                                     April   2.7, 1973


The Honorable   Lynn Cooksey                     Opinion   No.   H-   35
Criminal District Attorney   “’
Bowie County                                     Re:     Questions  concerning
412 Texas Boulevard                                      salaries,  expenses and
Texarkana,  Texas 75501       _                          removal of justices of
                                                         the peace.
Dear    Mr.    Cooksey:

   .Your      request   for our opinion poses   the following    questions:

               1. Is the dommissioners     Court of Bowie County
          limited by Article   3912i, Vernon’s   Annotated Civil
          Statutes,  in setting justices’ oi the peace salarks
          beginning January 1, 1973, or does Article      3912k,
          Vernon’s   Annotated Civil Statuter,   apply?

               2.  Does Article    3936f-1, Vernon’s  Annotated
          Civil Statutes,   limit the amount of fees that a
   ..     justice of the peace in Bowie County, paid on a .:+r
          fee basis,    can retain as his compensation   for the
          year of 1972, or does Article 3912k. Vernon’s Anno-
          tated Civil Statutes,    apply?

               3. scan the Commissioners      Court of Bowie County
          provide a secretary    for a justice of the peace.under
          the provisions  of Article   3912k, Vernon’s  Annotated
          Civil Statutes?

               4.  Can the Commissioners      Court take any affirm-
          ative action to remove a justice of the peace who has
          not satisfied the requirements    of Article 5972(b),
          Vernon’s    Annotated Civil Statutes,  or withhold pay-
          ment of his compensation    absent an adjudication    of
          incompetency    and removal by a district court   judge?




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                 The Honorable       Lynn Cooksey,     page 2     (H-351




                       The scope of Article    3912k, V. T. C. S. (Acts    1971,   62nd Leg. , Ch. 622,
                 p.   2019) is set forth in § 1 which provides:

                                “Except as otherkise     provided by th~is Act and
                           subject to the limitations    of this Act, the
                           commissioners      court,,of each county shall fix the
                           amount of compensation,       office expense,  travel
                           expense,   am all other allowances      for county and
                           precinct officials   and employees    who are paid
                           wholly from county funds, but in no event shall
                           s~uch salaries  be set lower than they exist at the
                           effective dates of this Act. ”

                      The office of justice of the peace is a precinct office (Article 5,
                 § 18, Texas Constitution),   and is therefore   covered by Article 3912k
                 unless otherwise    excepted by g 7, subsection   4 which excepts:,

                           ‘I. . . judges of all courts of record and all justices
                           of the peace, and presiding judges of commissioners
                           courts in counties having a population of 1, 700,000
                           or more,   according  to the last preceding Federal
                           census. ”

                                                                                     .p
                       Section   8 of Article   3912k provides:

                                “To the extent that any local,  special or, general
                                                                                                                    .
                           law, including Acts of the 62nd Legislature,     Regular
                                                                                                       .
                           Session,   1971, prescribes   the compensation,.  office
                           expense,    travel expense,  or any other allowance for
                           any official or employee    covered by this Act, that
                           law is repealed. ”

                     It is our opinion that the Commissioners      Court of Bowie County,
                 in setting justices’ of the peace salaries   beginning January 1, 1973, is
/                governed by the provisions    of Article  3912k, and not Article 3912i.

                      As to your second question,   $9 of Article  3912k, Vernon’s  Annotated
                  Civil Statutes, provides that the Act was effective January 1, 1972.    In
                  conjunction with the discussion  above, it is therefore  our conclusion  that


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                                                           p. 143
The Honorable      Lynn Cooksey.   page 3     (H-351




Article   3912k. and not Article 3936f-1. determines the compensation
of a justice of the peace in Bowie County during 1972 and thereafter.

     With reference     to your third question,  Article   3912k provides
for the Commissioners        Court to establish the amount of office expense
for justices    of the peace and qthersbut a secretary      is not an office
expense.      Casey v. State, 289 S. W. 428 (Tex. Civ. App.,       Texarkana,
1926, err. ref. ). It provides for compensation,         but does not in itself
authorize    the establishment    of any office or position.    However,
Article    3902 does allow the Commissioners        Court to authorize an
assistant.     Once such an assistant    has been authorized,     hia compen-
sation should be, set in accordance      with Article 3912k. which covers
“county and precinct officials and employees.        ‘I (Section 1, supra).

    With reference    to removal of a justice of the peace,  Article 5,
$ 24 of the Constitution   of the State of Texas provides as follows:

             “County judges,    county attorneys,    clerks of the
        District and County Courts, justices       of the pcet
        constables,   and other county officers,     may be rei
        moved by the Judges of the District Courts fo r
        incompetency,    official misconduct,     habitual drunk-
        enness,   or other causes defined by law, upon the
        cause therefor being set forth in writing and the :”
        finding of its truth by a jury. ”

    In Childress    County v. Sachse,     310 S. W. 2d 414 (Tex. Civ. App. , Amarillo,
1958) writ ref.,    n. r. e., 312 S. W. 2d 380 (,Tex. 1958), the court held:

            “Where the State Constitution       prescribes   the
        manner of removing a public official,        neither, the
        Legislature,    Executive. officers   nor the Judiciary
        can act beyond the limitations      of the Constitution.
        Travelers’    Ins. Co. v. Marshall,      124 Tex. 45, 76
        S.W.2d    1007, 96 A.L.R.     802.

            “In compliance  with the provisions  of the State
        Constitution,  however, the Texas Legislature   has
        passed laws’ for the removal of county officers   from




                                       p.   144
The Honorable     Lynn Cooksey,     page 4   (H-35)




          office and has prescribed    the methods for removing
          them if and when desired.      Arts. 5970 - 5997, both
          inclusive.   Such a procedure    must be sworn to and
          conducted in the name of the State of Texas,     heard
          in the proper district court with the charges set
          forth in writing and thq, truth of such found by a
          jury. . . . It (310 S. W. 2d at 419)

      It is therefore  our opinion that a justice of the peace who has not .
 satisfied the requirements      of Article  5972(b),  Vernon’s  Annotated
Civil Statutes,     may be removed only in accordance       with the applicable
constitutional     and statutory provisions,    and that the Commissioners
Court is without authority to take any affirmative        action to remove a
justice of the peace or to withhold payment of his compensation,              .
absent an adjudication      of incompetency    and removal by a distrSct        ’
court judge.

                            SUMMARY

              Article   3912k, V. T. C. S., effective as of January 1,
          1972, is the statute by which the compensation      and expenses
          of a justice of the peace of Bowie County and his clerks
          and assistants,    are to be determined    by the Commissioners
          Court,,which    has no authority to remove a justice 61 the
          peace from office.

                                      Very   truly yours,




                                u     Attorney   General    of Texas




Opinion   Committee

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