Untitled Texas Attorney General Opinion ( 1973 )


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  •                                      April   2.7, 1973
    The Honorable   Lynn Cooksey                     Opinion   No.   H-   35
    Criminal District Attorney   “’
    Bowie County                                     Re:     Questions  concerning
    412 Texas Boulevard                                      salaries,  expenses and
    Texarkana,  Texas 75501       _                          removal of justices of
    the peace.
    Dear    Mr.    Cooksey:
    .Your      request   for our opinion poses   the following    questions:
    1. Is the dommissioners     Court of Bowie County
    limited by Article   3912i, Vernon’s   Annotated Civil
    Statutes,  in setting justices’ oi the peace salarks
    beginning January 1, 1973, or does Article      3912k,
    Vernon’s   Annotated Civil Statuter,   apply?
    2.  Does Article    3936f-1, Vernon’s  Annotated
    Civil Statutes,   limit the amount of fees that a
    ..     justice of the peace in Bowie County, paid on a .:+r
    fee basis,    can retain as his compensation   for the
    year of 1972, or does Article 3912k. Vernon’s Anno-
    tated Civil Statutes,    apply?
    3. scan the Commissioners      Court of Bowie County
    provide a secretary    for a justice of the peace.under
    the provisions  of Article   3912k, Vernon’s  Annotated
    Civil Statutes?
    4.  Can the Commissioners      Court take any affirm-
    ative action to remove a justice of the peace who has
    not satisfied the requirements    of Article 5972(b),
    Vernon’s    Annotated Civil Statutes,  or withhold pay-
    ment of his compensation    absent an adjudication    of
    incompetency    and removal by a district court   judge?
    p, 142
    .   I
    -.
    .            ,            *
    The Honorable       Lynn Cooksey,     page 2     (H-351
    The scope of Article    3912k, V. T. C. S. (Acts    1971,   62nd Leg. , Ch. 622,
    p.   2019) is set forth in § 1 which provides:
    “Except as otherkise     provided by th~is Act and
    subject to the limitations    of this Act, the
    commissioners      court,,of each county shall fix the
    amount of compensation,       office expense,  travel
    expense,   am all other allowances      for county and
    precinct officials   and employees    who are paid
    wholly from county funds, but in no event shall
    s~uch salaries  be set lower than they exist at the
    effective dates of this Act. ”
    The office of justice of the peace is a precinct office (Article 5,
    § 18, Texas Constitution),   and is therefore   covered by Article 3912k
    unless otherwise    excepted by g 7, subsection   4 which excepts:,
    ‘I. . . judges of all courts of record and all justices
    of the peace, and presiding judges of commissioners
    courts in counties having a population of 1, 700,000
    or more,   according  to the last preceding Federal
    census. ”
    .p
    Section   8 of Article   3912k provides:
    “To the extent that any local,  special or, general
    .
    law, including Acts of the 62nd Legislature,     Regular
    .
    Session,   1971, prescribes   the compensation,.  office
    expense,    travel expense,  or any other allowance for
    any official or employee    covered by this Act, that
    law is repealed. ”
    It is our opinion that the Commissioners      Court of Bowie County,
    in setting justices’ of the peace salaries   beginning January 1, 1973, is
    /                governed by the provisions    of Article  3912k, and not Article 3912i.
    As to your second question,   $9 of Article  3912k, Vernon’s  Annotated
    Civil Statutes, provides that the Act was effective January 1, 1972.    In
    conjunction with the discussion  above, it is therefore  our conclusion  that
    .’
    ..
    p. 143
    The Honorable      Lynn Cooksey.   page 3     (H-351
    Article   3912k. and not Article 3936f-1. determines the compensation
    of a justice of the peace in Bowie County during 1972 and thereafter.
    With reference     to your third question,  Article   3912k provides
    for the Commissioners        Court to establish the amount of office expense
    for justices    of the peace and qthersbut a secretary      is not an office
    expense.      Casey v. State, 
    289 S.W. 428
    (Tex. Civ. App.,       Texarkana,
    1926, err. ref. ). It provides for compensation,         but does not in itself
    authorize    the establishment    of any office or position.    However,
    Article    3902 does allow the Commissioners        Court to authorize an
    assistant.     Once such an assistant    has been authorized,     hia compen-
    sation should be, set in accordance      with Article 3912k. which covers
    “county and precinct officials and employees.        ‘I (Section 
    1, supra
    ).
    With reference    to removal of a justice of the peace,  Article 5,
    $ 24 of the Constitution   of the State of Texas provides as follows:
    “County judges,    county attorneys,    clerks of the
    District and County Courts, justices       of the pcet
    constables,   and other county officers,     may be rei
    moved by the Judges of the District Courts fo r
    incompetency,    official misconduct,     habitual drunk-
    enness,   or other causes defined by law, upon the
    cause therefor being set forth in writing and the :”
    finding of its truth by a jury. ”
    In Childress    County v. Sachse,     
    310 S.W.2d 414
    (Tex. Civ. App. , Amarillo,
    1958) writ ref.,    n. r. e., 
    312 S.W.2d 380
    (,Tex. 1958), the court held:
    “Where the State Constitution       prescribes   the
    manner of removing a public official,        neither, the
    Legislature,    Executive. officers   nor the Judiciary
    can act beyond the limitations      of the Constitution.
    Travelers’    Ins. Co. v. Marshall,      
    124 Tex. 45
    , 
    76 S.W.2d 1007
    , 
    96 A.L.R. 802
    .
    “In compliance  with the provisions  of the State
    Constitution,  however, the Texas Legislature   has
    passed laws’ for the removal of county officers   from
    p.   144
    The Honorable     Lynn Cooksey,     page 4   (H-35)
    office and has prescribed    the methods for removing
    them if and when desired.      Arts. 5970 - 5997, both
    inclusive.   Such a procedure    must be sworn to and
    conducted in the name of the State of Texas,     heard
    in the proper district court with the charges set
    forth in writing and thq, truth of such found by a
    jury. . . . It (310 S. W. 2d at 419)
    It is therefore  our opinion that a justice of the peace who has not .
    satisfied the requirements      of Article  5972(b),  Vernon’s  Annotated
    Civil Statutes,     may be removed only in accordance       with the applicable
    constitutional     and statutory provisions,    and that the Commissioners
    Court is without authority to take any affirmative        action to remove a
    justice of the peace or to withhold payment of his compensation,              .
    absent an adjudication      of incompetency    and removal by a distrSct        ’
    court judge.
    SUMMARY
    Article   3912k, V. T. C. S., effective as of January 1,
    1972, is the statute by which the compensation      and expenses
    of a justice of the peace of Bowie County and his clerks
    and assistants,    are to be determined    by the Commissioners
    Court,,which    has no authority to remove a justice 61 the
    peace from office.
    Very   truly yours,
    u     Attorney   General    of Texas
    Opinion   Committee
    p. 145
    

Document Info

Docket Number: H-35

Judges: John Hill

Filed Date: 7/2/1973

Precedential Status: Precedential

Modified Date: 2/18/2017