                                   Aucrrr~   il. -
PRICE   DANIEL
**IORWEY GENERAL                      Decmeber 21,         1948



   Hon. Geo. H. Sheppard                             Opinion No. v-748
   Comptroller of Fublic Accounts
   Austin, Texas                                     Re:   Several questions   regard-
                                                           ing the effect   of the re-
                                                           cently adopted Constitutlon-
                                                           al amendment to Section 61
                                                           of Art. XVI of the State
                                                           Constitution.

    Dear Sir:
              You have asked several questions regarding the effect   of
    H.J.R. 36, 50th Legislature,   which was recently adopted as an
    amendment to Section 61 of Article XVI of the Texas Constitution.
    It provides:
                   "All districtofficers   in the State of Texas
         and all county offic,ers      in counties having a popu-
         lation of twenty thousand (20,000) or more, accord-
         ing to the then last preceding Federal Census, shall
         be compensated on a salary basis.         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 manda-
         tory upon the Commissloners Court. to combensate all
         constables,    deputy constables    and oreclnct    law en-
         forcement officers     on a salary basis beginning
         Januarsl.     1949; and In countlea having a population
         of less than twenty thousand (20,000),        according to
         the then last preceding Federal Census, the Commls-
         sloners Courts shall also have the authority           to de-
         termine whether county officers        shall be compensated
         on a fee basis or on a salary basis, with the ex-
         centlon that it shall be mandatory upon the Commls-
          sioners Courts to compensate all sheriffs,         deuuty
          sheriffs,   county law enforcement officers       includlnu
          sheriffs   who also perform the duties of assessor and
          collector   of taxes, and their deputies,      on a salary
         basis beginning January 1, 1949.
                 "All fees earned by district, county and precinct
          officers   shall be paid Intothe county treasury where
          earned for the account of the proper fund, provided
Hon. George H. Sheppard,   page 2            v-748


    that fees Incurred by the State, ccunty and any
    municipality,   or in case where a pauper’s oath is
    filed,    shall be paid into the county treasury when
    collected   and provided that where any officer   is
    compensated wholly on a fee basis such fees may be
    retained by such officer    or paid into the treasury
    of the county as the Commissioners Court may alrect.
    All Notaries Public, county surveyors and public
    weighers shall continue to be compensated on 8 fee
    baals .*
         Your first   question   reads as follows:
          “1 . Is the foregoing amendment self-enacting
    or does It require an enabling act?”
          In Mitchell  County v. City National Bank, 91 Tex. 361,
43 S.W. 880, the Supreme Court quoted with approval from Cooley
on Constitution81   Limitation:
           “A .conatltutional  provision  may be said to be
    self-executing     if it supplies a sufficient   rule by
    means of which the right given may be enjoyed and
    protected    or the duty Imposed may be enforced;    and
    it is not self-executing     when it merely indicates
    principles,    without laying down rules by means of
    which these principles     may be given the force of law.”
          In Hemphlll v. Watson, 60 Tex. 679, the Supreme Court
held that any consltutional   provision    is self-executing    to the
extent that anything done in violation       of It Is void and that
parties  entering into usurious contracts      “did 80 with the fill
knowledge that they were doing a prohlbltlve        act for which they
might incur penalties   If the Legislature     should discharge   Its
duty and prescribe   them.”
           Article  XVI, Section 61, as amended, provides that it
shall be mandatory upon the Commissioners’ Courts to compensate
the sheriff,    deputy sheriffs, constables,  deputy constables,
county law enforcement officers    and precinct  law enforcement of-
ficers on a salary basis beginning January 1, 1949.        This amend-
ment is self-executing    to the extent that such officers     shall be
compensated on 8 salary basis beginning January 1, 1949.         See
copies of companion opinions Nos. V-749 and V-750.
                                                           I
           Your second and third questions are:
          “2 l Does the language ‘with the exception that
     it shall be ,mandatory upon the Commissioner’s Court
     to compensate all Constable, Deputy Constable and pre-
Hon. Geo. Ii. Sheppard,   page 3            V-748


    clnct law enforcement    officers    on 8 salary basis begln-
    nlng January 1, 1949'    include    Justlce of the Peace?
    (emphasis supplied)
          "3.  Does the language 'with the exception    that
    it shall be mandatory upon the Commissioner's     Court
    to compensate all Sheriffs,    Deputy Sheriffs and
    county law enforcment officers'    Include the County
    Judge, County Attorney,   District  Clerk and all other
    county officers?"   (emph8SiS supplied)
          The rule of constructionapplicable  to the foregoing
questions  is well stated In the case of San Antonio I.S.D.    v.
State, 173 S.W. 526:
           ?iowever, there is a rule of construction         as to
    constitutional    and leglslatlve    provlslons,    known 8s
    the rule of ejusdem generls,       which, we think, can
    with peculiar aptitude be applied to the section           of
    the Constitution    in question.     The ejusdem generls
    rule is that, where general words follow an enumera-
    tion of persons or things by words of a particular
    and specfflc    meaning, such general words are not to be
    construed in their widest extent, but are to be held
    as applying only to persons or things of the same kind
    or class as those specifically       mentioned.    . . . The
    boards enumerated In the Constitution         are clearly   all
    state boards or boards of the state, which, we deem,
    for the purposes of 8 oonsideratlon         of the question
    Involved,    are the same thing, and, if the rule of
    ejusdem generls Is applied,       it would reject    any
    boards except those of the same general class,           rank,
    or grade with those enumerated."
          It was held In Satterwhlte      v. State,     17 S.W. 2d 825:
            "While this court has held that 8 magistrate       is
    8  peace officer    within the meaning of the terms of
    article    484, P.C. 1925, which, among other things,
    makes inapplicable      to peace officers  the provlslons
    of article    483, P.C. 1925, defining    the offense of
    unlawfully    carrying arms, we have also held that the
    duties of peace officers       as defined by the statute
    are broader than those of a justice of the peace.           A
    justice    of the peace Is a magistrate.     Article   33,
    C.C.P. 1925. Under the statute relating        to the duties
    of peace officers,      a justice  of the peace is not clas-
    sified    as a peace officer.     Article 36 C.C.P. 1925.
          "Appellant   was not a peace officer        In the sense
Hon. Geo. H. Sheppard,     page 4           v-748


    that his right to effect  arrests was governed       b3; the
    statutes defining the duties of peace officers.
            While the officers    mentioned In your second and third
questions m8y be "law enforcement officers"          In a broad sense,
they do not possess similar powers of the sheriffs          and consta-
bles (those persons specifically        enumerated).    We believe  that
under the ejusdem generls rule, It was the intention           of the Leg-
islature    In submitting and of the people In adopting H.J.R. 36
to limit this exempted class to sheriffs,        deputy sheriffs,    and
other law enforcement officers       of that particular    type.   There-
fore,    it is our oplnlon that    Justices  of the Peace, County Judges,
County Attorneys,     and Dlstrlct   Clerks are not "law enforcement
officers"    within the meaning of Article     XVI, Sectlon 61.
          Your fourth    question   reads as follows:
           “4.  In the event questions No. 2 and 3 are
    answered in the negative may this department on and
    after January 1, 1949 pay a District    Clerk, County
    Attorney or a County Judge any fee earned on or after
    January 1, 1949 In a felony case?     Said officer   or
    officers   being In a county under 20,000 popllatlon
    and In which county these officers    by election  of
    the Commissioners'    Court are to be paid for the year
    1949 on a fee basis."
          In counties under 20,000 Inhabitants      according to the
last preceding Federal Census where the Commissioners1 Court has
determined that all county officers      shall be compensated on a
salary basis,  the provisions   of Article    3912e, Section 3, V.C.S.,
prohibit  the State from paying to said officers      any fees.   Since
the Commissioners'   Court has not placed all the county officers
on a salary basis,   the county officers    named in the fourth ques-
tion (County Attorney,    County Judge and District     Clerk) may re-
ceive fees from the State earned by them In a felony case on or
after January 1, 1949.
          Your fifth    and sixth   questions read as follows:
          "5 . Is any of the money appropriated     under H.B.
    244, Regular Session of the 50th Leglslature      for the
    support of the judiciary   avallable   for the payment of
    the salaries,  either directly   or Indirectly,   to offl-
    cers mentioned in the foregoing     amendment on and after
    January 1, 1949 in counties having the population       of
    less than 20,000?
         “6 . If you rule that the money appropriated  In
    H.B. 244 supra is available for the purposes mentioned
Hon. Geo. H. Sheppard,     page 5            v-748


    In question No. 5 then shall this department apportion
    and pay same under Article   3912e, or shall we continue
    to pay the fees as earned to the said officer     for the
    proper find in the county treasury.     Reference is here
    made to the last paragraph of Section 1 of the amend-
    ment to the Constitution   above mentioned.”
            The Judlclary Section - Comptroller’s   De artment Appro-
priation    (H.B. 244 Acts 50th Legislature,    p. 639 P provides the
following    on page 645:
                                            For the years
                                               maing
                                        August       August
                                      31, 1948       31, 1949
      9. Fees and costs of sheriffs,
     II’



     attorneys and clerks in felony
     cases, and fees of county juag-
     es, county attorneys,     justices
     of peace, sheriffs    and  consta-
     bles Fn examining trials      where in-
     dlctments are returned.. . . . . 60,000 .OO      60,ooo .oo
     "lo.    Apportionment to counties
     where county officers    are paid
     salaries.    . . Should any county,
     by election    of the Commlssloners
     Court, change from salary to fee
     basis or vice versa, the Comp-
     troller   shall make adjustment in
     the approprlatlons    by transferring
     the correct    amount from approprla-
     tion made for fees ana costs of
     sheriff   and other county offlclals
     to appropriation    to pay counties
     on a per capita basis or vice versa
     as the case may be. . . . . . . . . 5I4,OOG.OO   514,000 .OO”
         Since Section 9, above quoted, Is appropriated     for the
purpose of paying fees, said section could not be used for pag-
ment of any salaries.    Section 10, however, Is appropriated   for
the purpose of apportionment to counties where the county officers
are pald a salary.    The apportionment Is to be made as prescribed
by Sec. 6 (a) of Article   3912e which provides:
             “In counties wherein the county offlclals   are
      on a salary basis,     In addltlon to the monies deposi-
      ted In sald Officers’     Salary Fund or funds under the
      provisions    of Sections 1, 3, and 5 of this Act there
lion. Oeo. H. Sheppard,   page 6            v-748


    shall be deposited     therein   . . . such awns as may
    be apportioned to such county under the provisions
    of this Act, out of the available        approprlatlons
    made by the Legislature      for such purposes, provided,
    however, that in counties where the Commlssloners~
    Court Is authorized     to determine whether county of-
    ficers   shall be ComDensated on a salary basis,=
    apDortIonment shall be made to such counts until the
    ComDtroller of Public Accounts shall have been notl-
    fled of the order of the Commissioners'          Court that
    the count?? officers    of such counter shall be cornpen-
    sated on a salary basis for the fiscal          year    and in
    that case the first     quarterly   payment of sudh appor-
    tionment shall be made In fifteen        (15) days after re-
    ceipt of such notice by the Comptroller,          and the re-
    malnlng payments on the dates hereinabove prescribed.
    It shall be the duty of the Comptroller of Public Ac-
    counts to annually apportion to all counties            in which
    the county officers     are to be compensated on the basis
    of a salary any monies, appropriated         for said year
    for such apportionment;      each county entitled       to par-
    ticipate   In such apportionment shall receive          for
    the benefit    of Its Officers'    Salary Fund or funds Its
    proportionate    part of the appropriation       which shall
    be distributed    among the several countles        entitled
    to participate    therein,   on the basis of the per capita
    population    of each county according to the last pre-
    ceding Federal Census."
           At the time the appropriation       of the 50th Legislature
was made, there was no authority for the payment of a salary to
one county officer     without compensating all county officers        on
a salary basis.      Llkewlse at the time of the enactment of 9. B.
No. 5, Acts of the 44th Legislature,         It was contemplated that
only an apportionment to counties under 20,000 inhabItants            would
be made where the Commissioners' Court has elected           to place all
the county officers      on a '&alary baaIs!'   Apportionment to counties
where the Commissioners'      Court has placed Its county offfcers        on
a "fee basis" IS not authorized by 9. 3. No. 5, Acts of the 44th
Legislature.      Since the appropriation     made in section   10 of
Judiciary    Section of H.B. 244 Acts of the 50th Legislature         can
only be used as prescribed       by S.B. 5, Acts of the 44th Legislature,
the money so appropriated       is not available   for the payment of the
salaries   of the sheriffs    In those counties where the Commlssion-
ers' Courts have elected to compensate the other county officers
on a "fee basis .'I
            In view ofour answer to your fifth       question,   It Is un-
necessary   to answer your sixth question.
Hon. Geo. Ii. Sheppard,    page 7           V-748


           Your seventh   question   reads as follows:
           "7 . May this Department pay a felony fee earned
     on or subsequent to January 1, 1949, to a sheriff      or
     constable  in a county under 20,000 in population     and
     in which county the other county and precinct    officers
     are compensated on a fee basis?
           The State Is prohibited   from paying     fees   to county   and
precinct   officers In the following    instances:
         1. County officers      In counties containing   a population
of twenty thousand InhabItants or more according       to the last pre-
ceding Federal Census.   ArtlCl8    39128, Section 1, V.C.S.
         2.   County officers     In counties where the Commissioners’
Court shall have determined      that all the county officers    shall
be compensated on a “salary      basis.”   Article 3912e, Section 3.

         3. Precinct  officers  in counties where the Commlsslon-
ers’ Court shall have determined that all the precinct  officers
shall be compensated on a “salary basis.”   Article 3912e, Sec-
tion 3.

            4. Precinct   officers in counties where all       the county
officers    are compensated on a ‘balary basis.”  Article       3912e,
Section    17.
          Neither the sheriff  nor constable  mentioned in your
seventh question falls within any of the four categories      listed
above.   They are not In counties having a population    of twenty
thousand inhabitants  or more. Neither has the CornmIssioners      ’
Court determined to compensate its county and precinct     officers
on a “salary basis” rather than a “fee basis.”     You are, there-
fore, authorized to pay a felony fee earned on or subsequent to
Jan;lary 1, 1949, to a sheriff   or constable in a county under
twenty thousand Inhabitants where the Commissioners’ Court has
determined to compensate its other county and precinct     officers
on a “fee basis .”
                                 SUMMARY
            H.J.R. 36 of the 50th Legislature,    amending
     Article   XVI of Section 61 of the Texas Constltu-
     tlon, 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.
Hon. Geo. B. Sheppard,   page 8           v-748


          The JUstiC83 of the Peace, County Judges
    County Attorneys and District   Clerks are not 'law
    enforcement officers"  within the meaning of Arti-
    cle XVI, Sec. 61 of the State Constitution.
          The Comptroller la authorized   to pay the Dla-
    trlct  Clerk, County Attorney,   and County Judge In
    a county where its officers    are compensated on a
    "fee basis" any fee earned   by them In a felony
    case on or subsequent to January 1, 1949.
           Money appropriated   by the 50th Legislature
    In Section 9 and 10 of the Judiciary      Section,  Comp-
    trollers   Department, Is not available    for the pay-
    ment of the salaries     of the sheriffs  In those coun-
    ties where the Commissioners'     Courts have elected
    to compensate county officers     on a "fee basis."
           The Comptroller  is authorized  to pay felony
    fees earned on or subsequent to January 1, 1949,
    to a sheriff   or constable  In a county under 20,000
    Inhabitants where the CommIssIonera' Court has de-
    termined to compensate Its other County and Precinct
    officers   on a “fee basis."
                                  Yours very truly,
                             ATTORNEY
                                    GENERALOF TEXAS
                                  By s/John Reeves
                                        John Reeves
                                        Assistant

APPROVED:
s/Price Daniel
ATTORNEY GFNERAL
JR:mw:bh:bb:pwb:wc
