Untitled Texas Attorney General Opinion ( 1943 )


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  • Hon. John R. Shook                Opinion NO. o-5682
    Criminal District Attorney        Re: Salaries to be paid to
    Bexar County                      juvenile officers and assist-
    San Antonio, Texas                ant juvenile officers in
    Bexar County.
    Attention:   Mr. Jay Sam Levey:
    Dear Sir:
    Your letter of October 18, 1943, requesting the opin-
    ion of this department on the question stated therein reads,
    in part, as follows:
    "A question has arisen as to the compensation allowed
    juvenile officers and we have been requested to secure an
    opinion from you relative thereto.
    What are the limitations of salaries to be paid to
    juvenile officers in Bexar County, having a population
    of 338,176 inhabitants according to the 1940 Federal
    Census?
    "Article 5142 of the R.C.S. of Tex., as amended, be-
    ing Acts of 1937, 45th Legislature, p. 545, ch. 269, Sec-
    tion 1, provides that the salaries of assistant juvenile
    officers shall be the same as that fixed by the General
    Law in Article 3902 of the R.C.S. of Tex., 1925, for as-
    sistants to other county officials.
    "Article 3902 was amended a number of times and no
    longer applies to counties having a population in excess
    of 190,000 inhabitants. Such counties are now governed
    by Article 3912e, of which subdivision h provides that a
    first assistant or chief deputy shall be compensated not
    to exceed $3500.00 per annum, one assistant or deputy not
    to exceed $3000.00 per annum and other assistants, depu-
    ties and employees not to exceed $2400.00 per annum.
    There is a further proviso that chief clerks or chief
    deputies in countv and district offices shall receive not
    less than $3000.00 per annum, each, and heads of depart-
    ments not less tnan $25OO.OO per annum, each."
    Bexar County has a population of 338,176 inhabitants
    according to the 1940 Federal Census. Article 5142, Vernon's
    Hon. John R. Shook, page 2   (O-5682)
    Annotated Civil Statutes, provides, in part:
    11** *
    "Provided that in counties having a population of one
    hundred and fifty thousand (150,000) or more, and contain-
    ing a city of one hundred thousand (100,000) or more, the
    County Judge may appoint a juvenile officer, subject to
    the approval of the County Juvenile Board, to serv,efor a
    period not to exceed two (2) years from the date 'of ap-
    pointment, and whose extra duties 'shallbe to make 'investi-
    gations for the Commissioners Court on applications for
    charity, or admittance into detention homes or orphan homes
    created by such counties. The salary of such juvenile of-
    ficer shall not exceed Three Hundred Dollars ($300) per
    month, his allowance for expenses not to exceed Two,Hundred
    Dollars ($200) a year. Such juvenile officer may select
    assistant juvenile officers, subject to the approval of the
    County Judge and County Juvenile Board, the number of such
    assistant juvenile officers'not to exceed one assistant to
    each twenty-five thousand (25,000) population. Thk sala-
    ries of such assistant juvenile officers shall be the same
    as that fixed by the General Law in Article 3902. of the
    Revised Civil Statutes of Texas. 1925. for assistants to
    other county officials; Such assistant juvenile officers
    may be allowed expenses not to exceed Two Hundred Dollars
    ($200) per year each." (Emphasis supplied)
    Article 
    5142, supra
    , was enacted as a Civil Statute
    by the 36th Legislature, Second Called Session, 1919. (S.B. No.
    48, Ch. 51, ,p. 130, General Laws) Apparently, Senate Bill No.
    
    48, supra
    , was substantially the same as Article 1202, Vernon's
    Annotated Code of Criminal Procedure, 1911, which was held void
    as to the appointment of salaried,,probationofficers in the case
    of Walsh v. McConnell (Tex.Com. of App.) 
    273 S.W. 833
    . Article
    5142, Revised Civil Statutes of 1925 was amended by Senate Bill
    No. 138, Acts of the 40th Legislature, Regular Session, 1927.
    This Act (S.B. 
    138, supra
    ) was held void as ,tothe appointment
    of salaried probation officers by the Supreme Court in the case
    of Hamrick v. Simpler, 95 S.W.(2d) 3,57. Article 5142 of the
    Revised Civil Statutes of Texas of 1925, as amended by Acts of
    the 40th Legislature, 1927, was again amended by H.B. No. 146,
    Acts of the 45th Legislature, Regular Session, 1937. The above
    quoted provision of Article 5142 as it now appears in said Ar-
    ticle was contained in both the 1927 and 1937 Acts. It will be
    noted that the foregoing provision of Article ,5142expressly
    provides that the salary of~,thejuvenile officer shall not ex-
    ceed $300 per month and his allowance,for expenses not to ex-
    ceed $200 a year. Said provision also expressly provides that
    the salary of assistant juvenile officers shall be the same as
    Hon. John R. Shook, page 3   (O-5682)
    that fixed by the General Law in Article 3902, of the Revised
    Civil Statutes of Texas, 1925 for assistants to other county
    officials. Therefore, we must look to Article 3902 of the
    Revised Civil Statutes of Texas, 1925, to determine the amount
    of compensation to be paid assistant,juvenile officers.
    Article 3902, of the Revised Civil Statutes of Texas,
    1925, is a statute, among other things, prescribing the maximum
    compensation which may be allowed for deputies or assistants to
    officers named in Article 3883 for their services. The juvenile
    officer is not named in Article 3883. However, Article 5142,
    as heretofore stated, expressly provides that the salaries of
    such assistant juvenile officers shall be the same as that fixed
    by the General Laws in Article 3902, of the Revised Civil Stat-
    utes of Texas, 1925, for assistants to other county officials.
    The applicable portion of Article 3902, of theRevised
    Civil Statutes of Texas, 1925, reads as follows:
    Vrovided, that in counties having a po$iiationin ex-
    cess of one hundred thousand inhabitants the maximum com-
    pensation that may be allowed such deputies or assistants
    for their services shall be as follows, to-wit:
    "First assistant or chief deputy not to exceed twenty-
    four hundred dollars per annum, provided the commission-
    ers' court may increase said amount to not exceed to rate
    of three thousand dollars per annum, where a necessity
    therefor is shown, and where the person to be appointed has
    been previously the head of a department for not less than
    one year, or has been in the continuous service of~the
    county for a period of not less than two years.
    "Head of departments may be allowed by the court,
    when in their judgment such are necessary, not to exceed
    a rate of twenty-four hundred dollars per annum, when such
    heads of departments sought to be appointed shall have pre-
    viously served the county for not less than two continuous
    years. Other heads of departments shall receive not to
    exceed twenty-one hundred dollars per annum; provided, that
    no head of a department shall be created except where the
    person sought to be appointed is to be in actual charge
    thereof, with deputies or assistants under his supervision,
    or a department approved by the court and only in offices
    capable of a bona fide subdivision into departments.
    "Deputies or assistants other than those above pro-
    vided for may be allowed, the number to be determined by
    Hon. John R. Shook, page 4   '(O-5682)
    the commissioners' court, and their salaries based as far
    as possible on a graduated scale according to service,
    ability and qualifications. Fifty per centof the number
    so appointed may be authorized at a rate not to exceed
    twenty-one hundred dollars per annum, provided such rate
    shall be allowed only to deputies in service for two years
    or more, and all other so appointed at a rate not to ex-
    ceed eighteen hundredsdollars per annum.
    "Provided further, that in determining the number of
    inhabitants in each of the instances heretofore mentioned,
    the number of inhabitants as shown by the last United
    States census shall control.
    In view of the foregoing statutes, you are respect-
    fully advised that the salary of the juvenile officer~of Rexar
    County cannot legally exceed the sum of $300 per month, and his
    allowance for expenses cannot legally exceed the sum of $200
    per year. (Article 3142) It is our further opinion that the
    salaries of assistant juvenile officers are expressly fixed by
    Article 3902, of the Revised Civil Statutes of Texas, 1925.
    Stated another way, the maximum compensation of the assistant
    juvenile officers cannot exceed the amounts set forth in Article
    3902, of the Revised Civil Statutes of Texas, 1925.
    We have carefully considered Subsection h, Section
    19, Article 3912e, Vernon's Annotated Civil Statutes, and it
    is our opinion that this statute has no application to the ques-
    tion under consideration in that Article 
    5142, supra
    , expressly
    provides that the compensation of assistant juvenile officers
    shall be the same as that fixed by the General Laws in Article
    3902, of the Revised Civil Statutes of Texas, 1925, for assist-
    ants to other county officials. It is true that Article 3902
    has been amended several times and is not now applicable to
    counties containing a population of more than one hundred and
    ninety thousand inhabitants, according to the last Federal Cen-
    sus. However, Article 
    5142, supra
    , has not been amended with
    reference to the above quoted provision fixing the compensation
    of assistant juvenile officers. Article 
    5142, supra
    , in fixing
    the compensation of assistant juvenile officers merely used
    Article 3902 of the Revised Civil Statutes of Texas, 1925, as a
    yardstick to determine ,themaximum compensation that could be
    paid such assistant juvenile officers, and as heretofore stated,
    it is our opinion that the maximum compensation of such assist-
    ant juvenile officers cannot exceed the amounts set forth in
    Article 3902, of the Revised Civil Statutes of Texas, 1925.
    1    -
    Hon. John R. Shook, page 5   (O-5682)
    In connection with the foregoing conclusion, we want
    to point out that it is well established ir this State that
    "an officer may not claim or reach any money without a law au-
    thorizing him to do so, and clearly fixing the amount to which
    he is entitled." (Tex.Jur., Vol. 34, p. 507)
    It is stated in Texas Jurisprudence, Vol. 34, p. 508:
    "Statutes prescribing fees for public officers are
    strictly construed; and hence the right to fees may not
    rest in implication. Where this right is left to construc-
    tion, the language of the law must be construed in favor
    of the government. Where a statute i,scapable of two con-
    structions, one of which would give an officer compensa-
    tion for his services in addition to hits salary, and the
    other not, the latter construction should be adopted. It
    is no concern of an officer that the Legislature may have
    been toward other officers more liberal than toward him
    in the matter of compensation for services; nor does this
    fact justify the courts in upholding his claim.for compen-
    sation for services as against a fair and reasonable in-
    terpretation of the statute.
    n * * *u
    Article 3902, Vernon's Annotated Civil Statutes, is a
    general statute applicable to counties having a population of
    190,000 inhabitants or less, authorizing district, county or
    precinct officers of such counties to appoint deputies, assist-
    ants or clerks in the manner prescribed therein and said stat-
    ute fixes the maximum compensation of such deputies, assistants
    or clerks. Article 
    5142, supra
    , is a "reference statute" as it
    refers to Article 3902 of the Revised Civil Statutes ofTexas,
    1925, for the purpose of determining the maximum compensation
    of assistant juvenile officers. Article 5142 is a statute au-
    thorizing the appointment of assistant juvenile officers and
    prescribes the mode of making such appointments and said stat-
    ute also prescribes the maximum compensation of such assistants
    by stating "that the salaries of such assistant juvenile offi-
    cers shall be the same as that fixed by the General Laws in
    Article 3902, of the Revised Civil Statutes of Texas, 1925, for
    assistants to other county officials." Generally speaking, it
    is well established that a statute giving authority to do a
    particular thing, and prescribing the mode of doing it is man-
    datory in the sense that all other modes are excluded. (Weaver
    v. Robinson, 
    268 S.W. 133
    ; Ellis v. Holcombe, 69 S.W.(2d449)
    Therefore, as heretofore stated, the maximum salary of the juve-
    nile officer of Bexar County cannot legally exceed the sum of
    $300 per month, and his allowance for expenses cannot legally
    -     .
    Hon. John R. Shook, page 6~' (O-5682)
    exceed the amount of $200 per year. The maximum salaries of
    the assistant juvenile officers are expressly fixed by Article
    3902, of the Revised Civil Statutes of Texas, 1925.
    Yours very truly
    ATTORNEY GEMERAL OF TEXAS
    BY /s/ Ardell Williams
    Ardell Williams, Assistant
    APPROVED OCT 29, 1943
    /s/ Grover Sellers
    FIRST ASSISTABT ATTORNEY GENERAL
    APPROVED: OPINION COMMITTEE
    BY:       BWB, CHAIRMAN
    AW:EP:wb
    Encl.
    

Document Info

Docket Number: O-5682

Judges: Gerald Mann

Filed Date: 7/2/1943

Precedential Status: Precedential

Modified Date: 2/18/2017