Hon. John Dowdy            Opinion No. V-l.314
District Attorney
Athens, Texas              Re: Compensation of steno-
                               grapher or clerk to the
                               District Attorney of
                               the 3rd Judicial Dis-
                               trict under the provi-
                               sions of Senate Bill
                               212, Acts 52na Leg.,
                               2;;.   1951, ch. 365, P*
Dear Sir:                           .
          You request an opinion as to whether the
provisions of Senate Bill 212, Acts 52nd Deg., R.S.
1951, ch. 355, p. 517 (codified as Article 326k-19,
V.C.S.), rel.ative,tothe approval ana payment of a
salary for a stenograper or clerk appointed under
this statute are mandatory. You also ask what sal-
ary this employee may receive under the stated facts,
if these provisions are mandatory.
            Section 1 of Senate Bill 212 provides:
         "Any District Attorney in the State
    of Texas in a judicial district contain-
    ing two (2) or more counties is author-
    ized to employ a stenographer or clerk
    who shall receive a salary not to exceed
    Twenty-four Hundred ($2400.00) Dollars
    per annum, to be fixed by the District
    Attorney and approved by the combined
    majority of the Commissioners Courts of
    the counties composing his judicial dis-
    trict. The salary  of such stenographer
    or clerk provided for in this Act shall
    be paid monthly by the Commissioners
    Court of each county composing the judi-
    cial district, pro-rated app0rti;natel.y
    to the population of the county.
          You state in your I.etterthat the commis-
sioners' court of one of the counties comprising the
Third Judicial District has declined to approve a
salary for this employee.
Hon. John Dowdy, Page 2 (V-1314)
          In Att'y Gen. Op. V-1201 (1951) this office
construed the provisions of Senate Bill 444, Acts 52nd
L-w., R.S. 1951, ch. 374, p. 640, to be mandatory.
Sectionlofthat bill provides in part:
          "The District Attorney of the 100th
    Judicial District of Texas is hereby au-
    thorized to appoint a stenographer who
    shall receive a salary not to exceed
    Twenty-four Hundred ($2400.00) Dollars
    per annum. Said salary shall be fixed
    ancl determined by the District Attorney
    of said Judicial District, and the Dis-
    trict Attorney shall file with the Com-
    missioners Court of each county in said
    District a statement specifying the
    amount of salary to paid said steno-
    grapher. Said salary shall be paid
    monthly by the Commissioners Court of
    each county comprising said District in
    the manner and on the same pro-ratio
    basis as that contained in the order
    of the District Juage of such Districts
    for the payment of the salarK of the
    official shorthand reporter.
           It is stated in this opinion:
          "In 2 Sutherland, Statutory Con-
     struction (3rd Ed. 1943) 216, it is
     stated:
         "'Although in every case the leg-
    islative intent should control in deter-
    mining whether a statute or some of its
    provisions are mand~atorythere are,
    nevertheless, certain forms and certain
    types of statutes which generally are
    considered mandatory. Unless the con-
    text otherwise indicates the use of the
    word "shall" (except in its future tense)
    indicates a mandatory intent.'
          "In Elms v. Giles, 173 S.W.2d 264,
     268 (Tex. Civ. App. 1943, error ref.
     141 Tex. 446, 174 S.W.2a 588), the court,
     in construing an act to determine whether
     it was mandatory or permissive, stated:
     Hon. John Dowdy, Page 3 (V-1314)
,-

               ml .. . By the use of the word
          "shall" in each of the provisions
          above quoted, the Act makes it manda-
          tory that such notices be given. . .
          .t
                "The word 'shall' is used'in Sen-
          ate Bill 444 in each instance wherein
          the duties of the commissioners' courts
          are prescribed. In view of the fore-
          going   it is our opinion that Senate
          Bill 444, Acts 52nd Deg., 1951, is man-
          datory in regard to the provisions re-
          lating to the duties of the commis-
          sioners ' courts involved."
               In Att'g Gen. Op. V-749 (1948) it was
     held that it was mandatory under Article XVI,
     Section 61 of the Constitution of Texas that all
     of the constables of this State be paid a reason-
     able salary.
               Although there were involved in Att'y
     Gen. Ops. V-749 and V-1201 different constitutional
     and statutory provisions than are involved in your
     request, it is our opinion that the principles of
     law announced in these opinions are applicable to
     Senate Bill 212. You are advised, therefore, that
     it is mandatory that the stenographer or clerk of
     the District Attorney of the Third Judicial Dis-
     trict, composed of Anderson, Henderson, and Houston
     Counties, be paid a reasonable salary. What con-
     stitutes a reasonable salary, however, %   left to
     the sound discretion of the Commissioners' Courts."
     Att'y Gen. Op. V-749 (1948).
                           SUMMARY
                Under the provisions of S.B. 212,
          Acts 52nd Deg., R.S. 1951, ch. 365, p.
          617, it is mandatory that the steno-
          grapher or clerk of the District At-
          torney in a judicial district contain-
          ing two or more counties be paid a
          reasonable  salary not to exceed $2400.00
Hon. John Dowdy, Page 4 (V-1314)
                                                  -_



    per annum. The question of what con-
    stitutes a reasonable salary is left
    to the sound discretion of,the Com-
    missioners'Court5. Att'y Gen. Ops.
    V-1201 (1951) and V-749 (1948).
APPROVED:                     Yours very truly,
J. C. Davis, Jr.                PRICE DAMIEL
County Affairs Division       Attorney General
Jesse P. Luton, Jr.
Reviewing Assistant
Everett Hutchinson                 John Reeves
Executive Assistant                  Assistant
JR:awo



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