,


                ‘TaE      ihTT0          EY       GENERAL
                                OFTEXAS




                                August   31, 1965


    Honorable Ed Keys                          Opinion No. C-497
    County Attorney
    Ward County Courthouse                     Re:    Under what circumstances
    Monahans, Texas                                   may a justice   of the peace
                                                      be paid more than Is pro-
                                                      vided in Article   53.07(d)
                                                      of Senate Bill No’. 107,
    Dear Mr. Keys:                                    Acts 59th Legislature,    1965?
              In your letter  requ&ting  an opinion from this                 office
    you submit certain  Tacts which we quote as follows:
                “The reierenced Article of the new Code
          of Criminal Procedure (Article  53.07(d))  limits
          the amount which can be paid to a Justice of
          the Peace as salary ‘not to exceed the maximum
          amount of fees which they were entitled   by law
          to retain before the effective  date of this
          code. 9”
                  With regard     to these    facts   you ask the following
    question:
                “Under what circumstances,    If any, can
          a Justice of the Peace be paid more than pro-
          vided by this sub-section     d? . , .”
              Senate,Bill 107, Acts 59th Legislature,               Regular
    Session, 1965, is known aa the “Code of Criminal               Procedure.”
    The new Code becomes effective January 1, 1966.
              ‘@a~ provisions   of the Code of Criminal Procedure of
    1965, moat pertinent    to our discussion, are quoted as follows:
                  “Art.   53.07    Justice    of Peace Salary
                  “(a)  Every justice of the peace in the
          State    of Texas shall be compensated by salary,



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Honorable   Ed Keys,   page 2 (C-497)


     the amount of which shall        be determlned   by the
     commissioners court.
            I,. . .

            “(d)   All justices   of the peace compensated
     on a fee basis before the effective      date of this
     Code shall receive     a salary  to be determined by
     the commissioners court of each county, not to
     exceed the maximumamount of fees which they were
     entitled    by law to retain before the effective
     date of this Code.”
          You assume by your question that the provisions      of
Article 53.07(a) and 53.07(d),    requiring that every justice
of the peace In the State of Texas shall be compensated by
salary, are valid.    However, Section 61 of Article  XVI of
the Texas Constitution   provides In part as follows:
            . . .In all counties in this State, the
     Commissioners Courts shall be authorized to
     determine whether precinct   officers  shall be
     compensated on a fee basis or on a salary
     basis, with the exception that It shall be
     mandatory upon the Commissioners Courts, to
     compensate all constables,   deputy constables
     and precinct  law enforcement officers   on a
     salary basis beginning January ,l, 1949; . . .I’
           The foregoing  constitutional amendment was adopted
by the voters of Texas at the General Election   in November,
1948, and subsequent thereto on lkcember 21, 1948, an Attorney
ffeneral’s Opinion No. v-748 construed the provisions  of the
foregoing  as follows:
            “H.J.R. 36 of the 50th Legislature,    amending
   /IArticle   XVI of Section 61 of the Texas Constitu-
     tion, placing sheriffs     and constables  on a salary
     basis,   Is self-executing   to the extent that said
     officers    shall be compensated on a salary basis
     beginning January 1, 1949.
          “The Justices   of the Peace, County Judges,
     County Attorneys and District    Clerks are.not
     ‘law enforcement officers’   within the meaning
     of Article  XVI, Sec. 61 of the State Constitution.”
          Under the language of Section 61 of Article XVI of
the Texas*Constltutlon and the holding In the above-quoted


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    ,




I
        Honorable   Ed Keys, page 3 (c-497)


        opinion,   It Is within the sole discretion     of the Commissioners
        Court to determine whether the .justlces      of the peace shall be
        compensated on a fee or salary basis.       Attorney General's
        Opinion V-1317 1951).       Consequently,  It  Is our opinion that
        Article   53.07(a !I and Article 53.07(d)  so far as each makes
        mandatory the compensation by salary for each justice        of the
        peace In this State, are In conflict      with the constitutional
        provision   quoted above and each is therefore     void.
                               SUMMARY
                    Both Article 53.07(a) and Article   53.07(d)
             Senate Bill 107, Acts 59th Legislature,     Regular
             Session, 1965, so far as each makes mandatory the
             compensation by salary for every justice     of the
             peace In this State, are In conflict     with Sec-
             tion 61, Article    XVI of the Texas Constitution
             and each Is therefore    void.  However, this con-
             stitutional   provision  makes It mandatory that
             all Constables and Deputy Constables be compensated
             on a salary basis.
                                       Very truly   yours,
                                       WAGGONER CARR
                                       Attorney General



                                          Ivan R. Wllllams,   Jr.
                                          Assistant
        1RWjr:mkh
        APPROVED:
        OPINIONCOMMITTEE
        W. 0. Shultz, Chairman
        Larry Craddock
        Roger Tyler
        Phllllp    Crawford
        John.'~;Reeves
        APPROVED    FOR THE ATTORNEY
                                   GENERAL
        BY: T. B. Wright
