. 

OFFICE OF THE AmORNEt GENERAL OF TEXAS 

AUSTIN 

Hon. Qilbert Smith 

County Attorney 

Jones County 

Anson, Texas 

Dear Sir: 

allowed to 

the following 

e, two and three, 

t a County have 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, page 2 

lows: 

The first sentence of said article reads as folWhenever any district, COutIty or 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 number needed, the 

position to be filled and the amount to 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 judge T f counties having a 

t 

opulation of not 18~~ than 48,000 and not more than 

9,000 inhabitants, according to the preceding Federal 

Census, to employ one person aas office assistant, bookkeeper and stenographer’, has been declared void and unconstitutional 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 County Judge in all counties In 

Texas having a population 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 Census be empowered to appoint an Assistant. 

"The salary of such Assistant shall be in an 

amount not to eXC88d Eighteen Hundred Dollars 

($1800) per annum and shall be subject to the 

consent and approval of the Commissioners Court 

of such counties. Acts 1939, 46th Leg., H. B. 

#log6 .” 

The question of the constitutionality of Article 

3903c is not befOr us ln this bpinion, and it is not ne- 
, 

Hon. Gilbert Smith, page 3 

cessary to pass upon the validity of the article in order 

to answer your inquiries. 

Jones County has 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 named officers, 

to-wit: sheriff, assessor and collector of taxes, 

county judge, county attorney;includLng criminal district attorneys and county attorneys 

who perform the duties of district attorneys, 

district clerk, county clerk, treasurer, hide 

and animal inspector. Each of said officers 

shall be paid.ln money an annual salary in twelve 

(12) equal installments of not less than the 

total sum earned as compensation by him in his 

official capacity for the fiscal year 1935, and 

not more than the maximum amount allowed such 

officer under laws 8xistFng on August 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, and having 

an assessed valuation in excess of Fifteen Million ($15,000,000) Dollars, according to the 

last approved preceding tax roll of such county 

the maximum amount allOVed such officers as salaries may be increased one (1s) percent for each 

One MIllion ($l,OOO,OOO) Dollars valuation or 

fractlonal part thereof In excess of said Fifteen 

Million ($15,000,000) Dollars valuation over and 

above the maximum amount allowed such officers 

under laws existing on August 24, 1935; and provided 

that In counties having a po ulation of thlrtyseven thousand five hundred s 37,500) and less than 

sixty thousand (60,000) according to the last preceding Federal Census, and having an assessed 
. 

Hon. C;ilbert Smith, page 4 

valuation In excess of Twenty Million ($20,000,000) 

Dollars, according to the last preceding approved 

tax roll of such county, the maxImUm amount allow8d such officers as salaries, may be Increased 

one (1s) percent for each One Million ($l,OOO,OOO) 

Dollars valuation or fractional part thereof, In 

excess of said Twenty Million ($20,000,000) Dollars 

valuation over and above the maximum amount alloved such officer under laws existing on Augus~t 24, 

1935. 

"(a) The Commissioners1 Court niay authorize 

the employment of a stenographer by the county 

judge and pay for such services out of the general fund of the county to an amount not to exceed Twelve HU!Idr8d ($12004 Dollars per year.8 

‘(UnderscorIng ours). 

Th8 prOVisiOn Of Article 39128 would apply to 

Jones county. 

Articles 3902 ahd Section 13(a) of Article 39128, 

hoWeVer, appear to be In OonfllOt in respect to the authority of the county judge in appointing an assistant or stenographer. 

This department has rUl8d on practically the 

saue question in opinion Ho. o-282 by the Honorable Benjamin Woo&all, 4sslstant Attorney General, who rendered 

an opinion on whether a county judge, who has heretofore employed a stenographer on the basis of $100.00 per 

month, may now employ an assistant on the'basls of $125. 

per month. Citing Articles 3902 and Section 13(a) of 

Article 3912e, it was held 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. 

39 TFX. JUR., 212, 1 114, and cases cited. 

SeCtiOn 13(a) Of Article 3912e is a definite 

limitation upon Article 3902 in respect to the counties 

to which it applies and since it speclflcally controls 

the case of the county judge's assistant or stenographer, 

It removes the county judge from the coverage of the 
Hon. Gilbert Smith, page 5 

phrase "any district, county or precinct officer' of 

Article 3902. 

To hold 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 we able 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, COUUty or preCinCt Officer", in Betting Out the 

compensation which may be allowed the appointed deputies, 

assistants or clerks, no reference other than that contained in the unconstitutional Section -j(a) is made to 

the county judge and an assistant for him. The special 

provlziom of the Act control the General and from the 

language of Article 3902 and Section 13(aj of Article 

3312e, it appears that the county judge is without unlimited authority to appoint an assistant 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 13 a) i' 

and that in view of the provislons 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 abOV8 fully answers the thr88 

inquiries contained in your letter, we are 

Yours V8I7 truly 

ATTORKEY GRNRRAL OF TKIAS 

By (8) Dick Stout 

Assistant 

DS:ob 

APPROVED OCT 13, I%+- APPROVED OPINION COMMITTEE 

Robert E. Kepke BYBWR CHAIRMAn 

Acting ATTORNEY GRNRRAL OF TEXAS