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     Hon. Fred L. Blundell     OpinionNo. O-4592
     DistrictAttorney          Re: Under the facts submittedcan the commis-
     Lockhart,Texas            sionerscourt place a constableof one precinct
                               on a salarybasis without treatingall other
                               constablesof otherprecinctsin the county on
     Dear Sir:                 a similarbasis,and anotherquestion?

              Your letter of Nay 12, 1942, requestingthe opinionof this de-
     partment,reads as follows:

               "Becauseof the urgencyof nrovidinga way of assisting
          in law enforcementat Luling,theCommissioners'Courtof this
          countywould appreciateas speedya reply as possibleto the
          questionsinvolvedin the attachedstatementof the subject
          matter.

               "We will appreciateany informationon the matter that
          you can give so that the -courtcan act in the matter, if there
          is anythingthey can do."

                 ::equote the statementaccompar@ng your inquiry,which is as
     follows:

               “IN Ia: Constable'sSalary or Pay of Prec. Two, Caldwell
          Co. Texas.

               "A history of the point inquiredabout arises out of the
          fact that the presentConstableof said precinctis a valuable
          law enforcementofficerresidingwithin said precinctat Luling,
          Texas, in which city one deputysheriffresides. He enforces
          the law well and the people of the precinctand city want to
          keep him, but the fees of his office are insufficientfor his
          maintenanceand a fair possibilityezdstsof his resigningun-
          less somethingcan be done.

               "Art. 3912e (Sec. 17) providesthat constable:remain on the
          fee basis unless the commissionerscourt determinesotherwise;
          all constablesof this county are now on a fee basis; none of
          the Justices of the Peace or Constablesfees in this county go
          into the Officers'Salary Fund as providedin said article;the
          people of Luling want for their said constablesome augmentation
          of his fees by act of the Commissioners'Court of the county if
          this is possible.
                    ,-




Hon. Fred L. Blundell,page 2   (O-&92)



    "QuestionOne: Under the above facts can the Commissioners'
    Court place said constableof said PrecinctTwo on a salary
    basis without at the same time treatingall other constables
    of the other precinctswithin the county on a similarbasis?

    "QuestionTwo: If the above questionis answeredin the
    affirmative,could said Commissioners'  Court pay in part or
    in whole said constable'ssalary out of the GeneralFunds of
    the County,or out of any particularfund, such as the Road &
    Bridge Fund of said precinct,or the area of the countywithin
    said precinct? In clarificationof this last question,I will
    explainthat the area of Justice PrecinctNo. Two has the
    same limits as said Road & BridgeFund No. 2 and of Commission-
    ers' PrecinctNo. Two of said county. The people of said area
    and.citysubmit the questionthat as itis their taxes that
    make up the funds of said Fund No, 2 and as they need this pro-
    tectionfrom said constablethat they would not objectto at
    least part of said constable'ssalarybeing paid out of said
    fund if possible.

    'As said constableis contemplatingtaking other employment,
    more compensative, unless somethingis or can be done, it is
    urged that a reply to the above be given as soon as possible,
    as they thirk law enforcementin their vicinitywill suffer un-
    less a way can be found to relievethe presentsituation."

          This departmenthas heretoforeruled on severalquestionssimilar
to the questionspresentedin your inquiry. In our opinionNo. O-516 (con-
ferenceopinionNo. 30&), this departmentheld:

         "The consnissioners
                           court is without authorityto place
     one
       precinctofficerupon a salary basis and leave other offi-
    cers upon a fee basis. The systemmust be uniformand the
    commissionerscourt must place all of the precinctofficers
    upon a salarybasis or leave all upon a fee basis-underthe
    salary law.

         "Wherethe commissioners court places the precinctoffi-
    cers of the countyupon a salarybasis as outlinad in the
    officerssalarylaw, the commissioners  court has no authority
    to set a precinctofficerssalary at less than the total sum
    earned as compensationby him in his officialcapacityfor the
    fiscalyear 1935, and that the commissioners court has no au-
    thorityto set a precinctofficerssalary at more than the
    maximumamount allowedsuch officerunder laws existingAugust
    2h, 1935."
           In opinionNo. O-2421 this departmentheld that:
.   ’




        Hon. Fred L. Blundell,page 3   (04592)


                 "It is the opinionof this departmentthat it is not
            possibleto compensatea justiceof the peace on a salary
            basis of countieshaving a populationof lessthan20,000
            Ttiabitantsaccordingto the last preceding federalcensus
            unless all the precinct officersof said county are compen-
            sated on a salarybasis, and the commissionerscourt of said
            countyhas passed an order providingfor the compensationof
            all precinctofficersof the county on a salarybasis at the
            first regularmeeting in January of the calendaryear in
            question."

                  Our opinionNo. O-915 concernsa similarquestion. We enclose
        copies of all of the above mentionedopinionsfor your convenience.

                  In view of the opinionsmentionedabove and the authorities
        cited therein,your first questionabove shouldbe answeredin the nega-
        tive and is so answered.

                  As we have answeredyour first questionin the negative,we do
        not think that your second questionrequiresany answer. Therefore,we
        do not deem it necessaryto discussor pass upon said question.

                 Trustingthat the foregoing fully answersyour inquiry,we are

                                            Yours very truly

                                            ATTORNEYGENERALOF TEXAS

                                            By /s/ Ardell Williams
                                            Ardell Williams,Assistant

        APPROVEDMAY 19, 19112
        /s/ Gerald C. Mann
        ATTGRNEYGENDAL OF TEXAS

        APPROVFLU:
                 OPINIONCOMMITTEE
        BY:      BWB, CHAWN

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