Untitled Texas Attorney General Opinion ( 1962 )

THEATLTORNJEYGENERAL
OF TEXAS
AUS- aa. TEXAS
December 17, 1962
Honorable Carleton P. Webb Oplnlon No. WW-1499
County Attorney
Qarza County Re: Legality of the election
Post., Texas of oonstables for precincts
2 and 4 in Oarza County under
the stated facta, and a re-
Dear Mr. Webb: lated question.
Your redpest for an opinion from this office ooncerne
the legality of the election of conatablee for precincts 2 and
4 of ffarza County who were eleoted by majority vote at the Nov-
ember 6th, 1962, Qeneral Eleotion.
A related pueatlon is raised by you a8 followa:
“Another question has arisen in regard to
the same’thing, a8 to the effwt OS’39121, VATS,
Section 9, In regard to the aalarg of the Justloe
of Peaoe and Constable. The salary of the Juatlce
of Peace in Precinct One IS set at $3600a year.
In 1957, the Commissioners~ Court set the salary
for Constable and Justloe OS Peace In all other
precincta besides Prealnct One, at .One Dollar a
year. The queatlon confronting the Commissionera’
Is of course, the matter of setting salaries of
the new Juatlce of Peace and Constables if legally
elected, and whether or not they are bpund by any
restrictlons In regarda to the matter of setting
salaries. * O .‘I
Section 18, Artlole V of the Texas Cbnstltutlon, which
create8 the office of constable, provide8 In part a8 follows:
Vet-;18. Each organized county In the State
now or hereafter existing, shall be divided from
time to time, for the convenience of the people,
Into prealnata, not less than four and not more
,than eight. ~Dlvlslona shall be made by the Com-
mlaslonera Court provided for by this Conetitution.
In each such precinct there shall be elected one
Juatlce of the Peace and one Constable, each of
whom ahall hold hi8 office for four yeara and un-
til his auccesaor ahall be elected and qualified,
. . .
.
lion,. Carleton P. Webb; page 2 (W&1499 )
Section 28, Article V of the Texas Constitution pro-
vldes for the filling of.vacanclea created in certain judicial
offlcea. No constitutional provision can be found which pro-
vldea for the filling of vacancies In the office of constable.
Ho$ever, Article 2355, Vernon’8 Civil Statutes, pro-
.videa in part:
“The Court flommlssloners Coury shall have
power to fill vacancies In the office,of: County
Judge, County Clerk, Sheriff, County Attorney,
County Treasurer, County Surveyor, County Hide
Inspector,. Asseaaor of Taxes, Collector of Taxes,
Justides of the Peace, Constables, and County
Superln’tendent of Public Instruction. Such
vaoancles,shall be filled by a majority vote of
the members of said Court, present and voting and
the person chosen ahall,hold office until the
next general election.”
That a vacancy did exist In the office of constable
In Precincts Two and Four of Garea County, cannot be doubted.
Williams v. Caatleman, 112,Tex. 193, 247 S.W. 263, p. 270.(1922),
and author1 tl there cited. Also.aee Attorney General’s Opinion
No. v-178 (19;;).
Under the plain and unambiguous language of Article
2355, supra, these vacancies are to be filled by the Commlasioners
. . Court and the persons 80 appointed are to hold office until the
next general election. Regardless of whether an appointment Is
or’18 not made, the office of constable la subject to being filled
at the next general,electlon after creation of the vacancy, in
compliance with the ‘terms and provisions of Article 2355, supra.
Pertinent part8 of Section 65a, Article XVI of the
Texas Constitution, read as follows:
n
~Notwlthstandlng other provisions of this
Constitution, the followlngrofflcers elected at the
General ElectIonIn November, 1954 ehall serve only
for terms 9f two (2) years: 0 e 0tg) Constables D
At subsequent elections, such officers shail be
elected for the .full terms provided In this Conatl-
tution.”
By the plain Import of the above quoted Section, the
next General Election, at which constablee are to be elected for
. -
Hon. Carleton P. Webb, page 3 (WW1499)
a four year term, .wlll be In November, 1964.
We are therefore of the opinion that the office of
constable ln.Precincte Two and Four of. Garza County was vacant
at the general election, held on November 6, 1962, and could
properly be filled by the election of a qualified Individual
thereto, said Individual being elected to fill the unexpired
term terminating December 31, 1964.
Your second inquiry relates to the compensation to
be paid the Justices of the Peace and the Constables.
Article 39121, Vernon18 Civil Statutes, provides for
the compensation to be received by Juet%cee of the Peace and
Constables. This statutory provision establishes population
brackets together with maximumsalary limits in each said bracket.
Section 9 of Article 39121, eupra, reads in part: .
'Sec. 9. The Commleelonere 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
Justice of the Peace and each Constable in the
several precincts on an lnd~lvldual basis without
regard to the ealatiles paid 'In other precincts
or to other officials. In arriving at the com-
pensation to be paid the officials goyerned by
the provisions of this Act the Commieeloners
Court shall consider the financial condition of
their respective counties and the duties and
needs of their officials, but in no event shall
any Commissioners Court set the salary of any
official at a figure In excess of the maxlmuni
compensation prescribed for the offlclals of
that county by this Act, save and except as
hereinafter provided, to-wit: . , ,"
From a'gerusal of the foregoing quoted Section, we
can say (1) that &Uaries need not be fixed in equal amounts
In all precincts (2) that the Commissioners Court has wide
discretion In fixin said salaries (3) that no minimum salary
Is prescribed and ( &) that In no event shall the Commissioners
Court eet'the salary-in excess of the maximumcompensation pro-
vided by the aforementioned population brackets, except as specl-
flcally set forth in Section 9, sub-sections 1 and 2 of Article
39121, eupra.
- .
Hon. Carleton P. Webb, page 4 [WW-I&99)
The Legislature in Its wisdom, has given the Commis-
sioners Court wide latitude and discretion In setting salaries
for Justices of the:Peace and Constables. They have prescribed
a maximum as to cotipensation, but have seen fit not to~prescrlbe
a minimum.
However, the Legislature has set up certain guides In
fixing the amount of salaries when they state In Section 9,
Article 39121, supra.
11 e .In arriving at the compensation to be
paid the officials governed by the provisions of
this Act the~Commleeionere Courts shall consider
the financial condition of their respective counties
and the duties and needs of their offlclale. . .’
We are of the oplnlon that the Commissioners Court of
Garza County,Texas, may set the salaries of the Justices of the
Peace and Constables, taking into consideration the financial
‘condition of Garza County and the duties and needs of said of-
ficials, at any ‘figure not In excess of the maximum contained In
the applicable population bracket.
SUMMARY
The Office of Constable in Precincts Two and Four
of Garza County, was vacant at the general~electlon held
on November 6, 1962, and could ~properly be filled by the
election of a qualified Individual thereto, regardless of
whether an appointment had or had not been made to fill
such vacancy, with said Individual being elected to fill
the unexpired term terminating December 31, 1964.
Salaries to be paid Justices of the Peace and Cons-
tables are within the discretion of the Commleeioners
Court limited to the’maxlmums set forth in Article 39121,
i Vernon’s Civil Statutes, and no minimum has been pree-
crlbed by the Legislature.
Sincerely,
WILL WILSON
~OLH:mkh
;’
. . -
Hon. Carleton P;,.Wkbb, page 5 (W-1499)
APPROVED:
OPINION COMMITTEE
W. V. Gepperti'Chairman
John Reeves
Albert Pruitt
Sam Stone
REVIEWEDFOR THE ATTORNEY
GENERAL '
BY: Leonard Pasemore