Untitled Texas Attorney General Opinion ( 1951 )

Hon. John Dowdy Opinion No. V-l.314
District Attorney
Athens, Texas Re: Compensation of steno-
grapher or clerk to the
District Attorney of
the 3rd Judicial Dis-
trict under the provi-
sions of Senate Bill
212, Acts 52na Leg.,
2;;. 1951, ch. 365, P*
Dear Sir: .
You request an opinion as to whether the
provisions of Senate Bill 212, Acts 52nd Deg., R.S.
1951, ch. 355, p. 517 (codified as Article 326k-19,
V.C.S.), rel.ative,tothe approval ana payment of a
salary for a stenograper or clerk appointed under
this statute are mandatory. You also ask what sal-
ary this employee may receive under the stated facts,
if these provisions are mandatory.
Section 1 of Senate Bill 212 provides:
"Any District Attorney in the State
of Texas in a judicial district contain-
ing two (2) or more counties is author-
ized to employ a stenographer or clerk
who shall receive a salary not to exceed
Twenty-four Hundred ($2400.00) Dollars
per annum, to be fixed by the District
Attorney and approved by the combined
majority of the Commissioners Courts of
the counties composing his judicial dis-
trict. The salary of such stenographer
or clerk provided for in this Act shall
be paid monthly by the Commissioners
Court of each county composing the judi-
cial district, pro-rated app0rti;natel.y
to the population of the county.
You state in your I.etterthat the commis-
sioners' court of one of the counties comprising the
Third Judicial District has declined to approve a
salary for this employee.
Hon. John Dowdy, Page 2 (V-1314)
In Att'y Gen. Op. V-1201 (1951) this office
construed the provisions of Senate Bill 444, Acts 52nd
L-w., R.S. 1951, ch. 374, p. 640, to be mandatory.
Sectionlofthat bill provides in part:
"The District Attorney of the 100th
Judicial District of Texas is hereby au-
thorized to appoint a stenographer who
shall receive a salary not to exceed
Twenty-four Hundred ($2400.00) Dollars
per annum. Said salary shall be fixed
ancl determined by the District Attorney
of said Judicial District, and the Dis-
trict Attorney shall file with the Com-
missioners Court of each county in said
District a statement specifying the
amount of salary to paid said steno-
grapher. Said salary shall be paid
monthly by the Commissioners Court of
each county comprising said District in
the manner and on the same pro-ratio
basis as that contained in the order
of the District Juage of such Districts
for the payment of the salarK of the
official shorthand reporter.
It is stated in this opinion:
"In 2 Sutherland, Statutory Con-
struction (3rd Ed. 1943) 216, it is
stated:
"'Although in every case the leg-
islative intent should control in deter-
mining whether a statute or some of its
provisions are mand~atorythere are,
nevertheless, certain forms and certain
types of statutes which generally are
considered mandatory. Unless the con-
text otherwise indicates the use of the
word "shall" (except in its future tense)
indicates a mandatory intent.'
"In Elms v. Giles, 173 S.W.2d 264,
268 (Tex. Civ. App. 1943, error ref.
141 Tex. 446, 174 S.W.2a 588), the court,
in construing an act to determine whether
it was mandatory or permissive, stated:
Hon. John Dowdy, Page 3 (V-1314)
,-
ml .. . By the use of the word
"shall" in each of the provisions
above quoted, the Act makes it manda-
tory that such notices be given. . .
.t
"The word 'shall' is used'in Sen-
ate Bill 444 in each instance wherein
the duties of the commissioners' courts
are prescribed. In view of the fore-
going it is our opinion that Senate
Bill 444, Acts 52nd Deg., 1951, is man-
datory in regard to the provisions re-
lating to the duties of the commis-
sioners ' courts involved."
In Att'g Gen. Op. V-749 (1948) it was
held that it was mandatory under Article XVI,
Section 61 of the Constitution of Texas that all
of the constables of this State be paid a reason-
able salary.
Although there were involved in Att'y
Gen. Ops. V-749 and V-1201 different constitutional
and statutory provisions than are involved in your
request, it is our opinion that the principles of
law announced in these opinions are applicable to
Senate Bill 212. You are advised, therefore, that
it is mandatory that the stenographer or clerk of
the District Attorney of the Third Judicial Dis-
trict, composed of Anderson, Henderson, and Houston
Counties, be paid a reasonable salary. What con-
stitutes a reasonable salary, however, % left to
the sound discretion of the Commissioners' Courts."
Att'y Gen. Op. V-749 (1948).
SUMMARY
Under the provisions of S.B. 212,
Acts 52nd Deg., R.S. 1951, ch. 365, p.
617, it is mandatory that the steno-
grapher or clerk of the District At-
torney in a judicial district contain-
ing two or more counties be paid a
reasonable salary not to exceed $2400.00
Hon. John Dowdy, Page 4 (V-1314)
-_
per annum. The question of what con-
stitutes a reasonable salary is left
to the sound discretion of,the Com-
missioners'Court5. Att'y Gen. Ops.
V-1201 (1951) and V-749 (1948).
APPROVED: Yours very truly,
J. C. Davis, Jr. PRICE DAMIEL
County Affairs Division Attorney General
Jesse P. Luton, Jr.
Reviewing Assistant
Everett Hutchinson John Reeves
Executive Assistant Assistant
JR:awo
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