dissenting.
I respectfully dissent. The majority opinion treats this case as if the appellate court were reviewing a writ of mandamus decision by the district court and not merely an appeal from a supervisory review order. Actually the writ of mandamus action in the district court was in 1981. That case was resolved by the Supreme Court in Vondy v. The Commissioners Court of Uvalde County, 620 S.W.2d 104 (Tex.1981). The Supreme Court directed the district court to issue the writ of mandamus, ordering the Commissioners Court to set a reasonable salary pursuant to constitutional requirements. The writ was issued. The Commissioners Court did set the constable’s salary at $40.00 per month at that time. They filed their return on the writ showing their compliance.
When the salary was set, the constable filed his motion in district court objecting to the discharge of the respondents on the 1981 writ, along with his motion for contempt directed against the Commissioners Court. The question before the district court in its review was whether or not the Commissioners Court abused its discretion in setting the salary at $40.00 per month. The former constable Vondy had the burden to show there was an abuse of discretion.
The record contains the findings upon which the Commissioners Court based its salary determination:
1. Before January 17, 1979, there had never been a constable, Precinct 6, in Uvalde County, nor was there any expressed need for the office.
2. There was no money in the budget for the office.
3. The sheriff and police departments provided adequate peace officer protection.
4. The sheriff’s office served all process for the justice of the peace offices in the county without difficulty. They continued to do so after the constable of Precinct 6 was elected.
5. There was no need for the office in Precinct 6 and it was a financial burden.
6. Vondy knew there was no salary set for the office when he ran for the position.
The record reflects that Vondy was in office for two years, that he worked in his own security business fulltime, and that Precinct 6 is within the city and thus all police protection is by the Uvalde Police Department. It is obvious that other officers did the work and that a constable in Precinct 6 was a redundancy.
Under the circumstances of this case, the Commissioners Court of Uvalde County should be permitted to exercise their sound discretion in setting a reasonable salary based on their knowledge of the county’s *424condition and duties and needs of its officials. The trial court, after hearing the evidence agreed this amount was reasonable. There is no basis for this court to hold the amount was unreasonable as a matter of law.
Bomer v. Ector County Commissioners Court, 676 S.W.2d 662 (Tex.App.-El Paso 1984, writ ref’d n.r.e.), decided after Von-dy, supra, presents facts closely analogous to the present case. The constables there sought to have that Commissioners Court set a reasonable salary also. The court of appeals affirmed the trial court’s denial of the writ of mandamus. In that case the salary which the petitioners believed was unreasonable was $20.00 per month.
TEX.REV.CIV.STAT.ANN. art. 3912i (Vernon 1966) provides in part:
Sec. 9. The Commissioners Court shall not be required to fix the salaries in all precincts at equal amounts, but shall have discretion to determine the amount of salaries to be paid each ... Constable in the several precincts on an individual basis without regard to the salaries paid in other precincts or to other officials. In arriving at the compensation to be paid the officials governed by the provisions of this Act the Commissioners Courts shall consider the financial condition of their respective counties and the duties and needs of their officials ...
******
Since there was no showing of an abuse of discretion, the judgment should be affirmed.
ON APPELLEES’ MOTION FOR REHEARING
As noted in our original opinion in this case, at the hearing on Vondy’s objections to the proposed order discharging the Commissioners Court, members of the Commissioners Court testified that $40.00 per month was a reasonable salary “under the circumstances” because: (1) there was lack of funds to pay Vondy; (2) Vondy knew when he sought and accepted the job that there was no salary; (3) the Precinct 6 area had adequate law enforcement protection so there was no need for Vondy’s services; and (4) Vondy’s concurrent involvement in a private security business presented a conflict of interest in having Vondy serve as constable.
Again we point out that these reasons were expressly considered and rejected in Vondy I, 620 S.W.2d at 108. In Vondy I the Supreme Court stated:
[I]t is mandatory that the commissioners court compensate constables on a salary basis.
The commissioners court argues that this constitutional provision only requires the court to compensate these officials on a salary basis if they are compensated at all.... Additionally, it urges that since no other statute mandates a minimum salary, the commissioners court has discretion to set no salary at all.
The commissioners court next argues that since Vondy is also a Class B Security Service Contractor and operates the business for profit, the trial court did not abuse its discretion in denying the mandamus. It argues that a person cannot accept a public office knowing the amount of compensation and then claim more is due.... Also the commissioners court contends that there was no money budgeted or available with which to pay Vondy at the time of his request.
******
We do not find the commissioners courts’ arguments persuasive. The constitutional provision clearly mandates that constables receive a salary.... Furthermore, we conclude that the commissioners court must set a reasonable salary. While a reasonable salary would be a determination for the commissioners court, Vondy is entitled to be compensated by a reasonable salary.
Clearly, the Supreme Court rejected the same circumstances or factors again considered by the Commissioners Court in determining what a reasonable salary would be. Although the Supreme Court did not hold or say that these circumstances could *425not be considered by the Commissioners Court in fixing a reasonable salary for Vondy, in finding the factors to be unpersuasive the court necessarily found that these factors were alone not an adequate basis for determination of a reasonable salary. Therefore, since the Commissioners Court considered no other factors in determining what a reasonable salary would be, consideration of those same factors must once again be unpersuasive and irrelevant.
The appellees’ contention in its Motion for Rehearing that “uncorroborated” testimony by Vondy concerning the amount of time he spent in performing the duties of constable “is not only that of a party and interested witness but, as well, is a pure guess unsupported by any record, totally lacking in corroboration and which the Commissioners Court could not dispute,” presumes that Vondy had the burden of proving at the hearing what a reasonable salary would be. That in fact is not where the burden should have been placed. Rather, the Commissioners Court, in seeking discharge from the writ of mandamus ordering it to set a reasonable salary, had the burden of establishing that a reasonable salary had been set before being discharged.
Again, since the Commissioners Court considered no circumstances or factors other than those previously rejected as unpersuasive in Vondy l, the Commissioners Court has failed to meet its burden of entitlement to discharge from the writ of mandamus.
Moreover, testimony was introduced at the hearing concerning the salaries paid to other constables in Uvalde County. These constables, Arthur Harwell Davis, Jr., and Jack Bain Preston, Jr., were paid in excess of $1,000.00 per month plus expenses and other benefits. As we noted in our original opinion, TEX.REV.CIV.STAT.ANN. art. 3912i §§ 1 & 2 (Vernon 1966) provides that the salary of constables in counties with populations the size of Uvalde County are not to exceed $5,000 or $6,000 per annum. Thus, the other two constables of Uvalde County would have been making more than twice the maximum rate of salary provided by statute. Not only do we fail to see how Vondy’s salary at $40.00 per month could be reasonable in light of the other constables being paid in excess of $1,000.00 per month; such also conclusively establishes that the Commissioners Court acted arbitrarily and capriciously in determining Vondy’s salary. Furthermore, if the county lacked funds to pay Vondy, as asserted by the Commissioners Court, we fail to see how the Commissioners Court could justify payment to the other constables of more than double the statutory máximums.
Again, we reiterate that Commissioners Court acted arbitrarily and capriciously in failing to provide Vondy with a reasonable salary.
The motion for rehearing is denied.