Untitled Texas Attorney General Opinion ( 1943 )

THE ATTORNEY GENERAL
OFTEXAS
Honorable Joseph H. Mims
County Attorney
Midland County
Midland, Texas
Dear Sir: Opinion No. O-5470
Re: Is the commissioners' court of
Midland County authorized to
allow ex officio salary to the
justice of the peace?
This will acknowledge receipt of your letter of recent date re-
questing the opinion of this department on the above stated ques-
tion, You have informed us that justices of the peace of Midland
County are compensated on a fee basis; therefore not being salaried
officers, they are not affected by subsection (bj of Section 6 of
Article 3912e, Revised Civil Statutes, inhibiting compensation for
ex officio services.
Article 3895, Revised Civil Statutes, provides as follows:
"The Commissioners' Court is hereby debarred from allowing
compensation for ex officio services to county officials when
the compensation and excess fees which they are allowed to
retain shall reach the maximum provided for in this chapter,
In cases where the coslpensationand excess fees which the
officers are allowed to retain shall not reach the maximum
provided for in this chapter, the Commissioners' Court shall
allow compensation for ex officio services when, in their
judgment, such compensation is necessary, provided, such com-
pensation of the officials for ex officio services allowed
shall not increase the compensation of the official beyond
the maximum of compensation and excess fees allowed to be
retained by him under this chapter. Provided, however, the
ex officio herein authorized shall be allowed only after an
opportunity for a public hearing and only upon the affirma-
tive vote of at least three members of the Commissioners'
Court."
You have expressed the opinion that the above quoted article does
not authorize a commissioners' court to pay a justice of the peace
for ex officio services. For your reasons in reaching such a
conclusion we quote in part from your letter as follows:
Honorable Joseph H. Mims, page 2 O-5470
n....Article 3895 speaks of 'county officials'; other articles
dealing with fees of office distinguish between county of-
ficials and precinct officers. Therefore it would seem that
the maxim, 'The expression of one thing excludes the other,'
applies here."
In other words , you are segregating the officers named under the
articles pertaining to fees of office into groups, and by applying
the above maxim quoted from your letter are limiting the scope of
Article 3895, supra, to one of these groups. Maxims or rules of
construction used in interpreting statutes are not arbitrary rules,
but are merely used by the courts as a means of ascertaining the
legislative intent of the law makers. Such rules will not be
adhered to in statutory constuction when their application will
defeat the purpose of the statute.
The primary query presented by your request is whether or not jus-
tices of the peace are "county officials" within Article 3895, su-
pra. In arriving at an answer to this question, we do not think
too much emphasis should be placed upon the fact the articles deal-
ing with fees of office speak of "county, precinct and district
officers, "for up to 1934 these same officers named in our present
articles on fees of office were all designated ascounty officers.
i;Je
cannot say or conclude that this change of language was intended
or designed by the Legislature to alter the scope of Article 3895,
supra, which has long been on the statute books, in the absence of
some specific expression to that effect.
We have dioundno authority naming those who are within the purview
of this article or directly on the question if a justice of the
peace is included thereunder. It was held in Conference Opinion
No. 2166, dated December 12, 1919, approved by former Attorney
General C.M. Cureton, that justices of the peace were county offi-
cials within the meaning of Article 3893 (now Article 3895). The
reasons for so holding are fully stated in the opinion, a copy
of which is herewith enclosed. Since the writing of that opinion,
the Legislature has not materially altered the statute providing
for compensation for ex officio services; in fact, the only change
that has been made thereto was by the 43rd Legislature in adding
the proviso requiring an opportunity for public hearing and the
affirmative vote of at least three members of the commissioners'
court. We held in our Opinion No. O-125 that ex officio compensa-
tion may be allowed justices of the peace. A copy of that opinion
is also enclosed.
Your attention is called to that portion of the enclosed conference
opinion where the writer therein elucidated upon the nature of ex
officio services and that compensation therefor should only be
allowed when such services have been performed.
- .. -
Honorable Joseph H. Mims, page 3 O-5470
It is, therefore, the opinion of this department that the commis-
sioners' court of Midland County, by complying with the provisions
of Article 3895, supra, may allow compensation to its justices of
the peace for ex officio services rendered by them.
Very truly yours
APPROVED AUG. 11, 1943 ATTORNEY GENERAL OF TEXAS
GROVER SELLERS
ATTORNEY GENERAL BY Fred C. Chandler
Assistant
ROK:db:ml Robert 0. Koch
Enclosures