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
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