Untitled Texas Attorney General Opinion ( 1987 )

!
THE ATTORNEY GENERAL
OF TEXAS
Honorable Joe L. Price Opinion No. JM-770
District Attorney
P. 0. Box 508 Re: Authority of a commissioners
Groveton, Texas 75845 court to place restrictions upon
payment of a constable's salary
and office expenses
Dear Mr. Price:
You ask several questions about the county commissioners court's
authority and responsibility with regard to fixing the salary for and
providing for the expenses of constables. You ask:
1. Whether the commissioners court may impose
a condition upon a duly elected constable for
receiving a salary, such as requiring said
official to get a petition signed by a specified
number of voters in the precinct supporting such
salary.
2. Whether the commissioners court may refuse
to furnish an office, secretary. and equipment
necessary for the operation of the office (or com-
pensation in lieu thereof~).
3. Whether all constables' salaries in a
county must be equal, or whether such salaries may
vary, depending upon case load, population-of the
precinct, geographical area, etc.
4. What does the phrase "reasonable salary"
mean?
As will be shown in the discussion to follow, the commissioners court
must provide constables with a "reasonable" salary and "reasonable"
expenses.
The Texas Constitution mandates that county commissioners courts
compensate constables on a salary basis. Tex. -Const. art. XVI, §61.
In Vondy v. CossaissionersCourt of Uvalde County. 620 S.W.2d 104. 108
P
(Tex. 1981). (hereinafter Vondy I) the Texas Supreme Court rejected
the argument that this provision requires a salary for constables in
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Honorable Joe L. Price - Page 2 (JM-770)
lieu of fees only when the commissioners court decides to compensate
the constables. The court held that the constitution mandates
providing constables with compensation and that the compensation must
take the form of a "reasonable" salary. 620 S.W.2d at 108-09. This
basic rule has been applied by several courts of appeal. See Vondy v.
Commissioners Court of Uvalde County, 714 S.W.2d 417 (Texxpp. - San
Antonio 1986, writ ref'd n.r.e.) (hereinafter Vondy II); Commissioners
Court of Houston County v. Rodgers, 691 S.W.2d 753 (Tex. App. - Tyler
1985, no writ); cf. Bomer v. Ector County Commissioners Court, 676
S.W.2d 662 (Tex. AK - El Paso 1984, writ ref'd n.r.e.).
Additionally, section 1 of article 3912k.l V.T.C.S., provides:
Except as otherwise provided by this 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, and all other allowances for county and
precinct officials and employees who are paid
wholly from county funds, but in no event shall
such salaries be set lower than they exist at the
effective date of this Act. (Emphasis added).
In Commissioners Court ~of Houston County v. Rodgers, 691 S.W.2d at
756, the court construed this section to require the provision of
reasonable -expenses for constables. With this holding, the court
indicated by implication that section 1 also requires reasonable
salaries for constables.
Your first question is whether the commissioners court may
require a constable to submit a petition, signed by a specified number
of voters in the precinct supporting a salary, as a prerequisite to
receiving the salary. Language in Vondy v. Commissioners Court of
Uvalde County. 714 S.W.2d 417 (Vondy II) is helpful in resolving your
question. In vondy 11 the court stated, "The commissioners court
cannot attempt to restrict or abolish a constitutionally established
office by refusing to reasonably compensate the holder of such
office." 714 S.W.2d at 422. Similar considerations apply to the case
at hand. The commissioners court cannot escape or conditions its
constitutional duty to provide constables with a reasonable salary by
requiring the constable to submit a petition signed by the voters of
1. Article 3912k has been repealed, effective September 1.
1987. Acts 1987. 70th Leg., ch. 149, 549 (enacting the Local
Government Code). Section 1 of article 3912k has been codified, with
no substantive change, as sections 152.011 and 152.012 of the new
code. ~?
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Honorable Joe L. Price - Page 3 (~~-770)
the precinct. Nothing in article XVI, section 61, or in article 3912k
authorizes the imposition of such a condition.
Your second question is essentially whether the county commis-
sioners court may refuse to provide for the expenses necessary to
operate the constable's office. In Vondy I, the Texas Supreme Court
did not address the question of expenses. In Commissioners Court of
Houston County V. Rodgers, 691 S.W.2d at 756, however, the court held
that section 1 of article 3912k, quoted above, requires commissioners
courts to provide for the "reasonable" office and travel expenses of
the constables' office. Additionally, if a commissioners court cannot
attempt to abolish a constitutionally established office by refusing
to compensate the office-holder, see Vondy II, 714 S.W.2d at 422, it
follows that the commissioners court cannot do the same thing by
refusing to provide for the office's expenses. The. court in Rodgers
did not elucidate what expenses would be "reasonable." What
constitutes "reasonable" expenses is a question of fact within the
discretion of the commissioners court. In Attorney General Opinion
H-992 (1977). the attorney general determined that the amount allowed
must be reasonably related to expenses actually incurred in performing
duties.
Your third and fourth questions are related. You seek clarifica-
tion of what amount constitutes a "reasonable" salary and ask whether
all constables' salaries in the county must be equal or whether they
may vary with the different circumstances in each precinct. In
Attorney General Opinion H-429 (1974). the attorney general determined
that the commissioners court may reasonably prescr1b.e different
salaries for the constables of separate county precincts. This
decision must be read, however, in light of the Texas Supreme Court's
holding in Vondy I (requiring~a "reasonable" salary) and the cases
that applied Vondy I. Consequently, the commissioners court may
provide for different salaries for constables depending upon the
circumstances in each precinct if the circumstances reasonably require
different salaries and if each salary is in itself reasonable. The
circumstances that may properly be considered relate to what
constitutes a reasonable salary.
The amount that constitutes a reasonable salary is a fact
question within the discretion of the county commissioners court. See
Vondy II, 714 S.W.2d at 422. The commissioners court's determination
regarding the reasonableness of constables' salaries will be disturbed
only when the commissioners court clearly abuses its discretion. 714
S.W.2d at 420. If the commissioners court attempts to restrict or
abolish the constables' offices by fixing an extremely low salary,
however, the courts will find an abuse of discretion. See Vondy II.
714 S.W.2d at 422; cf. Bomer v. Ector County Commissione~Court, 676
S.W.2d 662. Accordingly, this opinion does not address what amount
constitutes a reasonable salary; it describes what factors may be
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Honorable Joe L. Price - Page 4 (JM-770)
considered by the commissioners court in arriving at a reasonable
amount.
Although Texas courts considering the issue agree that county
coseaissionerscourts must provide constables with a reasonable salary
and expenses, there exists controversy as to what circumstances may be
considered in determining what constitutes a reasonable salary. In
Bomer v. Ector County Commissioners Court, 676 S.W.2d 662, the court
addressed a challenge to the reasonableness of a $20 per month salary.
The challenge arose from a situation where the sheriff's office had
performed the constables' duties. Because the constables had not
actually performed any of their duties, the court held that "[hlaving
done no work, they have raised no issue of the reasonableness of their
salary." 676 S.W.2d at 665. The court did not, however, directly
question the basic premise that the commissioners court must provide a
reasonable salary.
Two other courts of appeals addressed the reasonableness of
extremely low salaries in similar situations. In Commissioners Court
of Houston County v. Rodgers, 691 S.W.2d 753, the commissioners court
argued that because all process issued out of the sheriff's office, a
salary of one dollar per year was a reasonable salary. The court
rejected the argument, holding that "a salary of One Dollar per year
is the equivalent of no salary." 691 S.W.2d at 756 (emphasis in
original). The court found the Bomer case "inapposite." Id. In
Vondy II. 714 S.W.2d 417, the court addressed a constable's chxenge
that a salary of $40 per month was not reasonable. The court found
this salary unreasonable as a matter of law because the salary
translated to 20~ per hour for duties actually performed by the
constable. 714 S.W.2d at 421. The court found that the commissioners
court's primary reason for fixing such a low salary was a perceived
lack of need for the constable's services because his duties were
performed by others. 714 S.V.2d at 422. The court noted that the
commissioners court cannot attempt to restrict or abolish the
constable's office by refusing to consider what would be a reasonable
salary. Id. The court distinguished the Bomer case on the ground
that the constable in Bomer had not actually performed the duties of
his office. Id.
Despite the careful distinguishing of Bomer engaged in by the
courts in Rodgers and vondy II, some clarification of the impact of
Bomer is necessary. The commissioners court clearly cannot uwait"
until the constable actually performs his duties before fixing a
reasonable salary. The Texas Supreme Court's decision in Vondy I does
not support the imposition of a condition that the constable perform
his duties without compensation prior to the commissioners court
fixing a reasonable salary. Additionally, whether another office is
performing the constables' duties cannot be dispositive as to what
constitutes a reasonable salary for the constable because the
constable has a responsibility, imposed by law, to perform certain
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Bonorable Joe L. Price - Page 5 (JM-770)
duties. See Vondy II, 714 S.W.2d at 422. By distinguishing Bomer
rather thzrejecting it, the Vondy II and Rodgers courts leave it
unclear whether the fact that another county officer is performing the
constables' duties may be considered at all in determining what
constitutes a reasonable salary for the constable.
Several other factors, however,, clearly may be considered in
determining what constitutes a reasonable salary. The salaries of
other constables may be evidence of what constitutes a reasonable
salary. See Vonay II, 714 S.W.2d at 421. The number and nature of
the dutie~mposed on the constable by statute are highly relevant to
the salary necessary to the performance of those duties. See &
Additionally, the factors you mention with regard to different
salaries in different precincts, i.e., caseload, population, and
geographical area, may also be considered.
Finally, you should note that section 1 of article 3912k provides
that "in no event shall such salaries be set lower than they exist at
the effective date of this Act." Accordingly, the commissioners court
must provide constables with at least the salaries provided to
constables on January 1, 1972. Attorney General Opinion H-39 (1973);
see also Broom v. Tyler County Commissioners Court, 560 S.W.2d 435
(Tex. Civ. ADD. - Beaumont 1977. no writ).:Attorney General Opinion
Pi-572 (1975):- Additionally; article 3912iL~specifLes maximum salaries
for constables in counties of a certain population. In Vondy II, 714
S.W.2d at 422, the court stated that the commissioners court may
consider these maximums in determining what constitutes a reasonab~le
salary.
SUMMARY
The Texas Constitution, article XVI, section
61, requires county commissioners courts to pro-
vide constables with compensation and to provide
that compensation in the form of a "reasonable"
salary. The commissioners court must also provide
for the reasonable expenses incurred by constables
in the performance of their duties. Commissioners
courts may prescribe different salaries for the
constables of different precincts if the circum-
stances in each precinct reasonably require
different salaries and each salary is in itself
2. Article 39121 has been repealed, effective September 1,
1987. Acts 1987, 70th Leg., Ch. 149, 549 (enacting the Local
Government Code). Additionally, article .3912k repealed in part
See
article 39121. - Attorney General Opinion H-572 (1975).
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Honorable Joe L. Price - Page 6 (JM-770)
reasonable. What constitutes a reasonable salary
is a question of fact within the discretion of the
commissioners court. The commissioners court may
not, however, attempt to restrict or abolish a
constable's office by fixing an extremely low
salary or by refusing to provide reasonable
expenses related to the performance of the
constable's duties.
JIM MATTOX
Attorney General of Texas
NARY KELLER
Executive Assistant Attorney General
JUDGE ZOLLIE STEAKLKY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion.Committee
Prepared by Jennifer Riggs
Assistant Attorney General
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