Gerald C. E%nn Attorney General

Donorable Euaene Bra&v Assistant Co&y Attoiney Eunt county Greenville, Texas

Dear Sir: opinionNO. o-2973 Be: Salaries of county officers of .EZunt County,Texas

Your request for opinionhas been received and carefullyconsidered by this Uepartment,.,\Be quote from your request as foilows:

, "I respeatiullyrequest opinion from you

as to salaries to be paid County Cffloers in Hunt County,Texas, such facts as are neoassary ,;_+_.,:, .::,.q...ar.e

,,,. 8 .., ,,,.. ~,.. et mat k&wdn. ..~.~~.~,~q~~sk.,~,~~..~~~p~~~:.,~~~ I :.;:; -. ~* .i~~_

Taunt County,Texas, aoaording to the'laat preaeding FeUeral Censushas a population of' @,717. The total taxablevaluation for 1940 is $20,1&2,000. All County Officers are and have been compensatedon a salarybasis slnoe the General Salary Law went into effect in 1936. Al.1 preolnot offloere are still compensatedon a fee basis. During the year 1935 all County Officers except County Judge earned fees of office in excess of $4,250.00 per year. county Judge earned Sees of $3,100.00 during that year. The earned tees of'the County Treasurerduring the year 1935 were in excess of $2,000. The orpopulation of Hunt County ,aaaordingto the 1930 Censuswas 49,016.
"

. . . Tn~er the above law and state of facts quoted it is i;u7

opinion that itwould be the duty of the CommissionersCourt to set salaries of !;heriff,

Tax Assessor and Collector, County Clerk, District Clerk. CountyAttorney at anHonorable Xu(;ene Brady, Page 2

annual salary of not less'than $4,250.00 par year and not more than $&,292.50per year. That it would be the duty of said court to set the County Judge's Salary at a salary of not 166s than $3,000.00per year snd not mope than $&,292.50 per year.
NArtlcle 3887aprovides: 'In all oountiee in the state of Texas having a population of more than 48,540 and less than 48,800 acaording to the last preceding or any future ?ederal Census where the CommissionersCourt shall have determined or shalldetermine to compensate the CountyAttoneg of such countyupon an annual salarybasis according to law, such Court shall fix the salary of such CountyAttorney at not to exoeed $Z,&OO.OOper annum.' This artlclswa6 passed in 1937, Forty Fifth Legislature, Seaond CalledSession. It ismy Information that this Article never beoams a law for the reason that it was passed at a special session of the Legislature and was not within the Governor's aall for that 6peOial 6e88iOn.but notwlthetanding that I m -of'the~oplJl~~~ .%&bo,gai&,~~ale::,~ul~..ag~~.~ :~ '~ " the less be inoperative for reaaone set out and d5.a&seed below.
"Article3883dprovides: Section 1: 'That from and after January 1, 19&O, being the effeotive date of this Act, in all oOUnti0S in this State having a population of not less than 48,530 and not more than 48,930 acaording to the last preaeding Federal Census, the CommissionersCourt shall have the povler and authority to flx the Sdaries of the Shari??, the tax assessor-collector, the aounty clerk, the county judge, thedistriot clerk, and the oounty attorney;provided, however, that the salary of the sheriff shall not be flxed in excess of the sum of *J+,250 per annu'c,

nor less than the SW of 33,600 per annum; the salary of the tax assessor-collectorshall not be fixed in excess of the sum of $&,OOO per annum, nor less than the sum Of $3,600; the salary of the County clerk shall not be fixed in excess of the sum of $4,000 per annum,nor less than the sum of $3,300.- :'!onorable 3qene Brady, rage 3

PEIT ~dlUI?l; the salary of the county judge shall not be fixed in excessof the sum of $3,200 per annuT nor less than the sum of $2,700 per annum; the salary of the district olerk shall not be flred in excess of the sum of $3,300 per annum, nor lese than the sum of $2,700 per annum; the salary of the aounty attorney shallnot be fixed in exoess of the sum of $3,000per annum nor less~than the sun of $2,700 per annum.'

"It Is my opinion that both of the last two quoted articles are unoonstitutionalin that they are in fact speoial laws even though they purported to be General Lawe, as examination of the oen6u6 figures for 1930 show that at the time theywere passed they applied to only one aounty,Bowl8 County,and there exist6none66onable ba6i6 in faot for suoh a olassifioationa6 set out by you in your opinionNo. O-1020 and O-899.
*I also believe that they should be held nnoon6titutionalunder following oase6:

"wood ~6. &U-f6 123 SK (2d) 429. "Brownfieldva. and many other oases Independent SohoolDiatriot,
Tongate, 109 SW (26) 352.
referred to in these opinions.

"For these reasons I believe thatArtioles j88jd and 3887a referred to above are unoonstituMona1 and that it would be neaessary to go baok to the General laws as set out above for the deter: &nation of salaries to be paid County Offiaers in this county.
"Article 1645 provide,s for the appointment of CountyAuditor, 'who shallbe compensatedfor his servic,ss

$125 for eachmillion dollars or major yorticn thereof on the assessedvaluation. The annual salary to tax Toll.' be co,mputed fro:%the last approved 'As set out above the last approved tax.- Honorable ?ugeneBrady, Page 4

roll of thla county Is $20,142,000. Therefore under this law the County auditorwould be antitled to aompannsatlon In the amount of $2,500 per year. *Article 1645d, Section 1 provides *In all oountlee in this state having a population of not less than 45,000 inhabitantenor more than 50,000 inhabitantsacoordlng to the last Federal Census as same now exists or'mayhereafter exist the CountyAuditor shall receivean annuaI salary from county funds of $4,000 to be paid in equal monthly lnetallmentsout of the GeneralRevenues of the county.' This aat was passed by the FortyFifth Legislature In 1937.
WArtlcle 1645e, Section 1 provldear 'That in countleehaving a population of not lean than 46,600 nor$more than 49,000 aoaordl.ug to the lart preaedlng Be6oral Cansus the oompeneatfenof ea& countyAuditor shallbs 83,600.t This aat bmmme efteotlre October 25, 1937.
*For the rea(1ona

met out above It ie my opin- Zion:,m*..b&&G,~:~:*~ Ja8.t..*m.:.

pufbw.:m.*&*Re.L-, .,, In taot apeofal lawa an&are theeefoxvWW@~~~~Utional and that itwould be necessary to 

### rely on drtlcle 1645 as set out above In settfng the salary of the CountyAuditor of this county. , *Article 3943which was etreotlve on August 24, 3.935,

provides: 'That the Commlsslonaallowed to the County Trearurer ahall not exceed $2,000 annually. This article taken in connectionwith Artlole 3912e quoted above sets the limitwlthin whloh the CommlsslonereCourtmay set the Tre~urt3r’a Salary. It his fees in 1935 were in exeea8 of #2,000 It 18 my opinion that itwould bs the duty of the CommissionoreCourt under suah law to set the salary oi the County Treasurer at $2,000 per year.
"1 shall appreciatean opinion from your office as.to the amount of'compensationthat should be allowed the County Officers lieted above in Buntr--

county. I will appreciatehaving this opinion before the first of January as there are so many special laws intowhich this county has dropped since the laat Federal Census that the CommissionersCourt is at a loas to settle the salaries that should be paid and desires to settle this matter before the first of January.
"Please send me copies of your.OpinlonaNo. O-1020 and O-899."
Article 3912e, Section 13, Vernon'sAnnotated Texas Civil Statutes, reads in part a8 follower

The CommLaaionere~ Court In oountleshav-

.- ing a population of twenty thourand (20,000) lnhabitants or more, and less than onehundred and .nlnstpThousand (190,OQO)inhabitante according to the last preceding Federal Cenaua, la hereby authorizedand it shallbe Its duty to fix the aularles of all the followingnamed officera, towltr sheriff, assessor end collector of taxes, oounty judge,.countyattorney, including orfiainal district attorneys and oountp atCorneyswho per- $qrplthe,,dnti.aa,

~..~.~A,~b.,.,a~~~ysi;,ldl~$~~',-','- .:' alerk, oounty clerk, t?xqnarer, hide and a inspector. Eaah of said officera shall be paid Inmoney an annual salary In twelve (12) equal Installments of not less than the total sum ear%- .ed aa oompensationby him in his official oapaoltg for the fiscalyear 1935, and not more than the maximum amount allowed suoh officerunder laws existing;

on August 2l+,

1935;

. . . and provided that in counties having a po ulatlon of thlrtyseven thousand five hundred P37,500) and less than sixty thousand (60,000)aooordlng to the last preceding Federal Cenaua, and hating an aaeeaeed valuation in exaess of TwentyEAllllon(420,000,000.00) Dollars, according to the last precedingapproved tax roll of suoh county, the maximum amount dlOWed such officersas salaries,may be increased one (1s)per cent for each One Xilllon ($1,000,000.00) Dollars valuation or fractionalpart thereof, in excess.of said Twenty l:;llllon ($20,000,000.00)Dollars valuation over and above themaximum amountiionorable Eugene Brady, Page 6

allowed such officer under laws existlng,on JQuwst 24, 1935.” Article 3883, Vernon's AnnotatedTexas Civil Statutes, reads In part as r0n0n.3:

"Exceptas otherwiseprovided in this Ad, the annual fees thatmay be retained by precinct, county and district officersmentioned in this Article shallbe as follows:
"

. . .

- “3. In counties containingas many a8

thirty-seventhousand five hundred and one (37 501) and not more than sixty thousand (60,- OOO! inhabitants, or containinga olty or ttnm of over twenty4lve thousand (25,000) luhabitants: County Judge,.Distrlctor Criminal DLstrlctAttorney, Sherlrf, County Clerk, County Attorney, District Clerk, Tax Collector,Tax Assessor, or the Assessor and Collector of Taxes, Thirty-tireHundred (#3500.00)Dollars meh.;~Ju~ti~e:.:&

4the,,Saaer~

:md .~Oonrtab&i~d&gh~~ur~- ~~..' Hundred ($1800.00)~Dollarseaoh. (As ameuded Acts 1930, &..lst

Leg., 4th C.S., p. 30, oh. 20; Acts 1931, l&&d Leg., p. 822, oh. 3401 Aats 1933, 43ra Leg., p. 731, oh. 220, 1 1.)"
Article 3891,Vernon'sAnnotated Texas Civil Statutes,reads in part as follows:

nEach offlcer named In thls~Chapter shall first out of the currentrees of his office pay or be paid the amount alloweU him under the provisions of Article 3883, togetherwith the salaries of his assls,tants and deputies, and authorized expensesunder Article 3899, and the amount necessary to cover aosts of premlurn onwhatever surety bond may be required by law. If the current ieea of such office collected in any year be more than the amount needed to pay the amounts above specified, sane shallbe d.eemed excess fees, and shall be disposed of in the ma,nner hereinafter provided.
”

. . *Zonorable Eugene Brady, Page 

### 7

*In counties containing seven thousand, tire hundred a.8 meny aa thlr*- 

### and one 

### (37 501) and not more than sixty thousand (~o,ooo~,or containinga city of over twenty-fivethousand (25,oOO) Inhabitants,district and oounty offlcers named herein shallretain one-thirdof such excess fees until such one-third, together with the amount specified in Article 3883, amounts to Forty-two Hundred and Fifty Dollars ($&250).

. .



### rull n(As amended Acts 1930, 4lst Leg., 4th C. S., p. 30, oh. 20; Aote 1931, 42nd Leg., p. 

### 870, oh.. 

### 368;Aots 

### 1933,43rd 

### Leg.,P* 734,oh.220, I 2; Acts 1935, 44th Leg., 

### pa 752,oh. 327, t 1.)"
The last two 

### abovequotedprovisions of law w?re in force and effeot onAugtut 24th, 1935.

C We quote fmm the ease of Baoogdoohee Oounty vs.

Wnder (BeaumontCourt of Olvll Appeals) 140 SW (2d) 972, (writrerused), as follow8:

..,,3ll~.~.roll~,.,r*a~

.ax*~>.rl~out &aput*r..;.i.,v.~ Appelloe, Windor, was the duly eleoWd, q&ifled and aotlng County Glemk of Raoogdoohes County during the years 1937 and 1938. lkoogdoches Countywas under the salary act law, Article 3912e, section 13, Vernon'sAnn. Cl~ll Statutes. and Article 3S91.R.C.S.. Vernon?6

- earned es-oompensation o? his ofiloe the au&-of



### $3.286.16. On January 

### 13, 1936,at a 

### regular session of the Colmniesloners* court, an ardor was entered by said court fixing appellee*s salary at $3,286.16 the amount earned as salary by the county judge of said oounty In 1935. Later In said month, January 31st, at a oailled .session.ofsaid court,his salarywas fixed at ,';3,350 per year. On January 11, 1937, the cotissioners' court in regular session fixed his salary at $3,000, for that year, and on January 10, 1938, said court fixed his salary:ionorable'Eugene aradg, PatIe8

at $3,000 for said year. This was $286.16 lees than theminimum salary f'or 1935, and 8350 less than the salary as fired by the order of January 31, 1936. Appellee prayed the difference between the il udgment for $572.32, 3,000 per pear for 1937 and 1938, and the minimum or $3,286.16 as fixed by the order of January 13, 1936, or In the alternative for judgment for $700 If the order of January 31, 1936, passed at the called sessionbe found proper. :$572.32. The judgmentwas for

"We think the order fixing appellee's salary made at the regular term of January 13, 1936, was in accordancewith the law, and that the amount then fixed as the annual salary of appellee, $3,286.16,under the facts and the'lawwas proper, and is controlllne. here. Article 79120. seotion

Opinion No. O-2582 of thisdepartment dealtwith a situation relative to the salaries of the officers of Travis County, Texas,where the population of that county had increased Pron 77,777 Inhabitants in 1930 to 110,686 inhabitantsaaoording to the 1940 census. This opinionholds that the change in'the population of Travis County, as shown by the Iredoral Census of 1940, has no efPect. whatever upon the salaries of the district and county offioersnamed inArticle 3912e, Section 13, V.A.C.S.. and that the .maximuc: salary to be allowedP :;onorabj.e -::ui;;ene

Brady, PaAe 9

such officer was the meximum allowed the officer by laws existing August 2L, 1935, to-wit, $&,750.00. We encloseherewith a copy or said opinion.

Opinion Ho. 0-2560 of this department holds that the commissioners court of Limestone County, Texas, should fix the salaries of the ofricials of said countynamed in Artiole 3912e, Sec. 13, V.A.C.S., for the year 19&l; that the minimum salary of each suoh offioer oannotbe lees thsn the total cum earned as compensationby him in his orrioial oapaoltyfor the fiscalyear 1935 and that the maximum salary of each abovementioned officers oould be the maximum amount allowed him under laws existingAugust 24, 1935, plus one per oent for each one million dollarsvaluation or fractionalpart thereof in excess of rlfteenmillion dollars. This opiniondealt with a situation viheretherewas a deoreaae in population. We enclose herewith a copy or said opinion.

We agree with you that Article 3887a, Vernon’s Annetated Texas Civil Statutes, ia a 1ooe.l or epeoial law attempting f- to regulate the arrairs of a oouoty and therefore unoonstltutlonal. The populationbraokets provided by said aot applied to only one county in the State of Texas aooordlng to the Federal Census of 1930,,

that county then being Bode County,Texas, and nom
., ., .,~

., appx-i es' .to,; aa :~&&$

."'e~y.“~txe ~'stPtcr~.~;*f:.la~~~~,,~~~~~~'~.to. the 1940~lrederal

Census, that countybeing Hunt County,Texas. As a basis for our holding we refer you to the authorities oited in OpinionsNos. O-899 and 1020 of this department,whioh are enclosedherewith.

Y!eagreewith you that the section of Article 38fijd, Vernon'sAnnotated Texas Civil Statutes, cited by you fn your letter, is a local or apeoial law attemptingto regulate the affairs of a county and thereforeunconstitutional. The population bracketsprovided by said seotion of the act applied to only one county in the State of Texas according to the 1930 Federal Census, that oountp then being Bowie County,Texas, and now applies to only one county in the State of Texas according to the 19&O Federal Census, that oountybeing 1iun.t County, Texas. As a basis for our holding we refer you to OpinionEo. O-1020 of thisdepartment which specificallypassed on the abovo section of the statute, and held same to be unconstitutional.J

Ilonorable Eugene Urady, Pa:::e 10

Vieagreewith you that the seotion of Artiole 1645e-1, oited by you in your letter, is a local or epeoial law attempting to regulate the arfalrs of a oounty and therefore unconstitutional; The populationbraoketeprovided by said seotion of the act applied to only one county in the State of Texas aooording to the 1930 Federal Census, that oounty then being harrison County, Texas, and now applies to only one oouhty in the State of Texas aooordlng to 

### the 19&O Federal Census, that oourity being Hunt County,Texas, 

### As a basisfor our holdingwe refer you to the authorities olted 

### by Opinion has. O-899 and 1020 or this department.

We agree with you thatArtlole 16l,fid-1, Vernon’s Annotated Civil Statutes of Texas, Is a looal or speolal law end thereforeunoonstitutlonal. The populationbraokets provided by said Artlole appliad to Bowie, Collln,

### Harrison,Hunt, Lamar and Potter Counties,Texas, aocordlng to the 1930 Federal Census, and now applies to Oollin, Ellis,

### Htmt and Webb~Couuties, Texas, according to the 19&O Federal Ceneua, We think the caue of Besar Countyvs. Tynan, et al, 97 SW **(2d)** 567, **is** authority for this holding. May we point out that the populationbraoket used .lnsaid 

### aot affordsno 

### rairbasla for the olasslfioationbased upon a real dlstlnotionbetween oounties In that braoket 

### and oountles 

### with o ulations,qboyq or$@JW *h*,,,bmak&ei,,,,'Phe :=es. ‘y&&b;.,fi&

8, f 0' j$y.21atf&g";ij;i'

:,eg&-f&ot that the greater the ~populatlonof a oouuty the more onerous are the duties of the officers. The maxImum salary prescribed by the act is greater than that prescribedby the general Law8 for countieswith a greater population,and the aot disoriminate8 against those countiesand the orrioers therein. We encloseherewith a copy of OpinionNo. 

### O-735which 

### disouesesthe case of Bexar Countyvs. Tynan, et al, supra.

Article 3941,Vernon’sAnnotated Texas Civil 

### Statutes, reads as follower

*The oounty treasurer shallreoeive oommiseiOna on themoneys received and paid out by him, 

### said oommlasione to be rixed by order of the commissioners oourt as r 0ihff3t 

### For reoeivingall moneys, other than sohool funds, ror the county,not exceeding two and one-half per cent, and not exceedingtwo and onehalf per csnt f”or paying out the same; provided, that he shallreceive no commissions forreceiving money from his predecessor nor for paying over money to his successor in 0rrice.wRormrablo Eugene Brady, Page 11

Article 3942, Vernon'sAmotated Texas Civil Statutes,rsads a5 follow5:

"The treasurer8 bc treasurers of the fund and also of the for their reapeotive the ssv33?al counties or the several counties shall availablepublic free who01 permanent oounty sohool timd counties. The treasurers of shallbe allowed for reoelvlng and disburslne the sob001 lunde one-hall ol one per sent for reaelvlng, and one-half or one per cent for dlabursing, 

### aaidoomnlsslons to

### be paid out of the avallable sshool fund of the oounty; provided,no sommlssions shall be paid for reoefvlng the balanae tranualtted to him by his prsdeoessor, or for turning 

### over the 

### balanoeIn his hands to his sueoessor: and provided, that he shall receiveno ooumisslonson money tnnererred.3
Artiole 39&3,Vernon's Annotated Texas Civil Statutes, reads in part as follows:

"The oom~Isslonaallcwsd to any County Treasurer shall

### not exceed TWO Thousand Dollars (#2,OCW)

.~ :. -we,+,, ** :

,:)i:.. ,,.~~:~.“,;,“;,,,:.;‘i.;,.,

P,,~::.::,~ A... ;:,.,:,~,i ~,~:...i>:~ ,.,. >L::.,c:< ,.,. ,,/.,, ?,: ;~

You are respestfully advised that under the raots stated it is the opinion oi this department:

1. It 1s the duty of the 001vmi5sioners' oourt or Hunt County, Texas, to set the salaries of the sherlrr, Tax Aase3sor and Colleator, County Clerk,District Clerkand County Attorney at an annual salary of not Less thari $4.,250.00

and not .m_ore

than F&,292.50.
2. It ia the duty of the co5&ssioner31 court of Hunt County,Texas, to set the annual salary of the County Zudge or Hunt County,Texas, at not loss than $3,100.00 and not more than c&,292.50 per annuv.

Th3 CountyAuditor'5 salaq should be set at !J2,500.00

&m annum as provided by Artfcle 1.645, Vernon’s Annctated Texas Civil Statutes.

In your letter vou stat3 that the treasurer earned ~XKW than ~2,uOo.oo ror the year 1935. How3v3r, you have sinoeHonorable Eugene Brady, Page 12

informedus that the oomtnlsslonera~ oourt by a valid order limited the oommisslons of ths oounty trsasuror to a sumnot to exoeed $600.00 ror ths flsoal year 

### 1935;that therewars no drainage dlstriats in Bunt County in 

### 1935andam none there now, and that the oounty treasureP of Hunt Countydid not c&loot or reoelve any drainage dlstrlot oommalssion in the risaal year 

### 1935. You also state that the sum or $600.00 was the salary actually earned and reaelved by the treasurer for the ilaoal year 

### 1935. In visw of this additional inrormatlonyou are respeotiullj advised that It is the oplnion of this department that It Is the duty of the oommlssioners * court of Hunt County, Texas, to set the annual salary of the oounty treasurer at not leee than $600.00 and not mom than $2020.00per annum.

Wewlsh to express our appreciation ior the splendid brief submittedby youwhloh has aided us in the preparation OS this opinion.

Very truly yoursr
AT!TORNEPGF2iERAL OF TEXAS

By /s/ Wm. J. Fanulng

Wm, J. Fuming WJF;AW Aaslstatlt

ENCLOSURES

APPXOVED DEC. 20, 1940 /(I/ Grover Sellers

FIRSTASSISTANT ATTO?NEY GENERAL

A?T'ROVZD

OTIITO!J

COSk3~E By BVlSChairman