E 

OF TEXAS 

Honorable W. S. (Bill) Reatly 

Chairman, Committee on Appropriations 

House of Representatives 

Austin, Texas 

Opinion NO. c-58 

Re: Constitutionality of a Bill 

setting the salaries of 

district attorneys and county 

attorneys performing the 

duties of district attorneys, 

on a graduated scale, according to the population of the 

Dear Mr. Heatly: various districts. 

Your request for an opinion reads as follows: 

"House Bill No. 61 (Quilllam and 

Schlller), referred~ to the Committee on 

Appropriations would, among other things, 

increase the State salaries of district attorneys and place county attorneys performing the duties of district attorney on a 

salary basis. 

"Would an Act setting the salaries of 

such officers (district attorneys and county 

attorneys performing the duties of district 

attorney) on a graduated scale according to 

the population of the varlous districts (i.e., 

a 'bracket bill') be in violation of the 

Constitution?" 

Section 1 of House Bill 61, referred to in your 

request, fixes the salaries to be paid the district attorney 

in all judicial districts of the State at the same amount. 

Section 3 of House Bill 61, referred to In your request, fixes 

the minimum compensation to each county attorney performing 

the duties of district attorney at the same amount. 

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Hon. W. S. (Bill) Heatly, page 2 (c-58) 

You have asked whether an Act setting the salaries 

of such officers on a graduated basis, based on population, 

would be constitutional. Section 56 of Article III of the 

Constitution of Telras, prohibiting local and special laws 

regulating the affairs of counties, has been consistently 

construed by the courts of this State as prohibiting the 

Legislature from enacting laws ~providing for compensation 

of county officials on a classification that Is not based 

upon a real distinction, but constitutes an arbltrary,devlce 

to give what is in substance a local or special law the f,orm 

of general law. However, the Legislature Is authorized to 

resort to population brackets for the purpose of fixing compensation where there Is a substantial reason and fair basis 

forthe classification. Clark v. Finley, 93 Tex. 177, 54 

S.W. 343 (1899); Bexar County v. Tynan, 128 Tex. 223, 97 S.W. 

26 467 (1936); Miller v. El Paso County, 136 Tex. 370, 150 

S.W;2d~lOGQ~(lg&l). 

Thus, population affords a ground for classification 

on the theory -that the greater the population, the greater the 

need for a higher compensation. See authorities, supra. 

: You are therefore advised that an Act setting the salaries of district attorneys and county attorneys performing the 

duties of district attorney, on a graduated scale, according 

to the population ,of the various districts would be constltutlonal, provided there Is a substantial and fair basis for the 

classification. 

SUMMARY 

The Legislature is authorized to resort to 

population as a basis for fixing compensation 

of county officers on the theory that the 

greater the population, the greater the need 

for higher compensation., Thus, an Act setting 

the salaries of district attorneys and county 

attorneys performing the duties of district attorney, on a graduated scale, according to population of the various districts, would be constltutional, provided there is a substantial and 

fair basis'for the classification. 

Yours very truly, 

JR:ms 

WAGGONER CARR 

Attorney General 

P 

BY i2Q-e 

ohn Reeves 

Assistant ,, :,.' 

-284- 
Hon. W. S. (Bill) Heatly, page 3 (c-58) 

APPROVED: 

OPINION COMMITTEE 

W. V. Geppert, Chairman 

Pat Bailey 

J. S. Bracewell 

Edward Moffett 

W. 0. Shultz 

APPROVED FOR THE ATTORNEY GENERAL 

By: Albert Jones 

-285-