,
‘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,
-2347-
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
-2348-
,
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