R-413

Oh?ICE OF



## ‘mE .&TORmY (@NEW

AUS~~.TEXAS~

PRICE DANIEL ATTORNEY GENERAL ! June 20, 1947 ,i

Hon. Perry L. Jones, CountyAttorney, Travis'County,. Austin, Texas : opinionWO.~V-270

Re: Constitutionality of Ho Be 100, A&s 50th Legislature,1947, relative to compensatreastion of county Dear Sir: urersD

We reier..to

your ~letter'of

April 24, to this Departmentwhich is as follows: 'Z

_ 1947,

"The currentLegislaturehas passed Rouse R.l.ll:INo.:lOO permitting'the'

Commls-' sioners!~,Sourt

in *countiesof Texas .hav-~ ing a population of more than ninety thousand (90,006).and less than one 'hundred ;and/twelvethousand (112,000), accordi@ to the last preceding Federal Census;* to pay the County Treasurerup to thirty-six hundred ($3600.00) Dollars per year.

"In smmuch as this is one-.or'thesocalled ~Braoket.Bllls~, I amwriting; at the request ot the-~County Auditor; to &et - your opinlonas.to whether or not.thlsBill is ~constitutional~partlcularly iiL're&3kd

fb the bra&at matter. I sm~enoloslnga aopyof House Bill No. lOOi" l%mpertinent.part or the Bill is ds'ic%lImeL.:..

. : . ? x7:
Weotion 1. ~Sectio+13, Subseotion

. (a), Chapter 465, General and Speaial Laws, Party-fourthLegislature,Seoond Called ' Session,as ~,amended by House Blll~No.~l6l,- Regular Session,Eorty-sixthLegislature;
as amended by Chapter 61, Acts, Forfy-seventh Legislature,is hereby amended to here- ! after read as follows:Hon. Perry L. Jones - Page 2

"*(a) The Commissioners Court of the respective oountiesof Texas having
a po ulation of more than ninety thousand (90 too, and less than one hundred and twelve thousand (112,000), accordingto the last preceding Federal Census, are hereby authorizedto fix the salaryof the County Tfeasurer of the particular county at a sum not leas than Six Eundred Dollars ($600) per year, nor more then Thirty-sixHundred Dollars ($3600) per year.'*

The provisionsof Artid III of the Constitution applicable are as follows:

"Sec. 56. The Legislatureahall mot, except as otherwiseprovided in this constitution, pasa any local or speaial law, authorizing:

. c * Tteglllitillg

the e2fai.m of a4ullties, aiths, towns, yards or sahool diatriets;

Section X5 of Arttiele 3912s 5s ln.part as t0llOW*:

'sec. 1s. The Comissionersf Court in countties

having a population 61 twenty thousand (20,000)imhebitants or more, end leas than'&e.&andrsd'andninety thousend (1SO;OOD)inhabitantsaocording to the lase preceding Federal Censns, is hereby authorized and it shall be its duty to fix the salaries of all the following named officers,to-wit: sheriff,as**eessor~** and oolleoforof taxes, county @dge,.county attorney,including **cplm** inal distriot attorneysand oounty attorneys who perform the duties of dlstrict attorneys,district clerk, county clerk, treasurer*hide and animal &nspector. Ea h 

### f said offioera shall be paid lnmonzy L annual salary in twelve (3.2)

equal instailments of not less than the total sum earned as compensationby him in his ofiioial oap-Hon. Perry L, Jones - Page 3

acity for the fiscal year 1935, and not more than the maximum amount allowed such officer under laws existingon August 24, 1935; o o o"

It will be noted that the ~bill in question is made applicable to those countieshaving a population of more than 90,000 and less than 112,000, Upon checkingthe populationcensus-oreach county of the. State,we find that at the present time there are four countiesin the State having a population of more than' 9OdOOOand less than 112,.000, to-wit: Travis, 111,053; Hidalgo, 106,059;McLennan, 101,898; and Nueoes, 92,- 661, The populationcensus further~reveala.that El Paso County has a populationof 131 597, The general provisionsof ally

the statutes sett>he salaries of county treasurersin.countiea dth a p'opuletion of not less than 20,000 and not more than 190',000inhabitants fixes a ~maximum salary or $2;006,0O:.perannum (Art,39128, Sec. 13, and~~ArtlCle 394S, V.&S.); to-' getherwith the 2% increatie'as'allowed by S, B; 12S~~~ Acts 49th Legislature;Sec. 13 of Article 39l2e, supra, Inasmuchas there is no other law governingthe treasurer's salarywhich is applicableto El Paso County, said salary is governed by'the provisions of S8otion 13 of Article 3912e, slipra, as amended in 1945;'and the maximum salary which the treasurer of El Paso County may reoeive is~$2,500,00, eventhough itspopulation is far in,exqassor that or .anycounty coming within the brac&et.oT

& B,.lOO.

L ~

The Bill further providesfor a minUsam salary of not less than $600 per annum, while the Gen8ralLaws (Art* 3912e, Sec. 13) sets ,minimum salaries of the county treasurersin ~oountlea w1th.a population of not lass than 20,000 nor more than 190,000 inhabib' tanta **ht not**  less than the total sum earned aa'compensationby them ih their ofricial capacities for the riscalyear 1935, Therefore,the Commissioners* ~Courts of the particular countiescoming within the bracket of' the Pill can set the salaries of the county treasurer In their respective countiesat a much leas aalary than provided for by Article 39128, Set, 13, even thoughthe ceunty treasurer is serving in a county I whose populationis~far in-excessof those counties wherein the minimum salary of the county treasurerisHon. Perry L.

not 18s~ than than $600 per Jones - Page 4

that earned in 1935, and much greater annul+

The questionfor decisionhere is whether the classification is arbitraryand'unreasonable or whether the populationof the counties ,8mbraC8dwithin the bill bears a reasonableor logical relationship to the questionof the amount of work required of the county treasurerand the need for an increase in the annual .salary of Said officer. In other words, Vhether'the

Legislaturemay legally classifythese fourcounties and authorize the Commissioners1 Courts thereof to pay their respectivecounty treasurersan annual salary of $3690.00when El Paso County (a much larger county) is only authorizedto pay its treasurer an annual salary not to exceed $2500.00per annum.

: In regard to local and special laws, the Texas Supreme Court In B8Xar County v. Tyimn, 97 S.W. 2d 467, held void an act of the Legislature which fixed the compensationof.the county of%icers in COW+ ties of not less than 290,000nor more than SlO,QOO at an amount less than offiaers in some counties 0r S5IEll.l8=

~OpUf~tkOll

Could r808iV8. olie qUOt8 ‘fromthe opinionas follows:

" a..
. the Legislature may Classify countiesupon a basis or population
ror the purpose or rixingcompen~tion o&county and precinct officers, ng SO the ClaSSiflCatiOn.mUSt. %%%ed UPOn a real distinCtiOn,and must not be‘ arbitraryor a d8ViC8 to give what is in '.subatance

a local or special law the form 0f.a general law.

. . "*The rule is that a clasai~lcation cannot be adopted arbitrarilyupon a groundwhich has no foundationIn difference of .situation

or ~circumstanc8s

Of the municipalities

placed in the different classes. There must be some reasonable relationbetween the SituationOf mUIliCipalitias reclassified and the purposes and object8 to be attained. ThBr8 mUBt be SOm8thillg..

. which in some reasonable degree accounts for the division into classes.'Hon. Perry L, Jones Page 5

*In the 0488 of Clark v, Mtiey, 93 Tex, 171, 54 5. W. 343,thisCourt recognized that substantial differenoesin populations of counties could be-made a basis

or legislationfixing cornpen-Gtion 0r offioera, on the theory, as the-Courtclearly recognieed, that the work devolvi upon an officerwas in some degree proport "f onats to the populationof the county. This has irequently been reoognixedby courts as creating a sufficientdistinotionto justify a larger compensation for county ofricers In countieshaving a large populationas co& pared with compensationto llks officers in countieshaving a small population, Conversely, we think It true that if the-islature ignoresthe obvious fact that the work of county orficera is proportionateto population and classifiesoounties in such
a way that the oompensatlon of Officers of
a county having a large populationis fixed far below the compensation allowed like of-~ ficers in small counties. such action amounts to fixing a classification which is bit 9 d hi h has no true relevance g th%&ewofcthe ls~lslation.n (Emphasis ours)

It is readily apparent that H. B. No. 100 authorizespayment of salariesto county treasur4ra'l.n fOUr COUnti greatly in exc8sa Of the.salaryallowed the county treasurerof El Paso county, a countywith a much larger population,under the general law in which all of such countiesare embraced, Section 13 of Article 39128, suprae

If this is not a local or special law, what
reason can e4 assigned for holding.lt to be a generals law? Can 1 b8 said that the classification is reasonable and not arbitrary or that the olassifioatlonis real when it allows the County treasurersin COUnti Of
a much-smaller

populationto receive a muah greater Calary than the county tre&surers in all the other counties having a populationof at least 112,000 and hot more than 190,000 (including El Paso County) and when also at the
same time it allows the Commissioners* Courts of oounti4s having a much greater populationto set the salaries of' the oounty treasurersin those counties coming within Its bracketsas low as $600 per annum, a much less salary than may be allowedthe county treasurersunder Section

13 Of httC18 39128, SUpra, even though the county mightEon. Perry L. Jones - Page 6

not have a populationof-n~ore than 20,000 inhabitants? We think not.

Therefore,in view of the foregoing, you are respeotfullq

advised that it is the opinion of this Department..~that

H. B. No. 100 is in contravention of Section 56 of drticle III of the Constitution and is a loo@1 or special la* and, therefore,is invalidand uncodatitutfonal

in this respect.

House Bill &To.

100, 50th Legislature, providing for the fixing of salariesof county trepreurers

in countieshaving a populatfon.'betueen

90,000 and 112,000 ts nor oonstitutlo'm~,

the olassIrieatlon being un-' reasonable~

and hot real.- Bexar Co. f, Tynan, 97 5. 7, Ed 467.
Very truly yours,

BA*ArdjSl:WB By A&@ d ce Allen Assistant

ATTORNEY GENEFlAL