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1949, shall not be repealed;,.,prohibiting,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