Can a Texas county pay its constables different salaries, and can it pay one almost nothing?

Plain-English summary

A Donley County official asked the Attorney General about constable pay. Donley County is small, fewer than 4,000 people, with two constables: one for precincts 1 and 2 and one for precincts 3 and 4. The precinct 1 and 2 seat had sat at a nominal salary of $1 a year since 1969 and was filled for the first time in the last election. The commissioners court then set that constable's pay at $3,170 a year plus a vehicle allowance and retirement. The constable for precincts 3 and 4, a long-serving first-response officer in a rural area, made about $17,000. The new constable wanted equal pay. The county explained that the sheriff's office had been serving the warrants and citations in precincts 1 and 2, so that constable would likely serve no process and might spend only about 24 hours a year attending justice court.

The county asked three things: whether it could set the precinct 1 and 2 salary based on the "actual needs" of that precinct, whether two constables in the same county could be paid differently, and whether the salary it set was reasonable.

On the first question, the opinion said a constable's salary has to reflect the statutory and constitutional duties of the office, not just the precinct's apparent need. Constables are peace officers with many duties under the Code of Criminal Procedure, on top of serving process and attending justice court. Relying on the Vondy litigation out of Uvalde County, the opinion explained that a commissioners court cannot justify a token salary by pointing to a lack of need for the constable's services. The fact that the sheriff had been doing the process-serving did not, by itself, justify shrinking the constable's pay. The opinion added that a commissioners court generally cannot strip the constable's process-serving duty and hand it permanently to the sheriff, because it is the courts, not the commissioners court, that choose which officer serves a given process; only for process the commissioners court itself issues may it pick the sheriff or a constable.

On the second question, the opinion concluded that salaries may differ between precincts. If one constable has extra assigned duties (like first response) or one precinct genuinely needs more law enforcement, the commissioners court may set different salaries, so long as the circumstances reasonably require the difference and each salary is itself reasonable. On the third question, the opinion declined to say whether the specific salary was reasonable, because the reasonable amount is a fact question committed to the commissioners court's discretion and reviewable only for abuse of discretion.

Currency note

This opinion was issued in 2001. Subsequent statutory amendments, court decisions, or later Attorney General opinions may have changed the analysis. Treat this page as historical context, not current legal advice. The Local Government Code and Code of Criminal Procedure provisions on constable duties and county salary-setting have been amended since 2001, so verify the current statutes before relying on any specific rule mentioned here.

What the opinion meant for those who asked

County commissioners courts (what the opinion held for them): The opinion held that the court has broad discretion to set constable salaries and may set different amounts for different precincts where the circumstances reasonably require it and each salary is reasonable, but that it must tie each salary to the office's statutory duties and cannot justify a token salary by the sheriff covering process or by a perceived lack of need.

Constables (what the opinion held for them): The opinion held that a constable's pay must reflect the duties the constitution and statutes impose on the office, and that under the Vondy line of cases a nominal salary set without regard to those duties can be an abuse of discretion.

Sheriffs (what the opinion held for them): The opinion held that although both the sheriff and constable have a statutory duty to serve process, a commissioners court generally may not reassign all process-serving to the sheriff, because the courts choose the serving officer.

Common questions

Can a Texas county pay its constables different salaries?
Yes. The opinion concluded that salaries may differ between precincts if the circumstances reasonably require it (for example, extra assigned duties or a greater law-enforcement need) and each salary is itself reasonable.

Can the county pay a constable almost nothing because the sheriff does the work?
The opinion concluded that is not an adequate basis. A constable's salary must reflect the statutory and constitutional duties of the office, and the Vondy cases treated token salaries set without regard to those duties as an abuse of discretion.

Who decides whether a constable salary is reasonable?
The opinion explained the reasonable amount is a fact question within the commissioners court's discretion, which a court may review only for abuse of discretion. The AG would not set the figure.

Can the commissioners court take process-serving away from a constable and give it to the sheriff?
The opinion concluded it generally cannot, because the district and county courts, not the commissioners court, choose which officer serves process; only for process the commissioners court itself issues may it direct the work to the sheriff or a constable.

Background and statutory framework

Article V, section 18 of the Texas Constitution provides for the office of constable, and article XVI, section 61 requires commissioners courts to compensate constables on a salary basis. Tex. Const. art. V, § 18; art. XVI, § 61; see Tex. Loc. Gov't Code Ann. ch. 152 (Vernon 1999 & Supp. 2001). Both sheriffs and constables must execute and return process directed to them, Tex. Loc. Gov't Code Ann. §§ 85.021(a), 86.021 (Vernon Supp. 2001), and the constable must attend each justice court in the precinct, id. § 86.021(e). Process is directed to any sheriff or constable, Tex. R. Civ. P. 15, and only for process the commissioners court itself issues may that court choose the officer, Tex. Loc. Gov't Code Ann. § 81.022(a) (Vernon 1999). Constables are peace officers with duties under the Code of Criminal Procedure. Tex. Code Crim. Proc. Ann. arts. 2.12(2), 2.13, 6.05 - 6.07 (Vernon 1977 & Supp. 2001).

The salary analysis rested on the Texas Supreme Court's summary in Ector County v. Stringer, 843 S.W.2d 477 (Tex. 1992), and on the Vondy litigation, Vondy v. Comm'rs Court of Uvalde County, 620 S.W.2d 104 (Tex. 1981) (Vondy I), and Vondy v. Comm'rs Court of Uvalde County, 714 S.W.2d 417 (Tex. App.-San Antonio 1986, writ ref'd n.r.e.) (Vondy II), which held that a mandatory ministerial duty to set a reasonable salary exists and that a $40-per-month salary set without regard to statutory duties was unreasonable as a matter of law. See also Douthit v. Ector County, 740 S.W.2d 16 (Tex. App.-El Paso 1987, writ denied); Comm'rs Court of Houston County v. Rodgers, 691 S.W.2d 753 (Tex. App.-Tyler 1985, no writ); Bomer v. Ector County Comm'rs Court, 676 S.W.2d 662 (Tex. App.-El Paso 1984, writ ref'd n.r.e.). On a commissioners court's limited power to reassign a constitutional officer's duties, the opinion cited Comm'rs Court of Titus County v. Agan, 940 S.W.2d 77 (Tex. 1997). On differing salaries for equivalent precinct officers, it relied on Attorney General Opinions JM-770 (1987) and DM-51 (1991).

Citations

Constitutional and statutory provisions:

• Tex. Const. art. V, § 18; art. XVI, § 61
• Tex. Loc. Gov't Code Ann. §§ 81.022(a), 85.021(a), 86.021, 86.021(e), ch. 152 (Vernon 1999 & Supp. 2001)
• Tex. R. Civ. P. 15
• Tex. Code Crim. Proc. Ann. arts. 2.12(2), 2.13, 6.05 - 6.07 (Vernon 1977 & Supp. 2001)

Cases:

• Ector County v. Stringer, 843 S.W.2d 477 (Tex. 1992)
• Vondy v. Comm'rs Court of Uvalde County, 620 S.W.2d 104 (Tex. 1981)
• Vondy v. Comm'rs Court of Uvalde County, 714 S.W.2d 417 (Tex. App.-San Antonio 1986, writ ref'd n.r.e.)
• Douthit v. Ector County, 740 S.W.2d 16 (Tex. App.-El Paso 1987, writ denied)
• Bomer v. Ector County Comm'rs Court, 676 S.W.2d 662 (Tex. App.-El Paso 1984, writ ref'd n.r.e.)
• Comm'rs Court of Houston County v. Rodgers, 691 S.W.2d 753 (Tex. App.-Tyler 1985, no writ)
• Comm'rs Court of Titus County v. Agan, 940 S.W.2d 77 (Tex. 1997)

Prior Attorney General opinions:

• Tex. Att'y Gen. Op. Nos. H-595 (1975); JC-0214 (2000); DM-273 (1993); JM-770 (1987); DM-51 (1991); JM-1019 (1989)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/john-cornyn/jc-0389
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2001/jc0389.pdf

Original opinion text

Best-effort transcription from the official scanned PDF. Minor character-level errors from the source OCR have been corrected; the linked PDF is authoritative.

OFFICE OF THE ATTORNEY GENERAL . STATE OF TEXAS

JOHN CORNYN

June 19, 2001

The Honorable Kaye Messer
Donley County Attorney Pro-Tem
220 South 10th Street
Memphis, Texas 79245

Opinion No. JC-0389

Re: Whether a commissioners court is required to pay the same salary to each of the county's constables (RQ-0337-JC)

Dear Ms. Messer:

You ask whether the Donley County Commissioners Court may set a salary for the constable of precincts 1 and 2 based on the actual needs of those precincts, and whether the salaries for different constables in the same county may differ. The salary of a constable must reflect the duties imposed upon him or her by statute, even if the sheriff is expected to serve process in the constable's precinct. In some cases, the responsibilities of the constable in one precinct of the county are more extensive than those of a constable in another precinct because the first constable has been assigned duties in addition to a constable's statutory duties, or because one precinct has a greater need for law enforcement activities than does another precinct. Under such circumstances, the salaries may vary to reflect those differences in workload, as long as each salary is reasonable. You also ask whether the salary set by the commissioners court for the constable of precincts 1 and 2 is reasonable. The specific amount that constitutes a reasonable salary is a fact question within the discretion of the commissioners court, subject to judicial review for abuse of discretion.

Donley County has two justices of the peace, one elected to precincts 1 and 2 and the other to precincts 3 and 4. See TEXAS STATE DIRECTORY 339 (44th ed. 2001) [hereinafter DIRECTORY]. There are also two constables, serving respectively in precincts 1 and 2 and precincts 3 and 4. See TEX. CONST. art. V, § 18 (in each county with a population of less than 18,000, commissioners court may divide county into not more than four precincts); DIRECTORY, supra, at 339 (population of Donley County is fewer than 4,000).

You inform us that in the last general election the position of constable for precincts 1 and 2 was filled for the first time since 1969, when the commissioners court set an annual salary of $1.00. After the election, the commissioners court set an annual salary of $3,170, plus a vehicle allowance of $100 per month and retirement, for the constable of precincts 1 and 2. The constable for precincts 1 and 2, however, wishes to receive the same compensation as the constable for precincts 3 and 4, whose annual salary is $17,146.91. You explain that the sheriff's office has performed the duties of the constable for precincts 1 and 2, serving the warrants and citations that both a constable and sheriff are required to serve when directed to that officer by legal authority. See TEX. LOC. GOV'T CODE ANN. §§ 85.021(a), 86.021 (Vernon Supp. 2001) (sheriff and constable shall execute and return process that is directed to the constable or sheriff by a lawful officer); see also TEX. R. CIV. P. 15 (writs and process shall be directed to any sheriff or constable within the state); Tex. Att'y Gen. Op. No. H-595 (1975) (sheriff does not have exclusive authority to execute process). Thus, you suggest that the constable for precincts 1 and 2 will serve no process during his tenure. The constable "shall attend each justice court held in the precinct," TEX. LOC. GOV'T CODE ANN. § 86.021(e) (Vernon Supp. 2001), but based on information provided by the justice of peace for precincts 1 and 2, you believe that the constable may be required to attend justice court for no more than 24 hours per year.

(Footnote: Letter from Honorable Kaye Messer, Donley County Attorney Pro-Tem, to Ms. Susan Gusky, Chair, Opinion Committee (Jan. 5, 2001) (on file with Opinion Committee) [hereinafter Request Letter].)

You state that the position of constable for precincts 3 and 4 has been filled and utilized for over 20 years. "The constable for precincts 3 and 4 is a 'first response' officer," that is, the sheriff's dispatcher notifies him immediately in every matter requiring a law enforcement officer in the area. Unlike precincts 1 and 2, precincts 3 and 4 cover a rural area some distance from the sheriff's office, and the constable located in this precinct performs many duties in addition to serving process and attending justice court hearings.

You ask whether the Donley County Commissioners Court may set a salary for the constable of precincts 1 and 2 based on the "actual needs" of that precinct. You also ask the following questions:

2. Can the salaries for different constables in the same county differ?

3. Is the salary set by the Donley County Commissioners court for the newly-elected position reasonable?

Article V, section 18 of the Texas Constitution provides for the office of constable, and article XVI, section 61 requires the commissioners courts of all counties to compensate constables on a salary basis. TEX. CONST. art. V, § 18; art. XVI, § 61; see also TEX. LOC. GOV'T CODE ANN. ch. 152 (Vernon 1999 & Supp. 2001) (authority of commissioners court to set salaries of district, county, or precinct officer of employees). The Texas courts have issued a number of opinions on the commissioners courts' responsibility to set salaries for county constables. See Ector County v. Stringer, 843 S.W.2d 477, 479 (Tex. 1992); Vondy v. Comm'rs Court of Uvalde County, 620 S.W.2d 104, 108 (Tex. 1981); Douthit v. Ector County, 740 S.W.2d 16, 17 (Tex. App.-El Paso 1987, writ denied); Vondy v. Comm'rs Court of Uvalde County, 714 S.W.2d 417 (Tex. App.-San Antonio, 1986, writ ref'd n.r.e.); Bomer v. Ector County Comm'rs Court, 676 S.W.2d 662 (Tex. App.-El Paso 1984, writ ref'd n.r.e.). In its most recent opinion on constables' salaries, the Texas Supreme Court summarized the law as follows:

One of the duties the constitution entrusts to the discretion of the commissioners court is the setting of constables' salaries. Tex. Const. art. XVI, § 61. In Vondy v. Commissioners Court, 620 S.W.2d 104 (Tex. 1981), we held that this provision imposes a mandatory, ministerial duty on the commissioners courts to set a reasonable salary. Id. at 109. Thus, while the district court may order the commissioners court to carry out its constitutional duty to set a reasonable salary, the district court cannot substitute its discretion for that of the commissioners court by making that determination itself. Id. Once the commissioners court acts, the district court may review the commissioners' orders to determine if they are arbitrary, or otherwise constitute an abuse of discretion. Id.

Stringer, 843 S.W.2d at 479-80.

Thus, the commissioners court has broad discretion to set constables' salaries, but there are limits on the court's discretion as indicated by judicial decisions finding that the commissioners court had abused its discretion in setting the constable's salary. In Vondy v. Commissioners Court of Uvalde County, 620 S.W.2d 104 ("Vondy I"), the constable, Mr. Vondy, sought a writ of mandamus against the commissioners court to compel it to set a reasonable salary for his office as constable of precinct 6, Uvalde County. Id. at 104-05. The Texas Supreme Court found that the commissioners court could not refuse to set a salary for the constable. Id. at 109. It determined that the district court should have granted the mandamus sought by Vondy. Id.

The trial court issued a writ of mandamus ordering the commissioners court to set a reasonable salary and the commissioners court set a salary of $40.00 per month. Vondy, 714 S.W.2d at 419. It thereafter sought to be discharged from any further duties under the writ and was discharged by the district court. Id. Vondy's appeal of this ruling was heard by the San Antonio Court of Appeals in Vondy v. Commissioners Court of Uvalde County, 714 S.W.2d 417 ("Vondy II"). Id. The commissioners court argued that $40.00 per month was a reasonable salary "under the circumstances," which included (1) the lack of funds available to pay Vondy; (2) that Vondy knew when he sought the job that there was no salary; (3) that the precinct 6 area had adequate law enforcement protection so there was no need for Vondy's services; and (4) that Vondy's concurrent involvement in a private security business presented a conflict of interest in having him serve as constable. Id. at 421.

The San Antonio Court of Appeals rejected these factors as not providing an adequate basis for determining a reasonable salary. Id. at 425 (motion for rehearing). It pointed out that constables are peace officers, with many duties imposed upon them by the Code of Criminal Procedure, in addition to their duties of serving process and attending upon the justice court under section 86.021(e) of the Local Government Code. Id.; see TEX. CODE CRIM. PROC. ANN. art. 2.12(2) (Vernon 1977 & Supp. 2001) (constables are peace officers); see also id. arts. 2.13 (Vernon 1977) (duties of peace officers); 6.05 - 6.07 (Vernon 1977 & Supp. 2001) (prevention of threatened injuries and death). The commissioners court did not consider the duties imposed upon the constable by statute, evaluate the work performed by or required of Vondy or otherwise deliberate about what would be a reasonable compensation for him, but considered only the four factors rejected by the court, in particular, the county's lack of need for Vondy's services. Vondy II, 714 S.W.2d at 422.

The commissioners court may not "attempt to restrict or abolish a constitutionally established office by refusing to reasonably compensate the holder of such office," nor may it "attempt to abolish or restrict the office of constable by refusing to allow or by preventing the elected official from performing those duties required of him." Id. at 422. In view of the numerous duties imposed by law upon the constable, the court found that the salary of $40 per month, or $.20 an hour was unreasonable as a matter of law. Id. at 421; see also Douthit, 740 S.W.2d at 17 (where constable did not serve process or attend court sessions but responded to summons concerning thefts, murders and breaches of the peace, commissioners court abused its discretion in setting salary of $1.00 per year); Comm'rs Court of Houston County v. Rodgers, 691 S.W.2d 753, 756 (Tex. App.-Tyler 1985, no writ) (constable's salary of $1.00 per year was the equivalent of no salary at all); Bomer, 676 S.W.2d at 664-65 (where constables performed no work, no issue was raised as to reasonableness of salary of $20.00 a month).

We turn to your first question, whether the Donley County Commissioners Court may set a salary for the constable of precincts 1 and 2 based on the "actual needs" of that precinct? Vondy II tells us that the commissioners court must be able to articulate a reasonable basis for the salary it sets for the constable. Furthermore, it rejects as inadequate the four factors relied upon by the Uvalde County Commissioners Court in setting the constable's salary, that is, (1) the lack of funds; (2) the constable's knowledge that no salary had been set for the office; (3) the adequacy of law enforcement protection such that the constable's services were not necessary; and (4) the constable's involvement in a private security business. The fact that the sheriff's office has performed the duties of the constable for precincts 1 and 2 so that the constable's services are unnecessary is not an adequate basis for setting the constable's salary. Vondy II, 714 S.W.2d at 425. To the extent that you base the "actual needs" of precincts 1 and 2 on the understanding that the sheriff and not the constable will serve process, the "actual needs" of precincts 1 and 2 are not relevant to setting the constable's salary. The constable's salary must reflect his statutory and constitutional duties. Id. at 421.

If the commissioners court could authorize the sheriff to serve all process in precincts 1 and 2, removing that function from the constable and transferring it to the sheriff, we believe it could overlook the constable's duty to serve process in setting his salary. See id. at 422, n.3 (noting that the Uvalde commissioners court did not attempt to assign any of Vondy's duties to other law enforcement agencies and questioning whether the commissioners court had authority to do so). The commissioners court has some authority to decide which county officer should perform a specific county function, but if the legislature has exclusively delegated a particular duty to a constitutional county officer, the commissioners court may not transfer it to another officer. See Comm'rs Court of Titus County v. Agan, 940 S.W.2d 77, 80 (Tex. 1997). Although both the sheriff and the constable have a statutory duty to serve process, the commissioners court may not assign all service of process to the sheriff, because the district and county courts, and not the commissioners court, choose the officer who serves process. See TEX. R. CIV. PROC. 15; Tex. Att'y Gen. Op. Nos. JC-0214 (2000) at 4; DM-273 (1993). Only when the commissioners court issues the process necessary to execute its powers and duties, may the court choose whether to direct the process to the sheriff or a constable of the county. See TEX. LOC. GOV'T CODE ANN. § 81.022(a) (Vernon 1999).

It is however possible that the constable of precincts 3 and 4 may have more extensive duties than the constable in precincts 1 and 2 because he has been assigned duties in addition to his statutory duties, such as being a "first response" officer, or because precincts 3 and 4 have a greater need for law enforcement activities than do precincts 1 and 2. In setting the salaries of constables, the commissioners court may consider these differences in duties assigned to and performed by constables of different precincts.

You next ask whether the salaries for different constables in the same county may differ. This office has recognized that circumstances might exist "in which certain precinct officials holding equivalent positions might be compensated in differing amounts." Attorney General Opinion JM-770 determined that the commissioners court might prescribe different salaries for the constables of different precincts if the circumstances in each precinct reasonably required different salaries and if each salary is in itself reasonable. Tex. Att'y Gen. Op. No. JM-770 (1987); see also Tex. Att'y Gen. Op. No. DM-51 (1991) at 2 (it would not be per se unreasonable for the commissioners court to base the pay scale for justices of the peace on the volume of cases filed in their respective courts). Accordingly, the salaries of constables in different precincts may differ if the circumstances in each precinct reasonably required different salaries and if each salary is in itself reasonable.

You finally ask whether the salary set by the Donley County Commissioners Court for the newly-elected position is reasonable. We cannot advise you whether the salary set for the constable of precincts 1 and 2 is reasonable. The specific amount that constitutes a reasonable salary is a fact question within the discretion of the commissioners court, subject to judicial review for abuse of discretion. See Stringer, 843 S.W.2d at 479; Tex. Att'y Gen. Op. Nos. DM-51 (1991) at 2; JM-1019 (1989) at 2; JM-770 (1987) at 3.

SUMMARY

The salaries of constables must reflect the duties imposed upon them by statute, even if the sheriff is expected to serve process in a particular constable's precinct. In some cases, the responsibilities of the constable in one precinct of the county are more extensive than those of a constable in another precinct because the first constable has been assigned duties in addition to a constable's statutory duties, or because one precinct has a greater need for law enforcement activities than does another precinct. Under such circumstances, the salaries may vary to reflect those differences in workload, as long as each salary is reasonable. The specific amount that constitutes a reasonable salary for a constable is a fact question within the discretion of the commissioners court, subject to judicial review for abuse of discretion.

Yours very truly,

JOHN CORNYN
Attorney General of Texas

ANDY TAYLOR
First Assistant Attorney General

SUSAN D. GUSKY
Chair, Opinion Committee

Susan L. Garrison
Assistant Attorney General - Opinion Committee