Untitled Texas Attorney General Opinion ( 1984 )

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The Attorney General of Texas
JIM MATTOX lugust 20, 1984
Attorney General
Supreme Court Building Honorable Margaret Ifoore Opinion No. JM-193
P. 0. BOX 12546
Travis County Atto:rlley
Austin. TX. 76711. 2546
512/475-2501
P. 0. Box 1748 Re: Whether a commissioners
Telex 9101674-1367 Austin, Texas 78.'117 court may authorize certain
Telecopier 512,475.0266 fees under article 3926a,
V.T.C.S.
714 Jackson. Suite 700
Dallas. TX. 75202.4506 Dear Ms. Moore:
214,742.6944
You have reqwsted our opinion as to whether a commissioners
court may set a fee for a service for which no fee was authorized
4624 Alberta Ave., Suite 160
Et Paso. TX. 79905-2793
prior to September 1, 1981, the effective date of article 3926a,
Q15/533-3464 V.T.C.S. That ntaulte provides:
(a) :lhecommissioners court of each county may
,&ylOl Texas, Suite 700 set reasonable fees to be charged for services by
ouston. TX. 77002-3111
the offiws of sheriffs and constables.
1131223-5666
(b) 11 commissioners court may not set fees
606 Broadway, Suite 312 higher tnsn is necessary to pay the expenses of
Lubbock. TX. 79401-3479 providing:the services.
6OW747-5236
Initially, we note the suggestion that article 3926a, insofar
4309 N. Tenth, Suite S it affects sherifffi,is in conflict with article V, section 23 of the
McAlten, TX. 76501.1665 Texas Constitution, which provides for the election of a sheriff
5121662.4547 "whose duties and Iwrquisites, and fees of office, shall be prescribed
by the Legislature . . . ." (Emphasis added). Cf. Tex. Const. art.
200 Main Plaza, Suite 400 V, 520 (county ckclr). It is argued that the legislature itself, not
San Antonio, TX. 76205.2797 a commissioners cwlrt, must set s fees charged for a sheriff's
5121225-4191 services.
An Equal Opportunity/
We begin by r,oting that constitutional provisions are to
Affirmative Action Employer
construed in the :.:.ghtof conditions existing at the time of their
adoption, Director cf the Department of Agriculture and Environment
Printing IndustriezFAssociation of Texas. 600 S.W.Zd 264 (Tex. 19801,
that a constitutional meanine fixed won its adootion is never
different at a subsequent time, Jones v.'Ross, 173 S:k'.2d1022 (Tex.
1943); Cramer v. Sheppard, 167 S.W.2d 147 (Tex. 1942), and that the
readoption of a prcwision, using the same language, is presumed
have been done wi.:h a purpose not to change the law. See Cox
Robison, 15G S.W. 1149 (Tex. 1912). Except for a changein 1954
_,
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IlonornhleMargaret Moore - :?age2 (JM-193)
making a sheriff's term o:i office four years rather than two, the
language of article V, se:rion 23 has been the same since it was
adopted as an original part ,,fthe constitution in 1876.
In 1876, the phrase "fees of office," in the context of its
article V. section 23 use, neant "the reward or compensation or wages
allowed bv law to an officer for services Derformed by him in the
discharge-of his official &ties." City of Austin v. Johns, 62 Tex.
179 (1884). See also __ Veltnan v. Slator, 217 S.W. 378 (Tex. 1919);
State v. Moore, 57 Tex. 307 (1882). The i~ntentof the constitutional
provision was that the legislature itself should specify the fees a
sheriff might collect and retain as his personal compensation. The
purpose was undoubtedly to prevent any sheriff from exacting tribute,
in the form of fees, to enri,:hhimself. _Cf. Tarrant County v. Butler,
80 S.W. 656 (Tex. Civ. App. 1904, no writ) (as to county clerk).
The meaning of article V, section 23 remains the same today, but
no longer do sheriffs rz:ain collected fees as their personal
compensation. Article XVI, section 61 was added to tha constitution
in 1935, amended in 1948, alsiamended again in 1972. It abolished the
fee system for compensating sheriffs; the commissioners courts of all
counties are now required IO compensate such officers on a salary
basis. See Wichita County Y. Robinson, 276 S.W.2d 509 (Tex. 1954);
Srttegast v. Harris County,-L59 S.W.2d 543 (Tex. Civ. App. - Galveston
1942, writ ref'd). Fees set by the legislature were not abrogated by
the new provision, but the! purpose to which they could be put was
changed. Banks v. State, :I62 S.W.2d 154 (Tex. Civ. App. - Austin
1962, writ ref'd); State v,--3
Glass 167 S.W.2d 296 (Tex. Civ. App. -
Galveston 1942). writ ref'tiw.0.m. per curism, 170 S.W.2d 470 (Tex.
1943).
"Fees of office" for sheriffs in the sense used by article V,
section 23 no longer exist. The danger which that provision was
designed to control by direct legislative oversight (and the only
subject matter on which it s:ts) has been constitutionally eliminated.
Today, article V, sectior 23 of the Texas Constitution no more
prohibits the delegation tc commissioners courts of fee-setting power
than it prohibits the delegation to them of power to set the salaries
and perquisites for she:r::ffs. See V.T.C.S. art. 3912k. Cf.
Commissioners Court of Lubbock County v. Martin, 471 S.W.2d 100 (Tex.
Civ. App. - Amarillo 1971, -grit ref'd n.r.e.). Accordingly, we turn
to an examination of the ststute itself.
Article 3926a, V.T.C.S., delegates to the commissioners court
power to "set reasonable iers to be charged for services by the
offices of sheriffs and coIlstables." (Emphasis added). Insofar as
sheriffs are concerned, sxtion 23 of article V of the Texas
Constitution specifies th;,t the duties of the sheriff are to be
prescribed by the 1egisLsture (a task -not delegated to the
Honorable Margaret Moore - Page 3 (JM-193)
A
commissioners court), but a description of duties to be discharged by
a sheriff need not, and us.l.311~does not, describe all the services
that might be performed in 1:hedischarge of those duties. Starr v.
Board of Commissioners of Lelaware County, 79 N.E. 390 (Ind. App.
1906).
The services a sheriff officially performs are merely actions
that further the discharge .)f his duties (deeds that are useful or
instrumental in achieving-that object). See Van Zandt v. Fort Worth
Press, 359 S.W.2d 893 (Tex. 1962). Thesetting of a fee for a
service, if such a servic? is performed in the discharge of a
sheriff’sxties, is not the equivalent of requiring that the service
be performed, or a prescription of the sheriff’s duties. The fixing
of fees for a sheriff’s serItces, whether or not a fee was previously
charged for them, is entirely compatible with the prescription of a
sheriff’s duties by the leg:.r;lature.
We have found no ccnstitutional provisions or conflicting
statutes that prevent a ccnmissioners court from setting a fee for
services performed by the offices of sheriffs and constables in
accordance with article 39:!Oa,V.T.C.S., even though no fee for the
service was authorized prier to September 1, 1981. We conclude that
commissioners courts may se: such fees.
SUMMARY
Commissioners c5urts may set fees for services
performed by sheriffs and constables in accordance
with article 3926z, V.T.C.S., even though no fee
for the service ws authorized prior to September
1, 1981.
J /kVery truly yours
JIM
A
MAT TOX
Attorney General of Texas
TOM GREEN
First Assistant Attorney General
DAVID R. RICHARDS
Executive Assistant Attorney General
Prepared by Bruce Youngblocd
Assistant Attorney General
P. 845
Honorable Margfiret Moore - Eage 4 (JM-193)
APPROVED:
OPINION COMMITTEE
Rick Gilpin, Chairman
Colin Carl
Susan Garrison
Jim Moellinger
Nancy Sutton
Bruce Youngblood
p. 846