TEXAS

                                                  'By"($)Ardell Wiiiiams
                                                            Ardell Williams
                                                                  Assistant

      ‘i,                 APPROVED SEP 10, 1940
                          (3) Gerald C. Mann
                          ATTORNEY GENERAL OF TEXAS


                                                   APPROVED
                                               Opinion Committee
                                               By BWB, Chairman
