                        ORNEY          GENERAL




HQlior&bleJ. E. Fitzgibbon
County Attorney
Webb County
Laredo, Texas
                             Opinion No. WW-610
                             Re:   Is the Commissioners'
                                   Court compelled to
                                   pay $2,900.00, or
                                   can the Court exer-
                                   cise discretion and
                                   pay nothing, or any
                                   amount not to exceed
                                   $2,9OO,OO,uuder
                                   Section 2A of Senate
                                   Bill 78, Acts of the
                                   52nd Legislature,
                                   Regular Session, 1951,
                                   Chapter 303, Page 485
                                    Codified as Article
                                   A819a-3, Vernon’s
Dear Kr. Fitzgibbon:               Civil Statutes.)
     You have requested an opinion on the following
queetlon: Is the Conmissioners'Court compelled
under Seation 2A of Senate Bill 78, Acts of the
52ud Legislature,Regular Session, 1951, Chapter
303, Page 485 Codified as Article 6819a-3, Vernon's
Civil StatutesI to pay either $2,9OO.OO,or nothing,
or can the Court exercise discretion and pay an
amount not to exaeed $2,9OO.OO.
     The caption, said Section 2A, and Section 4,
being the emergency clause, of said Act read as
follows:
    "An Act to amend House Bill No. 805, Acts of
    the Regular Session of the 49th Legislature
     roviding for additional compensationof
                     t Courts and.Crimi 1 bis-
    Kdges Courts
           Of Matri
                 in bounties having a pnGulation
    of not less than one hundred fifty-nine
                                                     .




Hon. J. E. Fitzgibbon,page 2 (~-610)


                       nor more than six hundred
                       inhabitants,aacording to
    the last preceding or any future Federal
    Census and certain counties bordering on the
    InternationalDoundarv between Mexico and
    the United States; providing the manner of
     ayment thereof; providi th t Art1 1
    539~, Revised Civil Stat%es tf TeAi Ef
    1925; as amended, and Article 5142a, Revised
    Civil Statutes as amended by Chapter 27,
    Acts of 51st Legislature, 1949, and Article
    5142b, Revised Civil Statutes as amended by
    Chapters 66 and 339, Acts of 51st Legislature,
    1949, shall not be repealed;,.,prohibiting,
    however, the payment of any 'salariesto
    District Judges under those said Articles
    for any month wherein salaries provided by
    this Act are paid, providing that if sny
    portion of this Act is unconstitutional,it
    shall not affect the remainder hereof; and
    dehlaring an emergenay.
    "Sec. 2A. That in all counties in this State
    bordering on the internationalboundary be-
    tween Mexico and the United States and
    having a population of not less than fifty-
    five thousand (55,000)inhabitantsaccording
    to the last preceding Federal Census, the
    Judge or Judges of the several District
    Courts and Criminal District Courts. as the
    case may be, may each receive annually, pay-
    able in monthly
    !rwTh
    toobe
    tion, out of the zenera fund thereof, as
    comnensationfor all judicial and administra-
    tiv‘eservices, including those as members of
    the Juvenile Board of said counties,now
    rendered, and any additional judicial admin-
    istrative services hereafter to be assigned
    to it or them, as the case may be, in addi-
    tion to all sala paid or hereafter to be
    paid by the Statzof Texas out of the State
    revenues.
    "Sec. 4. The fact that Judges of the District
    Courts and Crlml 1 Dl t I t Courts In coun-
    ties having a poz%atikro: not lessxan one
Hon. J. E. Fitzgibbon,page 3 (~~-610)


    hundredsfifty-ninethousand (159,000)nor more
    than SIX hundred thousand (6OO,OOO)'inhabi-
    tants and~certs3.n counties bordering on the
    InternationalBoun&ry between Mexico and th
     nitd Stt      have heavy judicial duties and
    haveenume~o~~a       atrative duties
    They shoulEd bi
                  e corn
                    """,ensate"7
                               , creates 2:::
    aency and an ntsera ve pu ~11~necessity i that
    the ConstitutionalRule reouirlnz bills to be
    read on three several days-in eazh House be
    suspended;and said~Rule is hereby suspended,
    and this Act shall take effect and be in force
    from and after its passage, and it ,is so enac-
    ted." (Emphasisadded)
    Your question Is prompted by the use of the word
"may" in Section 2A.
     Hess and Skinner Engineering Co. vs Turney et al,
203 S.W.593,594 (Tex.Sup.)states:
     'The Intent of a law is the essence of the law,
and it is to be gained from the entire context. The
words 'may' and 'shall' are not infrequentlyused
interchangeablyin legislativeacts. They are to
be given that meaning which will best express the
legislativeintent."
     Smlssen vs State, 9 s.w.112,118 (Tex.Sup.)
states:
     "The word tmayl in the connectionused in the
     sixteenth section was doubtlessly'usedin the
     sense of 'shall' and therefore was mandatory.
     Such is the settled constructionwhen the
     subject-matteris one in which the public
     have an interest to be proteoted or promoted
     by the exercise of a power, or performance
     of a prescribed duty, by a public officer,
     unless the context shows that the word was
     used in its primary slgnificatlon."
     When there be doubt as to the Intent of a'
provision of an act, the entire act, including
the caption and any emergency clause, are to be
considered.
                                                       .   -




Hon. J. E. Fitgibbon,page 4 (~-61.0)


     We conclude from the caption.and. emergency
                                        .     .
clause and Section 2A of._
                         said aeti whicn
                                    _ _ we nave
set out in full above, that the legislatureln-
tedded a peremptory finding'of fact and decision
that said judges "'haveheavy judfcial duties and
have numerous administrativEduties for which
they should be compensated, ereatlng "an imper-
FftiVf?
      public necessity, and intended an act
 providing for additional compensationof judCl;es"
and "providingthe manner of payment thereof,
and~enablingsuch judges to receive such addi-
tional compensation,and fixing the amount thereof,
and authorizing and requiring same "to be paid by
the county having such populatfon out of the gen-
eral~fund thereof,' and to be "payable in monthly
installments,"and that It was not the intent of
this act to vest any dfscretfon in the Commis-
alonerat Court.
     Another similar act passed by the same legis-
lature is House Bill 395, Acts of the 52nd Legis-
lature, Regular Session, 1951, Chapter 252, Page
394 (Codifiedas Article 681ga-7,  Vernon's Civil
Statutes). It contains in Its caption "an act
providing for the fixing of compensationof judges”
and "establishinga lim%tat%onof the amount of
such compensation." It contains in its emergency
clause "the fact that judges of the district
courts ---- have numerous judicial duties and nu-
merous administrativeduties for which compensa-
tion is not now received, creates an emergency----."
     Section 1 of said Act provides in part II----
district judges may receive annually payable fn
monthly Installments,a salary to be fixed by the
Commissioners~Court, of each county,
by said county out of the general fund
     We conclude that, if the 52nd Legislaturehad
intended  that Section 2A of its S. B. 78 provide
for the Commissioners'Court to exercise discretion,
that instead of its merely stating "$2,9OO.OO,to
be paid by the county," the Legislaturewould have
stated "a salary to be fixed by the Commiasloners~
Court of the county, to be paid by said county,"
as it did in H. B. 395, or simflar words, and that
the caption and emergency clause of said S. B. 78
would have contained statements similar to those
quoted from the caption and emergency clause of Its
H. B. 395.
-   .




    Hon. J. E. Fitzgibbon,page 5 (Wf-610)


             It is our opinion that the Act requires the
        county to pay said $2,900.00 annually in monthly
        installments,and that It does not empower or
        authorize the Commissioners'Court to exercise
        its'dlscretionand pay a lesser amount or noth-
        ing.
              Accordingly,the answer to your question
        should be that the Commissioners'Court is com-
          elled under Section 2A of said S. B. 78 to pay
        $ 2,9OO.OO annually, and such Court cannot exer-
        cise discretion and pay a lesser amount or noth-
        ing.
                              SUMMARY
                  Section 2A of Chapter 303, page 485,
                  Acts of the 52nd Legislature,Regular
                  Session, 1951, (Article6819a53,
                  V.A.C.S.) reading In part: ----
                  (District)Judges----may eaoh receive
                  annually, payable in monthly install-
                  ments, $2,9OO.OO to be paid by the
                  county having such populatior+,out of
                  the general fund thereof----, does
                  not merely permit such county to make
                  such payments, or to pay less, or to
                  pay nothing, as its Commissioners'
                  Court may in its discretiondetermine,
                  but said provision both authorizes and
                  requires such county to make such pay-
                  ments.

                                Very truly yours
                                WILL WILSON
                                Attorney General of Texas



                                    Willism R. Hemphlll
                                    Assistant
        WRH:jlw
Hon. J. E. Fitzgibbon,page 6 (~~-610)


APPROVED:
OPINION COMMITTEE
George P. Blackburn, Chairplan
Milton Richardson
L. P. Lollar
Leonard Passmore
Jack Goodman
REVIEMEDFORTHE     ATTORNEXGENERAL
BY: W. V. Geppert
