Untitled Texas Attorney General Opinion ( 1939 )

OFFICE OF THE ATTORNKY OKNKRAL OF TKXA8 AUSTIN May 27, 1939 Honorable Fred T. Porter County Attornoy Kautian County Kaufman, Texas Dear Sir: We are In recelp bearing date May 20, 1939, ing questfone: the regular oounty Itled to reoelve the same per r judge for every day that in such probate matter? he special oounty judge reoelve he regular otiioer’a salary fund?* In answer to your first question, it is the opinion or this department, and you are 80 advlmd, that the compeu- satlon ror a special judge appointed to try oama in whlah Honorablr Fred T. Porter, May 27, 1939, Pago 2 the regular judge or the County Court of Kaufman County is disqualified, la the annual salary oi the judge of the County Court or Kaufman County divided by 365 and the quo- tient multiplied by the number of days lotually served by auoh apeolal judgr, Our opinion is baaed upon Artiole 1933 Revised Civil Statutes or Tr~aa 1925 and Art1018 557, Eode of Criminal Prooedure, Rsvlaed &atutea or 1925. Article 1933, Revised Civil Statutes, reads In part as follows: *- - - Any special judge agreed upon or ap- pointed to try oases shall receive the same pay iOr.hia eervioea as lm provided by law for county judges.” Artlole 567, Code of Criminal Procedure, reads as f 011OWSf “A apaclal judge selected or appointed in acoordanoe with the preceding artiola shall ra- oeive the same oompenaatloa as provided by law ror regular judges in almllar oaa68.* You state In your latter that in Keufman County, whloh la a oounty of over 20,000 population, the. county judge in on a regular salary fixed by the CommissioneraT court. Although the statutes quoted do not apeeirlaally provide that the special judge’s salary shall be determined by the number of days the jud e servos), we believe that this la the ralreat and moat praot fical ray of oaloulating a apa- oial judge’s oompenaation. Compara. the provision6 of Artlola 6821 wlth rersrenoa to the oompenaatlon of a apehI diatriot judge, which reads as tollowar “The aalariaa of apwial judges - - - shall be determined and paid as rollowa: “2. The amount of such. salary shall be aa- certained by dlylding the salary allowed a district judge by 305, and then multiplying the quotient by the number OC days actually served by the ape- oial judge.” 543 Honorable Fred T. Porter, May 27, 1939, Page 3 In anawar to your aaoond question, you are advised that it is the opinion of this department that in probate oaaoa, whara tha regular oounty judge la disqualified end a l pooial judge la agreed upon by the parties or appointed by tha governor, such apeolal judge, so appointed, In such probate oases, shall be ontltled to receive the same oom- ponaatioa per diem as the regular judge, for every day that such special oounty judge serves In that capacity. The salary ot the county judge, under tha provl- aiona of Article 3912s (3). Revlaad Civil Statutes, la *In lieu or ‘all other rrea, oommiaaiona or cbmpanaation* and neoeaaarily oovira oompaaaation ior all ler vlo earendered .;zr;he county judga, Including hla lervioe In probate mat- Wa believe that It would be impossible to separate the Galus or the aervloea or a apeoial judge in probate matters from the value of his aervloea in other mattera, under the salary system. In other words, it is our oplaion that a apeaial judge who serves in probate matters la en- titled to receive the eame oompenaatlon as if he had psr- rormed all or the duties of the oouaty jgdge. Ccaaparb Holland ‘1. Harris Couatx 102 S. W, (2) 190, a deolaion of the ‘corn- mission of Appeais ore the State of Texas, adopted by tha Supreme Court wherein it was held that a special diatriot juggo wsa entitled to receive a proportion of the regular salary of a diatrlot judge baaed on the number of days served, evan though he did not p8rrOm some of the duties required of the district judge. In this connection Artlolo 1932, Revised Civil Statutes of Texan, 1925; provider: When a oounty judge is dlaqualirled to aot la any probata matter ha shall forthwith oertlfy his dlaquallflcat~on therein to tha governor, whereupon the governor shall appoint some person to sot as special judge in said case, who shall act Iroai term to term until auoh dfaqualfflaatioa ceases to, exist.” Artiole 1933, Revised Cltil Statutes ot Texas), 1925, from whloh we have already quoted, provides: Honorable Fro& T. Porter, Mny 27, 1939, Page 4 *Any apeolal judge agreed upon or appointed to try cases ahall rrcelve the same pay ior hla aervicoa as 10 provldad by law for oounty judges.” WI do not reel that the 1agIrlature intended that a apealal oounty judge serving ror one purpose should be plaoed upon a dlrrerent salary baa18 from a special county judge for another or dirrerent purpose and It la our .opinlon that a ape- oial county judge In probate oases shall be compensated upon the same basis as a special county judge while sitting for other purposes. With referenoa to your last question, we dlraot your attention to Section 4 of Article 39120, which provides as follows : ‘In all counties of this state containing a population of lees than 190,000 lahabltanta ao- cording .to the last preceding Federal Census wherein the oounty or precinot officers are com- penaatad on a salary baa18 under ths provisions . of this Act. there shall be oreated a fund to bo be-proteotod to the sake extent as other county run&s.” We are of the opinion thatthe salary or a oounty judge should be oonaldered athe aalariea of offlcera~ and an eauthorlzed expense of oifioae, and aooordlngly, that a ape- oial oounty judge should be oompenaated out of the ofticer~a salary fund. Honorable Fred T. Porter, May 27, 1939, Page 5 Trusting that this aatiafactorlly answers your quea- Mona, we remain Yours very truly ATTORNEYGENERALOF TFXAS -- ATTORNEYGENERALOFTXXAS EC:FL APPROVEDOPINION CObfMITTEXBY RWF CHAIRMAN .