April 2.7, 1973
The Honorable Lynn Cooksey Opinion No. H- 35
Criminal District Attorney “’
Bowie County Re: Questions concerning
412 Texas Boulevard salaries, expenses and
Texarkana, Texas 75501 _ removal of justices of
the peace.
Dear Mr. Cooksey:
.Your request for our opinion poses the following questions:
1. Is the dommissioners Court of Bowie County
limited by Article 3912i, Vernon’s Annotated Civil
Statutes, in setting justices’ oi the peace salarks
beginning January 1, 1973, or does Article 3912k,
Vernon’s Annotated Civil Statuter, apply?
2. Does Article 3936f-1, Vernon’s Annotated
Civil Statutes, limit the amount of fees that a
.. justice of the peace in Bowie County, paid on a .:+r
fee basis, can retain as his compensation for the
year of 1972, or does Article 3912k. Vernon’s Anno-
tated Civil Statutes, apply?
3. scan the Commissioners Court of Bowie County
provide a secretary for a justice of the peace.under
the provisions of Article 3912k, Vernon’s Annotated
Civil Statutes?
4. Can the Commissioners Court take any affirm-
ative action to remove a justice of the peace who has
not satisfied the requirements of Article 5972(b),
Vernon’s Annotated Civil Statutes, or withhold pay-
ment of his compensation absent an adjudication of
incompetency and removal by a district court judge?
p, 142
. I
-.
. , *
The Honorable Lynn Cooksey, page 2 (H-351
The scope of Article 3912k, V. T. C. S. (Acts 1971, 62nd Leg. , Ch. 622,
p. 2019) is set forth in § 1 which provides:
“Except as otherkise provided by th~is Act and
subject to the limitations of this Act, the
commissioners court,,of each county shall fix the
amount of compensation, office expense, travel
expense, am all other allowances for county and
precinct officials and employees who are paid
wholly from county funds, but in no event shall
s~uch salaries be set lower than they exist at the
effective dates of this Act. ”
The office of justice of the peace is a precinct office (Article 5,
§ 18, Texas Constitution), and is therefore covered by Article 3912k
unless otherwise excepted by g 7, subsection 4 which excepts:,
‘I. . . judges of all courts of record and all justices
of the peace, and presiding judges of commissioners
courts in counties having a population of 1, 700,000
or more, according to the last preceding Federal
census. ”
.p
Section 8 of Article 3912k provides:
“To the extent that any local, special or, general
.
law, including Acts of the 62nd Legislature, Regular
.
Session, 1971, prescribes the compensation,. office
expense, travel expense, or any other allowance for
any official or employee covered by this Act, that
law is repealed. ”
It is our opinion that the Commissioners Court of Bowie County,
in setting justices’ of the peace salaries beginning January 1, 1973, is
/ governed by the provisions of Article 3912k, and not Article 3912i.
As to your second question, $9 of Article 3912k, Vernon’s Annotated
Civil Statutes, provides that the Act was effective January 1, 1972. In
conjunction with the discussion above, it is therefore our conclusion that
.’
..
p. 143
The Honorable Lynn Cooksey. page 3 (H-351
Article 3912k. and not Article 3936f-1. determines the compensation
of a justice of the peace in Bowie County during 1972 and thereafter.
With reference to your third question, Article 3912k provides
for the Commissioners Court to establish the amount of office expense
for justices of the peace and qthersbut a secretary is not an office
expense. Casey v. State, 289 S. W. 428 (Tex. Civ. App., Texarkana,
1926, err. ref. ). It provides for compensation, but does not in itself
authorize the establishment of any office or position. However,
Article 3902 does allow the Commissioners Court to authorize an
assistant. Once such an assistant has been authorized, hia compen-
sation should be, set in accordance with Article 3912k. which covers
“county and precinct officials and employees. ‘I (Section 1, supra).
With reference to removal of a justice of the peace, Article 5,
$ 24 of the Constitution of the State of Texas provides as follows:
“County judges, county attorneys, clerks of the
District and County Courts, justices of the pcet
constables, and other county officers, may be rei
moved by the Judges of the District Courts fo r
incompetency, official misconduct, habitual drunk-
enness, or other causes defined by law, upon the
cause therefor being set forth in writing and the :”
finding of its truth by a jury. ”
In Childress County v. Sachse, 310 S. W. 2d 414 (Tex. Civ. App. , Amarillo,
1958) writ ref., n. r. e., 312 S. W. 2d 380 (,Tex. 1958), the court held:
“Where the State Constitution prescribes the
manner of removing a public official, neither, the
Legislature, Executive. officers nor the Judiciary
can act beyond the limitations of the Constitution.
Travelers’ Ins. Co. v. Marshall, 124 Tex. 45, 76
S.W.2d 1007, 96 A.L.R. 802.
“In compliance with the provisions of the State
Constitution, however, the Texas Legislature has
passed laws’ for the removal of county officers from
p. 144
The Honorable Lynn Cooksey, page 4 (H-35)
office and has prescribed the methods for removing
them if and when desired. Arts. 5970 - 5997, both
inclusive. Such a procedure must be sworn to and
conducted in the name of the State of Texas, heard
in the proper district court with the charges set
forth in writing and thq, truth of such found by a
jury. . . . It (310 S. W. 2d at 419)
It is therefore our opinion that a justice of the peace who has not .
satisfied the requirements of Article 5972(b), Vernon’s Annotated
Civil Statutes, may be removed only in accordance with the applicable
constitutional and statutory provisions, and that the Commissioners
Court is without authority to take any affirmative action to remove a
justice of the peace or to withhold payment of his compensation, .
absent an adjudication of incompetency and removal by a distrSct ’
court judge.
SUMMARY
Article 3912k, V. T. C. S., effective as of January 1,
1972, is the statute by which the compensation and expenses
of a justice of the peace of Bowie County and his clerks
and assistants, are to be determined by the Commissioners
Court,,which has no authority to remove a justice 61 the
peace from office.
Very truly yours,
u Attorney General of Texas
Opinion Committee
p. 145