        -OFFICE OF THE ATTORNEY GENERAL OF TEXAS
                                  AUSTIN




Bonorable XelBo~ Glaea
Dfstxiot Attorney
5t.s Judloial     TGtrlot
Texarbna,       T+xtu3
Dear Slsz




            Your request for                          en reoeived enb
carefully conti%ored by this                          8 quote rrQQIyour
request as foM.owi:
                                                     eady sent ti




                                              e a?B Case Co*=-
                                           0sitate    to requoat

                                       s, of oourses a duly
                                      by attomsy     in oaoh or



                            I should be dmftad    $nto the Amy
                      as a .mlvats \rould this oroate     a
                      vaoanoy in my offioe?
                TL    Zf I should go into the Army with a
                      ,ommission aoul3 t!tle ohmgo the
                       ata+   of the above queotfon?


                                              .
BoaorabLe Weldon Glass,   Page 2


             ‘3.   If I should be drafted tie 8 private in-
                   to the Army what would beoome of ‘the
                   salary’ provided for ay oif io sl
           . I. . . .”

               Opinion l:o. O-5039 of this department, ‘addressed
t.~ the State Comptroller, written by Attorney C-erierol fienn,
cmstrues the holdiw Of the 32Prem6        Court of Texfie in the
cme of Cramor vr Sheppsrd, No,      6047,    delivered December 26,
lg&z (State’s EIotloo for Re-hearing overruled oh January 20,
19&3) not yet reported.      We quote proa Geneml &nn’a opin-
ion  ~8 r0ime:                            :,
             *?& asatie that the members who have been
     oocmiss.Soned ofTloer8  or have been anlisted mere-
     ly in the ‘Army1 mentioned by you, aontenplates
     thu Anny of the United States es contredistin-
     &shed from the Regular Army.
            “On two predlous ooaesions we have advised    ’
    you ai to our view of the Constitution aa related
    to tho status of men in the amed foroes who hold
    offioe under the state government. Cur ocmstruo-
    tion OS the Constitution haa not been sustained by
     the Supreme Court. In tho oases of Car enter v.
    Sheppard Comptroller, 145 s. x. (2nd) ~$2 and Cra-
    lper 0. sheppara (not yet reported),  tht3 Supmine
    Court bee plaoed a vorg liberal aonstruotion on
    Seotions 33 end 40, ArtdOle 15, or our Constitu-
    tion eo ea ta permit any person in the amed, Yoroea,
    but not in the regular 8-d    foroes,  to draw & sal-
    ary both froic the Federal goverment and the State.
    Oti view of the Supreme Court’s opinion is strength-
    eneu by the dissenting opinion of the Chief Justioe
    in the Cramr oase when hs says:
            “‘The majority opinion prooeeds on the
       theory that our C6nstltution exempts all those
       in the armed toroes OS the United states ex-
       oept members of the reelar   Amp. *
           +W~Yoan safely’follm  the Chief Sustloe of
    our suprema Court when &a says what the majority
    opinion in the Cramer oaae means*
Eoaorable !:‘eldon Olass,         Page 3


                 “The oonstruotloa
                                of the Oonstitutlon by
        our c3igreae Court is the law, and we are boun4
        by oucrh oonstruotion.  Theretore, we advise you
        to Issue uarrante to all persons about whomyou
        make &nquiry.”
           fn opinion ho. O-5030 of this department we held
that, a obunty attorney who onllsts in the Army during the
present war iind nuboequently beoones an officer in tho Amy
of the United States does not vaaate his office of oouaty
attorney, baaiop, our holding therein on the Cramr v. Shep-
pard case.
          %cler ,the holding of the majority opinion of ‘the
SupremeCourt Ln tho Crsner Y. Sheppard oqse we answer your
rlret and second queotlons eaoh in the negative.
                 Artiole    5, Seation 2&, of our State Constitution
provides, in part,           as followet
               It       The Lo&ielature my provide for ths
         elsotl&'o;    diatrlot attorneys is such dietriots,
         a8 IUW be deeueU neoossary. and m&e movislon
         for tixe ooqwnsation or 21l;trlot at.toineys, ana
        .oounty attorneys; provided. district     attorneys
         shanl.l~reoeive an annual salary of’ five hundred
         dollars, to be mid by iho <itate, ccci suoh fees,
         oomlssions    fmi uerouisitea  as JXP,Ybe Drovided
        by la~n.U
             fbotion       1 of Artiole 38861, Vernon*6 Annotated Texas
Cltil    Statutes,      reads as followet
                 “Section1. yron aad after Jaauciry 1, 1936,
        in all  Judicial ClstrlOtE in this Stete tho Dis-
        triot  Attorney 12 aaah suoh Cistrict   shall reoeive
        from. the State as pay for hle aervloes the sum of
        Pour Thousand Collars ($4,000) per year, whluh
        anld Four Thous-ad DOllarS ($4 300) shall include
        the Five Hundred COllarS (c5OOj salary per year
        now allowed such Dlstrlot Attorneys~ by the Constl-
        tutlon      this state; providln& that In all. Sudl-
                   of

        Oial 3lstrlota    In this state oomposed of tao (2)
        or more oountles in one (I) of which suah oounties
        there ls a olty oontainlng the po Jlation of not
        less than ninety thousand (90,000 P’inhabitants
Honorable xeldon Qlaas, Page 4


    aooordlng to the last graoedlng Federal’Canaue,
    the Dietriot Attorney of suoh DlstrIot shall re-
    031~3rron the State as pay for his aemrloee t&e
    sum of Five Thousand Five Hundred Dollars (35,500)
               whIoh said Five Thousand Five Hundred
    D”%gr[c5     500) shall Inolude the Five Hundred
    Dollars ($560) salary per year now allowed auoh .
    Dlotrlot Attorneys   by the Constitution of this
    state.   Suoh salary shall be paid In twelve (12)
    equal nonthly Installments upon warrants drawn
    by the Oo?nptroller oi Publio Amounts upon the
    State Treasury,    Provided that nothing In this
    Aot shall be oonstrued so as to deprive Dlstrlot
    Attorneya ai the expense alltxsanoe allowed or whloh
    may hereafter be allowed by law.’
           The case of.Spears Y, Sheppard, 150 s. g..(2)    769
(Texaa Suprem Court), oonetrued Article 5890a, V. A. C. S.,
prior to Its auea&ent In 19W by the 67th Legislature of
Teme. This ease held that said Artlole 5890a antltllng all
0fri03r8 and eniployees or the State and its subdivisions,
nho are mmbers of the Eational Guard, to leave of absenoe
without loss of effioiency   rating on all daya during whloh
they are required to engage in training without loss or pey
for the first twelvo days or suoh leave or absenoe did not
apply to nonbore of the Legislature,   but only to those em-
ployees who were members of the DatiOnaZ. Guard and whose
salary and tenure of otiloe wore fixed by the Legislature
+I did not undertake to doal with UOnatltutiOnal    orricers
whose compensation was tired by the Conetltutlon.    We quota
mm the oocrt’a opinion as r0ii0w8t
          *Respondent oontends that under the above atat-
    ute the relator could draw pay for only 12 daya
    while absont from the regular meetings of the Zen-
    ate.   ‘:le think It Is obvious that the above statute
     Is not auulicnble to members or the i+e~?islature.
    fjy that urticlo the Lc~4.slaturo undfirtaok to rerru-
    ‘late the leave or abseme     rmriod 0r those enployeea
    who YJO~Qnoabsrs of the Xatlonal Guard and whose

    tutIon&. oZicer-     whose compensation 1733fixed   bq
    the Constitution.”    (Undersooring ours)
                     .
                       Donorable Weldon Class,    Page 5


                                   The Artlole ,(589Oa1 was amended in 1941 by speolflc-
                       d.ly   exempt&g mnzbers of the Legislature mm its provisions.
                                 It nust also be borne In mind that at the time or
                       the Spears V. Sheppard deoleion this country warr sot at war.
                                  The District Attornoy is a constitutional  orrloer
                       aad at least part of hla salary ($500.00) is set by the Con-
                       rtitutlon.   It is true thet Artlole 16, r;eotion 10, or our
                 :
                       state Constitution authorizes the Leglelature to “provide ror
                       &dluotiOnS rrm saLarIes 0r pub110 0riiO0FOwho my ncgleot
                 I’
                  i:


                 1     the performance Or MY duty assigned them by law”* It is our
                       cplnion, hmever, that any such deduction from salary of a
                       pub110 0rrloor,  espeoially rroa a fixed, derlnite oonotitu-
             i:
             t
             .
                       tlonal sum, should be strictly   oonstruod, end suoh povrer to
             ‘
                       deduct should be derived from sohe plain, uaanblguous appll-
                       osble statute and not be derived from a questionable or de-
    .;       :         batable conetruotlon 0r a statute..
             t
    .                              Does Art&ale 589&t, V. A. O. S., whioh uses the ex-
    _ i                pression won all days during which they shall be engaged in
                       rleld or ooast defense training* deal with actual war time
    . _                allltary servloe?    It Is true that in wartime a soldier must
                       be tralhed but that is only lnoldental to the rain purpose ot
:        .
                       his service which in the final analysis oonslsts of conbat
                       and/or all means necessary to annihilate the enemy. We hold
                       here that Article 5890a, V. A. C. S., has no applioation   to
                       gc    situation ae disclosed by tho racts stated in your let-
                           .
                                    We gather f%vm the fOll0wlng language: -
                                    *. . . Judge Dixon did not announce No
                              resignation as distrlot  judge et the time he en-
                              tered the anny, nor did. he publicly renounce Ns
                                                                       504

Donorable Weldon Glass,     Pago 6


of the majority oplnlon~ of the Supreme Court that Judge DIxoa
would have been entitled to receive Ns salary aa District
Judge if he had inelated upon same (whloh he did not) and
that it wao a question to be left solely to Judge i)lxon*s
ccoso or propriety aa to whether he would resign Na orrice
ad alao as to whether he would forego the pay to which he
ms entitled as Dlotrlat Judge.
           #e aall your attention to Artiole 327, Vernon’s
,$naotated Texas Civil Statutes, whtoh reads a8 follows:
             When any district     attorney shall tall to
       attend any term or the district      court or shy coua-
       ty In hQ district,     the .dlstrlct clerk of such
       county ohall certify tho fact of such rallure un-
       der his ofricial   seal tc the Conptrollek, and un-
       less some satisfactory    reason for such rallure is
       shown to the ooqtroiler,      such district  attorney
       ahall reoclve no eolary for the time that he has
       so railed to attend.”
           It ,Is also our 0plhIon in 0Iew 0r the Cramr 0.
Sheppard case ‘that your being drafted into the Army of the
United States during wartim and being subject to the or-
dere or such Army would oonstltute "SatlsfaOtOry   r8asonR
undar Article 327, supra, for your failure to attend ooiirt
in the reapeotlve counties or your dIstrlot.
           Xn ankvor to your third auestion In view ot the
Cramerv. Sheppard oaoe it followa that it le solely a cues-
tion of personal propriety for you to detertine as to whether
you wish to hold your oT’2lae and draw your salary under the
facts stated.   If you wish to hold the office and insist up-
on payment 0r your salary it la our oplnIon that you are en-
titled under the lay to reoelve samet
            We enclose   herewith copies   Or   opinions   EOS.   O-5039
mtl 0-5020, al00 a copy or the ma3orIty and dIesent&               OPin-
iOAS   In the Uramer v. Sheppard casei
                                                Qery truly   yours
                                        ATTQRDSY
                                               GEkTRRAL
                                                     OB TEXAS


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