PRICE  DANIEL
ATTORNEYGENERAL
                            October 27, 1948

   Hon. Iv.E. drleh+l                 Opinion lo.   v-707
   CiuntJ Att*Pney
   Eastland, Texas                   Re: Construction of APtI-
                                         CM  2326, V.C.S., re-
                                         lative to salary of
                                         court reporter.


              You have requested an opinion from this office
    on the followi   questlen:
              ,11
               IS the District Judge of the gist
          Judicial District OS Rastland County, Texas,
          raises the salary of the oSSlcia1 shorthand
          reperter above S24Ot3.00per annum, ,Vst under
          $3750.00 per anuum, Is it mandatory upen the
          Co~isaione~s Court to pay said salary in
          compliance with said order, or is It d.iscre-
          tionaPy with the Commissioners Court?”
                  Article 2326, V. C. S., provides as Sollows:
                 “The oSSloia1 shorthand reporter OS
           each Judicial District Court, civil or crFm-
           inal,   and the official shorthand reporter of
           each Couut Court at Law, civil or criminal,
           shall race1 ve a salary OS not leas than Two
           Thousand, Four Hundred Dollars ($2,400) per
           annum and not more than Three Thousand, Seven
           Hundred and Fifty Dollars ($3,750) per annum.
           Said salary shall be fixed and determined by
           the District Judges of the Judicial Districts,
           civil or crlmlnall,and the Judges OS the Coun-
           ty Court at Law, civil or criminal, who shall
           enter an order   in the minutes OS the Oourt,
           in each,county of the district, which shall
           be a public Pecord.and open SOP pub110 in-
           spection, stating speclfically the amount of
           salary to be paid said reporter. The Dla-
           trict Judge shall file a copy of said order
           with each Commlssloners Court of the Dis-
           trict. The salary shall be In addition to
Hon. R. E. ~isham,   pago ‘2’ (V-707)


      the transcript Sees and traveling and hotel
      expenses OS oSSlc1al shorthand reporters,
      as is now previded by,law.
          The salary shall be paid memthlg by
      the Cemmfsriono~s Court OS the ccunty or
      counties in the Judicial Districts, civil
      or criminal, ahd the County Courts at Law,
      oivil or c~ia.iarl,out es any avaifable
      fund of the county or countier that the
      ConmIssioners Court may desire to pay the
      same, according to Articles 2326x and 2327A.
            The previsions lf this Act shall,not
      apply to counties having a pepulatien OS not
       08s than two hundred a14 twraty thaurand
      t220,000)   nor mere than three,hungPeg aC
      ninety thousand (390,000) inhabitants."
          Since the gist Judicial District 18 composrd
ef one county (Dastlaud County) only, Artlclo 2326 above
quoted, is applicable to ysur inquiry. The validity sf
raid Article was upheld in the cam OS Ten @roeCounty
v. ?roSitt, 193 s.U.(2d) 645.
          Article 2326, V. C. 2. plaimly giV.8   the powor
to set the srlaries lS the Di8trlct CeuPt bportor8    cover-
ed by the Act to the District Judges sf the va~1ous judi-
cial di8tPietS. The duty to pay the salaries hewover,
1s placed in the hands OS the COI8IUf8SiOnOP8
                                            ' bourt.
          The rule OS statutery oon8tructio~ gOV@Pning
this inquiry 18 stated ilr3) Tex. J~P. pp. 171 and 172
as follows:
           "Under the foregoing rulea, when the
     leglslativo intent is a8cert8lned, or i8
     plainly manifest, it is binding upon the
     courts and met bo given effect   if it 18
     legally po8slble to de so. To ignore the
     legislativr latent mnd give a statute a
     construotion obviously contrary theroto,
     or to reStme to enioroe a statute accerd-
     ing to the legislative intent, when a8OoP-’
     talned, is said by ths Supreme Court to bo
     'an inexcusable brearh OS judiolal duty!
     and (an unwrrrmted   intorferenar with the
     exerci8e OS lawful leg18lativs autherity.'"
Hon. BI.E. Orisham,   page 3   (V-707)


          Th8 Legislature in clear unambiguous language
expressed its intention to leave the amount of salary
the District Court Reporters were to receive to the
sound discretion of the District Judges. Any construc-
tion which would defeat such IntentLon must be avoided.
39 Tex. Jur. 171. IS the Commissioners’ Court could by
failing to appropriate sufficient money in the county
budget lower the salary of the court reporter  as set by
the District Judge, it could usurp the power given to
the Dietrict Jud eby the expressed language of Arti-
cle 2326, V. C. 8   and deS8a.tthe intention of the Leg-
islature. Therefore, It is our opinion that it is man-
datory upon the Commfssions~sI Court of Eastland County
to pay the salary of the court re orter set by the Dis-
trict Judge OS the gist Judicial % istrict if the salary
is set in accordance with the provisions of Article 2326,
v. c. s.
          We are supported in our conclusion by the case
of Weaver v. CommissionersI Court of Bacogdoches County
(Con. App. ) 146 S .W.(2d) 170. This was a suit by the
County Auditor to aompel the Commi8sioners1 Court to re-
cord in its minutes in accordance with the provisions of
Article 1647, V. C. S., a coptiRed 88pg of an order of
the District Judge providing for his appointment and set-
ting his salary. The court in granting the mandamus
held the Sollowing:
           UComplaint is made because the county
     is not a party to this suit. This action’
     is against the county judge and county com-
     missioners in their oSSicial capacities and
     as constituting the commissioners1 court.
     Article 1647 makes It the duty of the corn-
     missioners~ court to cause the certiSlcate
     of the distrlot judge to be reaorded in it8
     minutes, with an order direating the payment
     of the auditor Is salary. This action seeks
     to have them perform that duty. Besides, the
     county clerk was asked this question: ‘IS the
     co8n8issionePs’court was now to permit you
     to enter the last order of Judge Bra811 in
     1939, appointing C. E. Weaver as County Audi-
     tor, and directing his salary to be paid,
     would you issue the vouchers for that sal-
     ary? ’ To this he answered ‘Yes.’ It will
     thus be seen that the impedi8ent to the COl-
     lectlng of hia salary by plaintiff is the
     action of the oommissionePs~ Court ItSelf.’
Hon. 8. E. Orisham, page 4   (V-707)


                       SUMMARY
          If the District Judge of the gist
     Judicial District of Eastland County sets
     the salary of the district court reporter
     in accordance with the provisions of &ti-
     cle 2326, Vernon's Civil Statutes, at a
     sum of not less than $2400 per annum and
     not more than $3750 per annWs,the Conmis-
     sioners' Court of'Eastland County is re-
     quired by Article 2326 to pay the salary
     so set.
                             Yours very tray,
                        ATTORIVEYOERERAL OF TEXAS


JR:mw
                                Assistant


                         AWROVED:
