OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
Honorable C. E. Weaver
County Auditor
Nacogdoches County
Nacogdoches, Texas
Dear Sir:
ty clerk of back
ment on the above
r as follows:
ssioners' court be
taxpayer citizen and payment ordered withheld?
"The Officers Salary Law stipulates that sal-
aries of county officers are based on the amount
earned by their offices during the fiscal year of
~1935. In t,hecase referred to in the question
submitted, the earnings of the County Clerk of
.- Honorable C. E. Weaver, page 2
Nacogdoches County, proven to the satisfaction
of the trd.alcourt and upheld by the court of
civil appeals, Beaumont, was set .at $3,286.16.
The law suit of F. C. Winder, above referred
to, was occasioned by the Commissioners Court
setting the salary of F. C. Winder, duly elect-
ed county clerk, at a lower sum, namely, $3;000
perannum. Judgment was given for $572.32, rep-
resenting unpaid back salary for two years,
namely, 1937 and 1938. This case ended in a
compromise with ex-county clerk Winder accept-
ing a settlement of $400 dollars.
*With the precedent established with the
Winder case; claims will be presented in which
the Members of the Commissioners Court, even
though having set the,salary of the county clerk
at the lower salary (of $3,000) than that pre-
scribed by the officers salary law and the figure
established in the trial court by means of the
Winder Case, will reverse themselves by approv-
ing with their signatures in their official capacities
the payment of the difference between the set
salary and the salary allowed by the law and the
figure set by the trial court, as above indioated.
With this in mind, with,a.,majority.,of~
the oommis-
sioners court signing the claim for the back salary
herein described, what is the liability of each mem-
ber of the court so signing to either himself or his
bondsmen, if such payment is questioned through
legal process by a taxpaying citizen and the pay-
ment ordered withheld?
"The situation is exactly this: Three mem-
bers of the commissioners court, who participated
in setting the salary of the county clerk at
$3,000 now wish to pay him (thenpresent county
clerk) on the basis of $3,286.16 per annum, as per
judgement of the courts, herein before mentioned,
but in doing so do not want either their bondsmen
or themselves to be liable for any sums of money
caused by the payment of this back salary."
Honorable C. X. Weaver, Page 3
As we understand the facts presented in your in-
quiry, the county clerk of Nacogdoches County earned the
sum of $3,286.16 in the year 1935. Also, that the officers
salary law is applicable to Nacogdoches County, and that
in 1937 and 1938, the Commissioners* Court fixed the salary
of the county clerk at the sum of $3,000.00 per annum.
Article 3912e, Section 13, Vernon's Annotated Civil Stat-
* '\ utes, fixes the salary of county clerks in the class of
counties in which Nacogdoches County fell, "at not less
than the total sum earned by him 'In his official capacity
for the fiscal year 1935, and not more than the maximum
amount allowed such officer under laws existing on August
24, 1935." The ex-county clerk sued Naoogdoches County
to recover a balance of salary claimed to be due him as
county clerk of said county for theyears, 1937 and 1938,
and judgment was rendered for the ex-county clerk in the
sum of $572.32, and the county appealed from this judgment,
and said judgment as rendered by the trial court was af-
firmed by the Beaumont Court of Civil Appeals, 140 S. W.
(2d) 972.
:- It further appears from the facts stated in your
inquiry that the Commissioners' Court has not fixed the
salary of the county clerk in complaince with Section 13,
Article 3912e, Vernon's Annotate~dCivil Statutes, butsaid
salary is still qb3,000.00per'year, a'sfixed by the Commis-
sioners* Court, and as the amount of salary for the county
clerk for the years 1937 and 1938 has been adjudicated by
the courts, it is apparent that your question has reference
to the salary of the present county clerk for the year 1939
and the year 1940,
We quote from the case of Nacogdoches county v.
Winder, 140 S. W. (2d) 972, as follows:
"ihie
think the order fixing appellee's
salary made at the regular term on January
13, 1936, was in accordance with the law,
and that the amount then fixed as the annual
salary of appellee, $3,286.16, under the facts
and the law was proper, and is controlling
here. Article 3912e, section 13, Vernon's
AM. Civ. St., fixes the salary of County
Clerks in the class of counties in which NaCOg-
doches fell, at not less than the total sum
Honorable C. E. weaver, Page 4
earned by him in his official capacity for
the fiscal year 1935 and not more than the
maximum amount allowed such officer under
laws existing on August 24, 1935. The legis-
lature having prescribed the minimum amount
of salary (the official earnings in 1935)
and that being shown to have been $3,286.16,
the commissioners' court did not have the
authority to ignore this statutory provision
of the minimum salary and fix the salary at
$3,000. The provisions of the statute au-
thorizing the commissioners' court to fix
the salary at any sum not less than a certain
minimum, and not more that a certain maximum,
are mandatory, and could not be ignored by
the members of the court at their discsetion.
The order fixing appellee's salary at .$S,OOO
was without authority, and so void.
". . .
We overrule appellant's assignment that
the court erred in not sustaining its plea in
abatement.~ The insistence is that the oommis-
sioners' Court in January, 1937, and in January,
1938, entered upon~its'minutes'an'order fixing
appellee's salary for said years at #.3,000.per
year, from which orders appellee did not appeal,
but accepted the monthly warrants issued to him
for each month of said years same being for one-
twelfth of $3,000; that said orders became final
judgments of the court, and so was conclusive of
appellee's right to maintain this suit. This
dontention is not sound. The order fixing ap-
pellee's salary at $3,000.00, being a sum less
than the minimum fixed by law, Article 3912e,
Section 13, Vernon's Ann. Civ. St., the order
was void, and being so could be attacked in any
court having jurisdiction of-the matter involved.
" . . ."
In the case of Commissioners~ Court of Nacogdoches
County v. Winder, et al, 113 S. W. (2d) 277, the court holds
in effect that a judgment directing the Co&nissioners~ Court
r*<'\
‘
-
Honorable C. E. Weaver, Page 5
to fix salaries of county officers for 1937 at specified sums
became mOOt when a prior Order Of the COID.Ii.SSiOn8rS'
Court
fixing the salaries at lower amounts expire at th8 end of
1937, snd the Commissioners' Court could not enter an order
fixing the salaries for the year 1937 in the year 1938. Also,
where the Commissioners' Court entered an order in 1937 fix-
ing the salaries for county officers for the year 1937,.to be
paid in equal monthly installments! the court could not enter
an order in 1938, fixing the salaries for 1937;payable in
monthly installments.
Article 2340, Vernon's Annotated Civil Statutes,
reads as follows:
"BefOr8 entering upon the duties of their
office, the county judge and each commissioner
shall take the official oath, and shall also
take a written oath that he will not be direct-
ly or indirectly interested in any contract
with, or claim against, the county in which he
resides, except such.warrsnts as may issue to
P. him as f88S Of Office. Each commissioner shall
execute a bond to be approved by the county
judge in the sum of three thousand dollars, pay-
able to the county treasurer, conditioned for,the
faithful ,performanceof'the dut&es~'~'of
h~isoffice,
that he will pay over to his county all moneys
illegally paid to him out of county funds, as
voluntary payments or otherwise, and that he
will not vote or give his consent to pay out
county funds except for lawful purposes."
Generally, there can be no liability on the part
of the sureties on an officer's bond without default on
the part of the principal in regard to the duties which
they have contracted that he &all discharge. To render
them liable, the act complained of must be a violation of
the conditions of the bona. Their liability is striotissiai
juris; it cannot be extended by implication or construc-
tion beyond the terms of their contract; and they must be
given the benefit of any doubt as to the meaning of the
terms of the bond. Texas Jurisprudence, Vol. 34, p. 570;
,P, _
Honorable C. E. Weaver, Page 6
.
Affierican
Surety Company v. Hidalgo County, 283 S. W. 267;
Brown v. Sneed, 14 S. W. 248.
In view of the foregoing authorities and the facts
stated in your inquiry, it is the opinion of this depart-
ment that $3,226.16 is the rainimumsalary of the county
clerk of Nacogdoches County, and that the Commissioners~
court has no authority to fix the salary of said clerk at
any sum below that amount. It is our further opinion that
it is the duty of the Commissioners' Court to pay the
county clerk the difference between the salary received
and the minimunito which he is legally entitled, and that
the members of the Commissioners' Court or their bondsmen
would not be liable for such payment if questioned through
legal proceedings.
Trusting that the foregoing fully answers your
inquiry, we are
Yours very truly
ATTORNEY GENERAL OF TEXAS
'By"($)Ardell Wiiiiams
Ardell Williams
Assistant
‘i, APPROVED SEP 10, 1940
(3) Gerald C. Mann
ATTORNEY GENERAL OF TEXAS
APPROVED
Opinion Committee
By BWB, Chairman