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Hon. Fred L. Blundell OpinionNo. O-4592
DistrictAttorney Re: Under the facts submittedcan the commis-
Lockhart,Texas sionerscourt place a constableof one precinct
on a salarybasis without treatingall other
constablesof otherprecinctsin the county on
Dear Sir: a similarbasis,and anotherquestion?
Your letter of Nay 12, 1942, requestingthe opinionof this de-
partment,reads as follows:
"Becauseof the urgencyof nrovidinga way of assisting
in law enforcementat Luling,theCommissioners'Courtof this
countywould appreciateas speedya reply as possibleto the
questionsinvolvedin the attachedstatementof the subject
matter.
"We will appreciateany informationon the matter that
you can give so that the -courtcan act in the matter, if there
is anythingthey can do."
::equote the statementaccompar@ng your inquiry,which is as
follows:
“IN Ia: Constable'sSalary or Pay of Prec. Two, Caldwell
Co. Texas.
"A history of the point inquiredabout arises out of the
fact that the presentConstableof said precinctis a valuable
law enforcementofficerresidingwithin said precinctat Luling,
Texas, in which city one deputysheriffresides. He enforces
the law well and the people of the precinctand city want to
keep him, but the fees of his office are insufficientfor his
maintenanceand a fair possibilityezdstsof his resigningun-
less somethingcan be done.
"Art. 3912e (Sec. 17) providesthat constable:remain on the
fee basis unless the commissionerscourt determinesotherwise;
all constablesof this county are now on a fee basis; none of
the Justices of the Peace or Constablesfees in this county go
into the Officers'Salary Fund as providedin said article;the
people of Luling want for their said constablesome augmentation
of his fees by act of the Commissioners'Court of the county if
this is possible.
,-
Hon. Fred L. Blundell,page 2 (O-&92)
"QuestionOne: Under the above facts can the Commissioners'
Court place said constableof said PrecinctTwo on a salary
basis without at the same time treatingall other constables
of the other precinctswithin the county on a similarbasis?
"QuestionTwo: If the above questionis answeredin the
affirmative,could said Commissioners' Court pay in part or
in whole said constable'ssalary out of the GeneralFunds of
the County,or out of any particularfund, such as the Road &
Bridge Fund of said precinct,or the area of the countywithin
said precinct? In clarificationof this last question,I will
explainthat the area of Justice PrecinctNo. Two has the
same limits as said Road & BridgeFund No. 2 and of Commission-
ers' PrecinctNo. Two of said county. The people of said area
and.citysubmit the questionthat as itis their taxes that
make up the funds of said Fund No, 2 and as they need this pro-
tectionfrom said constablethat they would not objectto at
least part of said constable'ssalarybeing paid out of said
fund if possible.
'As said constableis contemplatingtaking other employment,
more compensative, unless somethingis or can be done, it is
urged that a reply to the above be given as soon as possible,
as they thirk law enforcementin their vicinitywill suffer un-
less a way can be found to relievethe presentsituation."
This departmenthas heretoforeruled on severalquestionssimilar
to the questionspresentedin your inquiry. In our opinionNo. O-516 (con-
ferenceopinionNo. 30&), this departmentheld:
"The consnissioners
court is without authorityto place
one
precinctofficerupon a salary basis and leave other offi-
cers upon a fee basis. The systemmust be uniformand the
commissionerscourt must place all of the precinctofficers
upon a salarybasis or leave all upon a fee basis-underthe
salary law.
"Wherethe commissioners court places the precinctoffi-
cers of the countyupon a salarybasis as outlinad in the
officerssalarylaw, the commissioners court has no authority
to set a precinctofficerssalary at less than the total sum
earned as compensationby him in his officialcapacityfor the
fiscalyear 1935, and that the commissioners court has no au-
thorityto set a precinctofficerssalary at more than the
maximumamount allowedsuch officerunder laws existingAugust
2h, 1935."
In opinionNo. O-2421 this departmentheld that:
. ’
Hon. Fred L. Blundell,page 3 (04592)
"It is the opinionof this departmentthat it is not
possibleto compensatea justiceof the peace on a salary
basis of countieshaving a populationof lessthan20,000
Ttiabitantsaccordingto the last preceding federalcensus
unless all the precinct officersof said county are compen-
sated on a salarybasis, and the commissionerscourt of said
countyhas passed an order providingfor the compensationof
all precinctofficersof the county on a salarybasis at the
first regularmeeting in January of the calendaryear in
question."
Our opinionNo. O-915 concernsa similarquestion. We enclose
copies of all of the above mentionedopinionsfor your convenience.
In view of the opinionsmentionedabove and the authorities
cited therein,your first questionabove shouldbe answeredin the nega-
tive and is so answered.
As we have answeredyour first questionin the negative,we do
not think that your second questionrequiresany answer. Therefore,we
do not deem it necessaryto discussor pass upon said question.
Trustingthat the foregoing fully answersyour inquiry,we are
Yours very truly
ATTORNEYGENERALOF TEXAS
By /s/ Ardell Williams
Ardell Williams,Assistant
APPROVEDMAY 19, 19112
/s/ Gerald C. Mann
ATTGRNEYGENDAL OF TEXAS
APPROVFLU:
OPINIONCOMMITTEE
BY: BWB, CHAWN
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