.

OFFICE OF THE AmORNEt GENERAL OF **TEXAS** AUSTIN

Hon. Qilbert Smith CountyAttorney Jones County Anson, Texas Dear Sir:

allowed to

the following e, twoand three,

t a Countyhave a 48,900, before the
ally neceesary that the Counlflcally authorized In view of which it says that any officer County or precinct may.employ er*s Court?’ ‘the approval of the CommisslonArticle 3502, Vernon’s Annotated Civil Statutes, is a general StatUt8 authorizing the appointment of deputies, assistants or clerks by “any ~lstrict, county or precinct officer”

..

Hon. Gilbert Smith, 

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lows: Thefirst sentence of said article reads as folWhenever anydistrict, COutItyor precinct

._ _ _ officer shall require tne services of deputies, assistants or clerks in the performance of his duties he shall apply to the county commisslonerqs court of his county for authority to appoint such deputies, assistants or clerks, stating by svorn application the numberneeded, the position to be filled and the amountto be paid ***a S&ion 38 of Article 3902, Vernon's Annotated Civil Statutes, referred to In y letter, vhlch attempted to authorize the county judgeTf counties having a topulation of not 18~~than 48,000 andnot more than 9,000 inhabitants, according to the preceding Federal Census, to employ oneperson aas office assistant, bookkeeper and stenographer’, has been declared void andunconstitutional by this department in opinion Ho. O-364 by the Honorable Ardell. Williams, Assistant Attorney Qeneral. Section 3a of Article 3902 having been held unconstitutional, th8 46th Legislature during its regular session passed Article 3903c, Vernon’s Annotated Clvll Statutes, which reads as follows:

“That the CountyJudge in all counties In Texas having apopulation of not less than fortyeight thousand, six hundred (48,600) nor more than forty-nine thousand (49,000) according to the last preceding or any future Federal Censusbe empowered to appoint anAssistant. "The salary of such Assistant shall be in an amountnot to eXC88dEighteen HundredDollars ($1800) per annumand shall be subject to the consent andapproval of the Commissioners Court of such counties. Acts 1939, 46th Leg., H. B. 

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.” Thequestion of the constitutionality of Article 3903c is not befOr us ln this bpinion, and it is not ne-,

Hon. Gilbert Smith, page 

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cessary to pass upon the validity of the article in order to answer your inquiries.

Jones Countyhas a population of 24,233 persons according to the last Federal Census.

Article 39128, Section 13, Vernon's Annotated Civil Statutes, provides:

"The Commissioners' Court in counties having a population Of **twenty** thOUsand(20,000) lnhabltests or more, and less than one hundred and ninety thousand (190,000) Inhabitants according to the last preceding Federal Census, Is hereby authorized and It shall be its duty to fix the salaries of all the following namedofficers, to-wit: sheriff, assessor and collector of taxes, county judge, county attorney;includLng criminal district attorneys and county attorneys whoperform the duties of district **attorneys,** district clerk, county clerk, treasurer, hide andanimal inspector. Each of said officers shall be paid.ln moneyan annual salary in twelve (12) equal installments of not less than the total sumearned as compensation byhim in his official capacity for the fiscal year 1935, and not more than the maximumamountallowed such officer under laws 8xistFng onAugust 24, 1935; provided that In counties havfng a population of twenty thousand (20,000) and less than thirtyseven thousand five hundred (37,500) according to the last preceding Federal Census, andhaving an assessed valuation in excess of Fifteen Million ($15,000,000) Dollars, according to the last approved preceding tax roll of such county the maximumamountallOVed such officers as salaries maybe increased one (1s) percent for each OneMIllion ($l,OOO,OOO) Dollars valuation or fractlonal part thereof In excess of said Fifteen Million ($15,000,000) Dollars valuation over and above the maximumamountallowed such officers under laws existing onAugust 24, 1935; andprovided that In counties having **a** poulation of thlrtyseven thousand five hundred s37,500) and less than sixty thousand (60,000) according to the last preceding Federal Census, and having anassessed.

Hon. C;ilbert Smith, page 4
valuation In excess of TwentyMillion ($20,000,000) Dollars, according to the last preceding approved tax roll of such county, the maxImUm amountallow8d such officers as salaries, maybe Increased one (1s) percent for each OneMillion ($l,OOO,OOO) Dollars valuation 

### orfractional part thereof, In excess of said TwentyMillion ($20,000,000) Dollars valuation over andabove the maximumamountalloved such officer under laws existing onAugus~t

### 24, 1935. "(a) The Commissioners1 Court niayauthorize the employment of a stenographer by the county judge andpay for such services out of the general fund of the county to anamountnot to exceed Twelve HU!Idr8d($12004 Dollars per year.8

‘(UnderscorIng ours). Th8prOVisiOn OfArticle 39128would apply to Jones county.

Articles 3902 ahdSection 13(a) of Article 39128, hoWeVer, appear to be In OonfllOt in respect to the authority of the county judge in appointing anassistant or stenographer. This department has rUl8d onpractically the saue question in opinion Ho. 

### o-282by the Honorable Benjamin Woo&all, 4sslstant Attorney General, whorendered an opinion onwhether a county judge, whohas heretofore employed a stenographer on the basis of $100.00 per month, maynowemploy anassistant on the'basls of $125. per month. Citing Articles 3902 and Section 13(a) of Article 3912e, it washeld that the special provisions of Article 3912e would control the general statutes, and that the county judge would be precluded from paying the county judge ’s stenographer in excess of $1200. 39TFX.JUR., 212, 1 114, and cases cited.

SeCtiOn 13(a) OfArticle 3912e is a definite limitation uponArticle 3902 in respect to the counties to which it applies andsince it speclflcally controls the case of the county judge's assistant or stenographer, It removes the county judge from the coverage of theHon. Gilbert Smith, page 

### 5 phrase "any district, county or precinct officer' of Article 3902.

Tohold othervise would in effect sanction the appointment by the county judge of 'deputies, assistants, and clerks" in addition to a stenographer authorized under Article 3912e, Section 13(a). It cannot be presumed that such was the intention of the Legislature.

Finally, nowhere else in Article 3902, supra, Other than in the void Section 3(a) are weable to find a legislative grant of authority to the county **judge** to employ an "office assistant, bookkeeper ahd stenographer".

Article 3902 authorizes th8 appointment of deputies, assistants, clerks, etc. by county officers generally. While in the firstsentence, It reads *any district, COUUtyor preCinCt Officer", in 

### Betting Out the compensation which maybe allowed the appointed deputies, assistants or clerks, no reference other than that contained in the unconstitutional Section -j(a) is madeto the county judge andanassistant for him. Thespecial provlziom of the Act control the General and from the language of Article 3902 andSection 13(aj of Article 3312e, it appears that the county judge is without unlimited authority to appoint anassistant or pay him any salary.It Is our opinion that a county commissioners1 court is not authorized under Article 3902, Vernon's bnotated Civil Statutes, in the absence of a specific grant of power, to pay any salary for an assistant for the county udge, tion 

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i' and that in view of theprovislons of Secof Article 39128, Vernon's AMotat8d Civil Statutes, applying to counties with population of 20,000 inhabitants or more, and less than 190,000 inhabitants, the. county judge in such counties can only employ a stenographer with the approval of the commissioner18 court at a salary not to exceed $1200.00.

Trusting that the abOV8fully answers the thr88 inquiries contained in your letter, **we** 

### are Yours **V8I7** truly ATTORKEY

GRNRRAL

OFTKIAS By (8) Dick Stout

Assistant DS:ob APPROVED

OCT

### 13,I%+- APPROVED OPINIONCOMMITTEE Robert E. Kepke BYBWRCHAIRMAn Acting ATTORNEY

GRNRRAL

OFTEXAS