Untitled Texas Attorney General Opinion

Hon. John Dowdy Opinion No. V-l.314 District Attorney Athens, Texas Re: Compensation of steno- grapher or clerk to the District Attorney of the 3rd Judicial Dis- trict under the provi- sions of Senate Bill 212, Acts 52na Leg., 2;;. 1951, ch. 365, P* Dear Sir: . You request an opinion as to whether the provisions of Senate Bill 212, Acts 52nd Deg., R.S. 1951, ch. 355, p. 517 (codified as Article 326k-19, V.C.S.), rel.ative,tothe approval ana payment of a salary for a stenograper or clerk appointed under this statute are mandatory. You also ask what sal- ary this employee may receive under the stated facts, if these provisions are mandatory. Section 1 of Senate Bill 212 provides: "Any District Attorney in the State of Texas in a judicial district contain- ing two (2) or more counties is author- ized to employ a stenographer or clerk who shall receive a salary not to exceed Twenty-four Hundred ($2400.00) Dollars per annum, to be fixed by the District Attorney and approved by the combined majority of the Commissioners Courts of the counties composing his judicial dis- trict. The salary of such stenographer or clerk provided for in this Act shall be paid monthly by the Commissioners Court of each county composing the judi- cial district, pro-rated app0rti;natel.y to the population of the county. You state in your I.etterthat the commis- sioners' court of one of the counties comprising the Third Judicial District has declined to approve a salary for this employee. Hon. John Dowdy, Page 2 (V-1314) In Att'y Gen. Op. V-1201 (1951) this office construed the provisions of Senate Bill 444, Acts 52nd L-w., R.S. 1951, ch. 374, p. 640, to be mandatory. Sectionlofthat bill provides in part: "The District Attorney of the 100th Judicial District of Texas is hereby au- thorized to appoint a stenographer who shall receive a salary not to exceed Twenty-four Hundred ($2400.00) Dollars per annum. Said salary shall be fixed ancl determined by the District Attorney of said Judicial District, and the Dis- trict Attorney shall file with the Com- missioners Court of each county in said District a statement specifying the amount of salary to paid said steno- grapher. Said salary shall be paid monthly by the Commissioners Court of each county comprising said District in the manner and on the same pro-ratio basis as that contained in the order of the District Juage of such Districts for the payment of the salarK of the official shorthand reporter. It is stated in this opinion: "In 2 Sutherland, Statutory Con- struction (3rd Ed. 1943) 216, it is stated: "'Although in every case the leg- islative intent should control in deter- mining whether a statute or some of its provisions are mand~atorythere are, nevertheless, certain forms and certain types of statutes which generally are considered mandatory. Unless the con- text otherwise indicates the use of the word "shall" (except in its future tense) indicates a mandatory intent.' "In Elms v. Giles, 173 S.W.2d 264, 268 (Tex. Civ. App. 1943, error ref. 141 Tex. 446, 174 S.W.2a 588), the court, in construing an act to determine whether it was mandatory or permissive, stated: Hon. John Dowdy, Page 3 (V-1314) ,- ml .. . By the use of the word "shall" in each of the provisions above quoted, the Act makes it manda- tory that such notices be given. . . .t "The word 'shall' is used'in Sen- ate Bill 444 in each instance wherein the duties of the commissioners' courts are prescribed. In view of the fore- going it is our opinion that Senate Bill 444, Acts 52nd Deg., 1951, is man- datory in regard to the provisions re- lating to the duties of the commis- sioners ' courts involved." In Att'g Gen. Op. V-749 (1948) it was held that it was mandatory under Article XVI, Section 61 of the Constitution of Texas that all of the constables of this State be paid a reason- able salary. Although there were involved in Att'y Gen. Ops. V-749 and V-1201 different constitutional and statutory provisions than are involved in your request, it is our opinion that the principles of law announced in these opinions are applicable to Senate Bill 212. You are advised, therefore, that it is mandatory that the stenographer or clerk of the District Attorney of the Third Judicial Dis- trict, composed of Anderson, Henderson, and Houston Counties, be paid a reasonable salary. What con- stitutes a reasonable salary, however, % left to the sound discretion of the Commissioners' Courts." Att'y Gen. Op. V-749 (1948). SUMMARY Under the provisions of S.B. 212, Acts 52nd Deg., R.S. 1951, ch. 365, p. 617, it is mandatory that the steno- grapher or clerk of the District At- torney in a judicial district contain- ing two or more counties be paid a reasonable salary not to exceed $2400.00 Hon. John Dowdy, Page 4 (V-1314) -_ per annum. The question of what con- stitutes a reasonable salary is left to the sound discretion of,the Com- missioners'Court5. Att'y Gen. Ops. V-1201 (1951) and V-749 (1948). APPROVED: Yours very truly, J. C. Davis, Jr. PRICE DAMIEL County Affairs Division Attorney General Jesse P. Luton, Jr. Reviewing Assistant Everett Hutchinson John Reeves Executive Assistant Assistant JR:awo -.