Untitled Texas Attorney General Opinion

TEE ATTORNEY GENERAL
Aue~w 11. TBxAn
Thie Opinion
Ovrrruler 0 lnion
#O-722--O-12&-0-1529
bnorable I. Predecki Overruled by O-6616
aounty Auditor
&lrerton, Texas
Opinion No.~ 0.jQ1
Be: Compenmtlon of a 8p8ai8l
county judge of Galre8ton
county.
Your recent requert for an opinioir of thlr dopart-
ment on the above etated matter has been received.
19l&,.and
B. iiolaan of thlr county
‘home for ap roximatel twb
pregid.e an s udgr of t El
tfon at a 8peeial called
t, 1940, elected Hr. hl88el
l a 8 Special Judge hating
tters In the
ttention that
the County may or the senlaes
rendered by the
County Court.
ute that author
stated above.
full amount of
in January of t
Com~iAssi0ner.s'
illness.
Honorable I. Predecki, Page 2
Hay 2Tth, 1939, to Mr. Fred T. Porter, County
Attorney, Kaufman County, you rtate: ‘A
Special County Judge, whether lrervlng in a
general capacity or a probate ca city, only
rhould be corn enrated on the fol r owing ba8i8:
The annual ra Pary of the Judge of the County
Court divided by 365 and the quotiant multl-
plied by the number of da 8 actually rewed
by ruch special Juige. Til8 compensation
should be paid from the Offlcerr! Salary Fund
of ~the County. t
“Ou October Pth, 1940, I wrote and arked
for an opinion with reference to the salary or
compensation to be paid the Special Judge who
wa8 nominated by the Bar A8sociatlon to act
during the abrence, through lllnes8 of the
elected County Judge E. B. Holman 01 thir Coun-
ty.
-“In a ietter from you, signed by Mr. W. C.
Caaon, Admlnistratlve.A88istant I received
-boples of Opinions NOS. O-722,-6-123& and O-1529,
concerning the quertion submitted In my letter,
a oopy of which I a l80 lncl@ae.
‘Judge iiolman was detained at his home until
the 1st of Jan 1941. On yesterda hr.
ELssell H. harxi Special County Juz?ge pres-
ented to me hi8 claL IA the total amount ‘of
claiming this a8 his compensation from
it$$t*$ ? At 1940 through Uecember 31st 1940,
Inclusive. ‘I enclose s copy of nis bill:
“From the opinions received, I -understan d
th:.t tne special Judge is to be paid for each
day that he actually serves, and the compensation
to be arrived at as stated on Page 2 of 3pinion
No. O-722. AS NW. tiarktell renders nis bill for
every day, including sundsys and holidays from
August 21st, 1940, ne is requesting payment not
for the d;:ys tnzt he ?ctuclly served, but for
evCry dsy intervening between the first dzy of
his appointment until the last day.
ItI understand fro:n the ocinions rendered
th;t the 3p@cial Judge is entitled to all of the
gonorable I. Predeckl, Page 3
compensation received by the dul elected
Judge (in Galveston County, the Eounty Judge
receives &,750.00 per annum, and which he
received during his ab8enCe) and It ir nec-
lr lr a for
r y me to establi8h the number of
actual day8 for which he is to be pald.
‘1 therefore respectfully 88k your
‘. opinion to aid me in determining the actual
day8 that be beWed, ~whether the tinA i8
reprreented a8 8hown in the Hinuter of the
Count Court or whether it includes any minis-
teria 1 duty that deVOlVe8 on the County Judge
and of which there is no record in the Minute8
of the Probate or Civil Docketr. To rubrtan-
tiate or verify his claim, it would be neo-
l88a r thy 8t the County Clerk chow the number
bf day8 that wire actually 8erved by the
Special Judge and that the Clerk certlf to
this statement. The clain that Mr. MarEwell
- has presented is a statement covering the
entire perfod without any reference to Sun-
dape, holiday8, and when no Probate or Civil
matter8 came up fcir hearing. At tlmea thr
Speelal Judge qpeared at the office of the
County Judge and whether any dutle8 were per-
formed or not, I am unprepared to say and it
might be that 80m8 day8 the Special Judge
did not appear at all. In other words, what
constitutes in your opinion, a working day
for the Special county Judge.”
The claim of Honorable iiussell H. hsrkwell presented
the following claimagainst the County of Galveston for service'
rendered as special County Judge reads as follow-s:
January 23r&, 1?41.
11 days in August - - - - - - - - 4143.11
--
y%
honorable 1. Predecki, Page 4
4 months at $395.83 per month - - - - - $ 1583.32
Total amount of claim a8
provided by Statute .- - - - - $ 1726.43
Section 1 Article 5 of the State Conetitution pro-
vides In part a8 fo Plonr:
"* * *. When the judge of the County C&t
ir di8qwlifird in any cane pending in the~county
Court the partier intere8ted ma by consent, ap-
point a proper person to.try ra 1’
d care, or upon
their falling to do 80 a competent perron may be
appointed to try the muse In the county when It
18 ending in such mPnner a8 nay be prerorlbed
by Paw.”
Articles 1930, 19313 1932, 1933 and 1934, Vernon's
.¬ated Clril Statutes, read a8 follows:~
“Al%. 1930. When a judge of the county
oourt 18 disqualified, the partIe may, by
consent, app.oint a- proper. peroon. tomtry- ruch
oa8e.
“Art. 1931. Whenever a judge of the xoun-
ti Court 18 dirqualifled to try a civil oa8e
pending In the oounty oourt, and the parties
shall fail at the first term of the court to
agree upon a epeolal judge, the judge 8hall
certify his disquallfioation to the Governor
and the failure to agree upon another to try
the same, whereupon the Governor shall ap-
point some person, learned in the law to try
such case.
“krt. 1932. When a county judge is dis-
qualified to act in any probate matter, he
shall forthwith certify his disqualification
therein to the Governor, whereupon the Governor
shall appoint some person to act as special
judge in said case, wno snall act’ from term to
term until such disqualification ceases to ex-
ist. A special judge so appointed shall re-
ceive the same compensation as is now or may
gonorable I. Predeckl, Page 5
hereafter be provided by lar for regular
judges in similar cases, and the commls-
donero' Court shall, at the beginning of
each fiscal year, Include In the budget of
the county, a sufficient sus for the pay-
ment of thr special judge or judges lp -
pointed by the Governor to act for the
regular county judge.
.tryiG a casi, ghe parties or tihelr counsel
may agree upon an attorney Sor the trial there-
of; and, if the shall fail to apse upon an
attorney at or i: eforr the tins it Is called
for trial, .or if the trial of the Case i8
pending and the county judge should become
unable to act, or is absent, and a special
judge is selected who IS disqualified to pro-
oeed with the trial, and the parties thrn
fail to aeleot or agree upon a special judge
who Is pual%fied, the county judge or special
judge presiding shall certify the fact to the
~Governor Immediately whereupon the governor
shall appbint a specjal judge, qualified to
ttXer2 or%~e2i~0,``"m~ ~L~lrn~gF
shall prooerd to the trial or dispoe tion of
such case. Any special udge agreed upon or
appointed to try cases s Ll 1 receive the same
pay for his services as is provided by law for
county judges.
"Art. 1934. If a county judge fails to
appear at the time appointed for holding the
court, or should he be absentduring the term
or unable or unwilling to hold the court, a
special county judge may be elected in like
manner as is provided for the election of a
special district judge. Tne special county
judge so elected shall have all tne autnority
of the county judge while in the trial and
disposition of any case pending in said court
8Y'+B EbPn&~Sjft8~&. in3Ulif$J' ef~cfY~&r~$~sSi
held at any time during the term, t0 SUpi6821, supra, provides
oompensatlon for s?eclal district judges, who ere appointed by
the Governor, or elected, or agreed upon. There is no such
provision for paying special oounty judges In the above article.
Artlole 1933, supre, provides oompensatlon for speolal county
.-
387
. '.
aon. I. Predeokl, Page 13
j0ages appointed or agrerd upon, but does not mention or pro-
Tl4e oompcnsatlon for speolal ooudy judges who are eleoted by
the bar as euthorlzod by Artiole 1934, supra.
The above mentioned statutes, both the Code oi
In
&idnal Prooedure and the Civil Statutes, prwldlng oompensa-
tion rtx speolsl oounty judges, apparentlyapply in oaacs where
tha regular oounty judge Is oompensated on a tee basis. The
regular oounty judge 0r Gliteston County Is ocunpensets4 on an
snnual salary baslr. Seotlon 4, Artlolr 39120, provides In
arreot thst whom thr oounty ofilolals are oompensated on an
snnual salary basls It shall br the duty or all oitloera to
ahargo and oolleot in the mnner ruthorlzed by law all rers en4
samlesIons whloh rrr permitted by law to be assessed an4 oolleot-
04 ror all oftidal aerrlors perfOrms by them. As and when suoh
revs are oolleoted they shall be deposited In the Offloors’ Salary
run4 or runds provided in the Aot. We hare bern unable to rlnd
a4 Statute providing e.ompensatlon ra speolal oounty judgeseen-
ing ln that oapaolty in oountles where the regular oounty ju4ge
1s oompensated. on an annual salary barls.
It la a well settled law that statutes presoribing fees
ror pub110 ofrloeis are strlotly oonstrued;~snd henoe a right to
rees may not rest In lmplloatlon. (Tax. Jur. Vol. 34, p. 508;
MoCalla v. Clty of Rookdale, 246 S. W, 654; B&or4 v. Robln-
son, 244 S.W. 807).
Ad ofrloer n~3y-not~olalin or reeoh any money wlthout~
a law authorizing him to ‘do so, and olearly flxlng the amount
to whloh he Is entItled. (Tex. Jur., Vol. 34, &5;;; -34
v. Robinson, 244 5. PI. 807; MoLennan County 1.
S. W. 347; Duolos 1. Harris County, 291 S. VI. 611, arrirmeb
298 s. w. 417).
As above stated, we hare found no stdtute author-
lzing the peyment of oompenaetlon to 8 special county judge
in a county where the regular county judge Is oompenseted or.
an annual salary basis. Therefore, in dew Of the absence of
such statutory authority, we are of the opinion that no com-
pensation is provided for a speoial county judge in counties
where the rsgular county judge is oompensated on an annual
salary basis.
Our Opinion Nos. O-722, O-1234 and O-1529 are here-
by expressly overruled in so far as they conflict vilth this
opinion.
Trusting that the foregoing fully answers your in-
qulry, we are
Yours very truly
A:::R9 :jrb A’PTORNXY
GiWflAL OF TEXAS
By /a/ Ardell Williams
mIs Opinion Considered Assistant
and approve4 in limited conferenoe