Untitled Texas Attorney General Opinion ( 1939 )

OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
--i--
Hon. &&IIIR. Shook
Criatltial Metriot Attorney
Ban Antonio, Texao
Dear Sir1 Attention of Er
Be are in req
ion of this department
stated.
Your letter
the Camis-
for a alari-
116,but are, naverthelesr, om-
he request made U.S.
e ruled, and oorreotly 80, we
at a speoial county judge,
by the parties or appointed by
the Ootsrnor upon the tllequallfioation OS
the regular oounty judge in elther~& 01vil
suit or a probate base, ie entltled.to 1/36S
of the annual salary of the oounty judge for
saoh day that he senss; You further ruled
Hon. John R. Shook, Page 2
that suoh payment was to be made out of the
regular officer*s salary fund.
"We ask you tha following questions:
"1. Is the regular judge*8 alary tv be
reduoed by the emouut that is paid to the
spsolal judge?
-2. pould the same hold true It the
regular aounty judge ia not disqualliied,
but tails to act by reason 0f illness, other
inability or by taking a short vaoatloh, and
a epeoial judge ia eleoted by the praotioing
lawyers to serve aa provided Bar by Artiale
1934 of the 1923 Revised Civil Statutea?
‘3. In determining the emount of a-pen--
sation to be paid to the special county judge,
should the additional compensation rhich the
regular oouuty judge receives ae a member of
the uvenile board ba included in the aalaula-
tion d*
In your letter you refer to our opinions Roe.
Q-722 and O-1234. The tlrst opinion mentioned~uas written
by Hon. Edgar Gale, Aaairtant Attorney General, and dtreot-
ed to Ron. Fred C. Porter, County Atto.:nep,Yaufman, Texas
and holds that a epeclal county judge whether serving in a
general capacity or in a probate oapaaity, only should be
compensated on the following basis:
The annual mlary of the judge of the county tour
divided by three hundred and sixty-dive and the quotient
multiplied by the number of days aotually served by such
special judge, and that this compensation should be paid
rrom the Officers' Salary Fund or the oouaty.
Opinion No. O-1234 wes written by Ron. WB. J.
Fanning, Aseletaat Attorney General, directed to Hon.
imight Whitwell, Aaeietant County Attorney, Colllnr County,
and holda directly in accord I*ith opinion X0. O-722.
Eon. John R. Shook, Fage 3
hrticle 1933, Vernon's Civil Statutes, reads as
follows:
Whenever the county judge or the special
judge shall be disqualified from trying 'a case,
#he parties or their counselrmy agree upon an
attorney for the trial thereof; and, if they
shell fail to agree upon an attorney at or before
the time it Is called for trial, or if the trial
of the ease is pending and the county judge should
become unable to aot, or Is absent, and a speolal
judge is seleated who is disqualified to proceed
with the trial, and the partfes then fail to se-
lect or agree upon a special judge who is quall-
ffed, the county judge or special judge presid-
Ing s&all certify the fact to the Governor Was-
dlai%ly, whereupon the Covernor shell appoint a
speci& judge, qualified to try same. Such ap-
pointment may be made by telegram or otherwise.
The special judge shall proceed to the trial or
disposltlon of Euch case. iinyspeolal,judge
agreed upon or appointed to try cases shall re-
ceive the srme pay for his services as is provid-
ed by law for county judges."
Articlea554, 555, and 556, Code oi Criainal Pro-
cedure provide thst when the judge of the county court or
county court at law is disqualified in any criminal cape.
pending in the court of which he Is a judge, that the par-
ties my, by consent, agree upon a special judge to try
such case and it the parties fail to agree upon a speofal
judge tc try such case on or helore the third day of the
Berm at which such case may be called for trial, the judge
presiding shall forthwith certify that faot to the Governor
who shall appoint scme practioing attorney to try the case.
'!'hssa
statutes turthar provide that the attorney agreed
upon or app'oiuteashall, before he enters upon his duties
as special judge, take the oath of office required by the
Constitution and that the clerk of the oourt shall knter
in the minutes, as a part ot the proceeding in such oause,
a record ahowing thatthe judge of the oourt was disqu~li-
fied to try the cause, that the special judge (naming him)
was by consent of the parties agreed upon and was appointed
by the Governor to try the oause, and that the oath oi
office prescribed by law had been duly admlhlstered to suoh
5G5
Hon. John R. Shook, Page 4
apooial judge.
Artlols 557, Code of Criminal Prooedure, reads
as follows:
*A speoial judge seleoted or appointed
in aooordance with the meoeding artiolea
shall receive the same oompenantion as provid-
ed by law ror regular judges in similar oaaea.*
Rexar County had a population of two hundred
and ninety-two thousand five hundred end thirty-three
(292,533) Inhabitants aooordlng to the last Federal Cenaua,
and paragraph (4) at SeVtlon 19 a? Artiole SOlee, Vernon’8
Civil Gtatutea, epeolfidslly designates the amount of sal-
aries to .be paid oounty offioiala In.oountiea having a
population In excess or One Hundred and Ninety Thousand
fnhabitants. Therefore, Bexar County would oome within the
provlafone OS paragraph (d) of Seotdon 19 of Artfole 3$12e,
wherein the salaries of the oounty orfiolala o? such ooun-
ties are definitely provided. Section 15 OS Artlole 5142b,
Vernon’s Civil Statutes provides addftional compensation
for oounty judges of oounties having the population deafg-
netad in Artlole 3912s a8 members of the oounty Juvenile
Board in such counties.
Sections 1, 2 and 15 of Artlole 5142b, Vernon’8
Civil Statutea, read as follower
wSectlon 1. That the provisions of this
Aot ahall apply to and arfeot auoh counties
only ln the State of Texea as have, aooording
to the last preceding Federal Cenaua, a popula-
tion of not more than three hundred abd twenty
thousand (320,000) Inhabitants, and not leaa
than two hundred and twenty thouaaud (220,000)
Inhabitants, aooording to the last preoeding
or any future Federal Ceneue.
nSsotion 2. The Juvenile Roard of suoh
oountiea ahall be aompoaed of the Judgea of the
several Diatriot and Criminal Diatriot Courts
thereof, together gith the County Judge there&.
“Section 15. The members oompoaing said
Juvenile Roar6 in auoh oountles, on eooount
. ’
.
Hon. John R. Shook, Page 5
of the additional duties hareby imposed on
them, ara each hereby allowed an addltlonal
oompenaation ot Seventy-five ($75.00) Dollafa
per month to be paid by the Commlaaioneral
Court In such oountlea, and the same to be
in addition to all other oompensation now
allowed by law to auoh oiilcera.”
In the oaae of Bolland vs. Rarrla County, 102
SW Znd, 196, a deolalon ot the Coamiaaion o? Appeals ot
the State ot Texas adopted by the Supreme Court, it we8
held that a speoie! judge o? a orimlnal dlatriot oourt
0r Harris county, aotlng in the abaenoe o? the regular
judge was entitled to oompenrsatlon on a basis o? salary,
parable to the regular diatrlot judges o? that oounty,
inoduding salary payable to the regular dlatriot judges
as member8 of the Juvenile Board, notwithstanding the
apeoial judge pe~?orntsno duties as a member o? the Juven-
ile Board, and that the cimountalloued regular judgea ior aer-
vi088 performed as members o? the board, waa allowed aa part
a? their annual aalery end not merely as additional oompen-
aatioa.
In view of the ioragoing authorities, we answer
your quf9atlonaas followsI
1. The regular udge’a ealary is not to be re-
duoed by the amount that i8 paid to the special judge.
The regular judge ia entitled to his iull canpeneation
aa allowed by law, although it is necessary rot a apeoial
judge to aot ln certain inatanoea.
2. The same enawer applies to your aeoond ques-
aa It 18 immaterial whether the judge was disqualltfed
or failed to aot by reason o? illness or some other inabill-
ty or by taking a short vaoation. It munt be assumed that
the regular judge will talthtully perfonu his duties and
aot in all oases exoept where he la dlaqualltied or is un-
able to aot by reason o? some legal excuse.
3. In deterrainingthe amount o? oompenaatlon to
be paid to the apeoiel oounty judge, the additional oanpen-
aation whioh the regular ‘rounty judge moeives as a member
’ .
Hon. John R, Shook, Page 6
of tbe Juvenile Court should be included in the gploula-
tlon in arriving at the amount whloh the specie) aounty
judge is entitled to.
Trusting thnt the foregoing fully inawera your
inquiry, we remin
Vary trulf yours
OF ‘IEXAC
ATTO?NEY (3Es?IERAL
BY &zidh&m*
Rsaeli Wllllama
Aa6iataat
AWlAW
APPROVED
OPINION
COMMI’TTIC
c 4ik%s,