                  THEATTORNEY              GENERAL
                             OF   7rExAs

PRICE  DANIEL
ATTORNEYGENERAL




                                      March 13, 1948


              Hon. John Atchison           opinion no. v-519
              County Attorney
              Cooke County                 Re: Authority of the Com-
              Gainesville,Texas                missioners' Court of a
                                               county of more than
                                               20,000 populrtioIlto
                                               fix the salary of I
                                               constableat any time
                                               subsequentto its
                                               first regular meeting
                                               in January.
              Dear Sir:
                        Your request for an opinion from this offloe
              on the above subject matter is, Inpart, as follows:
                         "Your opinion is requested as to,vheth-
                    er the CommissionersCourt of a county of
                    more than 20,000 population has the authority
                    at any time subsequentto its first regular
                    meeting in January of any calendar year to
                    enter an order placing a certain precinct
                    constableDsoffioe on ftsalary for that year,
                    and fixing the salary.
                          We quote the following pertinent statutorypro-
              visions:
                          Art. 39120, v. c. S.:
                         %eotion 2. The CommissionersCourt
                    of each county in the State of Texas, 8t
                    its first regular meeting in January of
                    each calendar gear, shall, by.order made
                    and entered in the minutes of said court,




                                                       fO,Os
                    determinevhether precinct officers of.
                    such county (except public wei hers and
                    registrars of vital statistics7,shall be
                    compensatedon a salary basis as provided
                    forin thls Act, or whether they shaX1 re-
                    ceive as their compensation,such       Of
Hon. John Atchison, page 2   (V-519)


     of'fioeas may be earned by them in the per-
     formance of the duties of their offlcas,
     and it shall be the duty of the county
     clerk of each county to forward to the
     Comptrollerof Public Accounts of the
     State of Texas on or before the 3lst day
     of January a certified copy of such order.
     In counties having a opulation of less
     thantwenty thousand ? 20,000) inhabitants
     according te the last preceding Federal
     Census, it shall likewise be the duty of
     the Commissioners9Court, by its order
     duly made and entered of reoord at Its
     fi*st regular meet&g in January of each
     calendargear;.to determine whether coun-
     ty officers 6 such county (excludingcmun-
     ty surveyors,registrars of vital atetia-
     tics and notaries public) shall be compen-
     sated for the fiscal year on the basis of
     an annual salary or whether they shall be
     compensatedon the basis of fees earned
     by them in the performanceof their of-
     ficial duties, and lt.shall also be the
     duty of the county clerk to forward to
     the Comptrollerof Public Accounts of
     the State of Texas, on or before the 3lst
     day of January, a certified copy of said
     order of said CommissionersDCourt.
          'Set, 17 (a) The term sPrecinct
     Officerssas used in this Act means jus;
     tices of the peace and constables o o *
         Article 3898, V. C. S,:
          "The fiscal year, within the meaning
     of this Act, shall begin on January 1st
     of each year; and each district, county
     and precinct officer shall file his re-
     port and make the final settlementre-
     quired in this Act not later than Febru-
     ary 1st of each year; provided, however,
     that officers receiving an axmual salary
     as compensationfer their services shall,
     by the close of each month, pay into the
     Officersa Salary Fund or funds, all fees,
     commissionsand compensationcollectedby
     him during said month. Whenever such of-
     ficer serves for a fractionalpart of the
Eon. John Atchison, page 3      (V-519)


         fiscal year, he shall neverthelessfile his
         report and make final settlementfor such
         part of the year as he serves and shall be
         entitled to such proportionatepart of his
         compensationas the time gor his service
         bears to the entire year.
          It was held in Attorney General's Opinion No.
O-5061 that"Yection2 of Article 3912e, V. A. C. S., re-
quires the CommissionersCourt of every county in Texas
at its first regular meetiw in January of each year to
determinewhether certain precinct officers shall be
placed on a salary OP fee basis."
          It was held in Attorney General's Opinien Ba,
O-6462 that the Commissioners’ Court of a oounty under
20,000 population 00uia place its county offioirls on a
salary basis at its first regular meeting in January
and not subsequent thereto., We quote the following from
that opinion:
          "Under the provisions of Article 3898,
     the fiscal year of a county beg&    on Janu-
     ary 1st of each year, We think that It was
     contemplatedby the provisions of Section 2,
     Article 3912e, that during the month of Jm-
     uary, the commiasioners~court should have
     determinedwhether the designated county of-
     ficers would be compensatedon a fee or sol-
     ary basis, whereby said officers could ac-
     count for and dispose of the fees of office
     accordingly,in the manner provided in Arti-
     cle 3898. When the commissioners"court has
     determinedthat county officers shall be
     paid on an annual salary basis, we think
     that it was contemplatedthat such annual
     salary should be paid for the fiscal year,
     beginning January lst, in twelve equal in-
     stallments. We do not think it was within
     the contemplationof this Act that county
     officers shvuld be compensatedon a fee br-
     sis par a part of a year, and, for the re-
     maining portion of said year, be oompsnsrt-
     ed on a salary basis, If it were determin-
     ed that county officers should be paid on
     the basis of an annual salary, in any month
     later than January of any riscal year, it
     would be impossible to comply with these
     provisions as to fixing salaries on an
Hon. John Atchison, page 4   (V-519)


     annual basis and paying same in twelve
     equal installwnt* f*r that fiscal year.'
     (Emphasisours>
          In view of the foregoing and after oarefully
consideringall the pertinent statutoryprovisions,it
is our opinion that the holding in Attorney General's
Opinion No, O-6462 is equally applicable to precinct of-
ficers and we find no authority for the Commissioners1
Court to determinewhether precinct officers shall be
paid on a fee or salary basis at any time other than at
Its first regular meeting in January of each year..
          You are, therefore,advised that the salary
of a constable of a county of more than 20,000 popula-
tien cannot be fixed in any one year at any time later,
than at the first regular meeting in January of the corn-
missioners'Court,
                        SUMMARY
          The Commissioners Court in a ooun-
     ty of more than 20,000 populationdoes not
     have the authority to place preoinct offi-
     cers on an annual salary basis at any time
     later than at its first regular meeting in
     January of each year, Article 3912e, Sec. 2.
                                  Yours very truly,
                              ATTORNEY GERRRAL OF TRXAS



JR:mw                              John Reeves



                              APPROVED:



                                   KEY GERERAL
