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OFFICE OF THE Al-kORNtiYGENERAL OF TEXAS
AUSTIN
Q-C.- _’
A--
nonorsble Keeldon3, Davis
county Attorliey
Aust.inCounty
IjelLville,Texas
zqar sir:
,
correctly advise
orders auly mite soa entered of recwa at
its first reg.&r ne9tinc in Janunry or
each cult-ndaryem since the effective data
Gi:.4xtic1o391% or the i;cvisQdcivil stat-
utes of Tom:;18
deierninsd that thu cwnty of-
fioors of ;,ustinCounty shsll be 003;.enmtea
on the b"sIs of fees enrnd by thornin the
..
c--
, 328
Szlorable\FolaonB. Davis, Page 2
perfomance of their official duties. On
April 22, 1939, e vacancy occurred in the
ofrice of County Attorney of Austin County.
On said date, April 22, 1939, an8 during
tho time the vacancy existed end before the
appointmentto fill the vacancy wes made,
the Commissioners'Court by en order duly
made and entered of record reduced the ex-
officio compensationto bo paid the County
Attorney of Austin County from and after
said date from $1800.00 per year, or $150.00
I@; ;;;t";,to 31200.00 per year, or $100.00
Ths ex-offioio compensation of .
, BlOOO.OO'~r
* year had been fixed et the
first regular msetin~ of the Comisaioners’
court in *IDmary, 1939. On April 25, 1939,
three days after such order reducing the ex-
,officiooompensationwas amae end entered of
record, the Commissioners*Court made the
appointmentof a-County Attorney to fill'the
vacancy,and the person’ 80 appointed accepted
ouch eppointmcntand qualified es suoh officer
with full knowledge of the action of the Com-
mlosioners'Court in reducing the ex-officio
compensationto be paid such offioer, and in
fact suoh appointee before accepting such
appointmentand before qualifying for such
office oxpressea to the Commissioners*Gcurt
his satisfacticnand his willingness to
serveas County Attorney at such reduced ex-
officio coaponsation. He hcs now, howevsr,
presentedto the Commissioners*C0urt his
claimfor additional ex-officio comyensation
for the period from tho date of his quualifi-
Cetion to the end of the year 1939 at the
rate of $50.00 per month, that being the
amount the ox-officio oomgensaticnwos re-
duced by the order of the Court made and
ontorod on April 22, 1939. The exact ques-
tion thus presented is whether the Corzi~fts-
slonsrsrCourt cl"Austin County unacr the
faots related ooul,fiat a m::otingother than
the first regular mseting in January of each
Year enter ,anorder reducing or deorsaslng the
ex-officiocompensationto be paid the County
Attorney for future sorvicos.
BonorableiY&lon 1).Eavi~, Rage 3
"In briefing the question 1 have come
to the oonclusion that the provisions of
Article 3912e of the Revised Civil Statutes
relating to the tines and the amounts and
the manner of fixing the salaries of county
officers, and the recent cases together vtith
the opinions handed down by your offike con-
struing the provisions of this article, have
no application to the question presented for
the reason that Austin County is coszpensating
its officers on a fee basis and not on a
'salarybasis, Any authority the Corn&saioners*
Court has to allow, ohange or modify conpensa-
tion for ex-officio services must be derived
from kticle 3895 of the i?evlsed Civil Ctotutoa
of Texas and the constructiongiven said ar-
tiole by the oourts of our State. In my opinion
the case of ColllngaworthCounty vs. Xyers, 35
s. W. 414, definitely settles the issue and cor-
rectly answers the question in the affirmative.
Ry conolusion that the CGurt could on April 22,
1939, end as for that netter at any time, lava-
fully enter the order ohanging or reducing the
ex-ofSici0 congensationof the County Attorney,
for future services is Purthor fortified by the
statementsfound under the title 'Fublic Of-
Hoers* in 3-i Taxes Jurisprudence,tee. 107, on
page 511, and in the saiaevoluroeand under the
same title on pages 526-329, Sec..llS, end the
authorities there 0itea.n
We have oarefully considered your letter, together
*lth the statutes and authorities mentioned therein, and agree
Eith the cmcluelon reaohod bjryou,
Article 3693, VernGn'a .AnnotatedCivil Statutes,
rd.5 as f0110~s:
*The Co!r&saiunerslCourt is hereby
.debarredIrGm nllouing compensationfor ex-
off1010 services to county officials when the
ccnpensationma excess fee3 vM.ch Lhey are
allowed to rctsin shall reach the marimur~
provided for.in this chapter. In cases -Jihsre
the oonpcnsationand exce:~sfoes which the
officers are allozed to retain shall not
reach the nsximm provided for in this chapter,
Court shzll allovrcGm:ensa-~
the ~bsxa3.ssioner.s~
tion for ox officio sGrvicezBwhen, in their
gonorab16
-WeldonB. aavis, FaCe 4
Judgment,,such cocpensation is ns&,+sary,
prodded, such compensationfor ex officio
services allo;iedshall not increase the
compensationof the offioial beyond the
maxlnum of compen6ation and excess fees
alloviodto be retained,by bin under this
chapter. Provided, however, the ex of-
fioio herein authorized shall be alloned
only after an opportunity for a publid
hearing and only upon the affirmative
vote of at least three megbars of the
~ommissioners~Court."
We quote from Texas Turisprudence,Vol. S?, P. 527,
, 88 fol.loss:
** * * the coCnissioners*oourt has
powor to fix the co3lpensationof an officer,
it nay change the amount at any time, oven
during his term of office. Thus its orders
fixing the compensation of officers for ex-
officio services are not contracts or juag-
manta against the ccunty, and may be ohangcd,
modified, repealed or revoked at any tine
before the nonoy $5~ tczually been paid Out
to the officer. .
we quote from the ca6e of CollinysworthCounty v.
Lydrs,35 s. iv.414, as follows:
r* + * t:eare of opinion that, in
auditing ani fixing the onounto to be paid
6uch officers for ex offioio scrvicas, the
00~ii3sionersfcourt acts in a legislative
capccity Roro than in a judicial, and that
such orders are not judE)I;lents
against the
Ccunty, and that, whenever the cozzissionera
Oonclude, for any reason, that such allowances
are too great or too ~~11, they have the
Sight and power, at any time before the
xeoneyis actwlly paid out to the officer,
to change, modify, or even sntiroly repeal
or revokes the order. * r,*.n
In view of tho for'ei;OIng
authorities, the above stated
W6tion is answsred in the affirmatlvo.
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33-J
I
gonorableC6ldon B, Dovia,.Fage 5
Trusting that the foregoing fully answsrs your
lncplry,rreare
I
rrdell ‘XilllnmS
Assi6tant
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