E OF TEXAS

HonorableW. S. (Bill)Reatly Chairman,Committee on Appropriations House of Representatives Austin, Texas Opinion NO. c-58
Re: Constitutionalityof a Bill setting the salaries of district attorneys and county attorneysperforming 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:
"HouseBill No. 61 (Quilllamand Schlller), referred~ to the Committeeon Appropriationswould, among other things, increase the State salaries of district attorneys and place county attorneys performing the duties of district attorney on a salarybasis. "Wouldan Act setting the salaries of such officers (districtattorneys and county attorneysperforming the duties of district attorney) on a graduated scale according to the population of the varlous districts (i.e., a 'bracketbill') 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 judicialdistricts of the State at the same amount. Section 3 of House Bill 61, referred to In your request, fixes theminimum compensation to each county attorney performing the duties of district attorney at the same amount.

-283-Hon. W. S. (Bill)Heatly, page 2 (c-58)

You have askedwhether an Act setting the salaries of such officers on a graduatedbasis, based on population, would be constitutional. Section 56 of Article III of the Constitutionof Telras, prohibiting local and special laws regulating the affairs of counties,has been consistently construedby the courts of this State as prohibiting the Legislature from enacting laws~providingfor compensation of county officials on a classificationthat Is not based upon a real distinction,but constitutesan arbltrary,devlce to give what is in substancea local or special law the f,orm of general law. However, the Legislature Is authorized to resort to populationbrackets for the purpose of fixing compensationwhere there Is a substantialreason and fair basis forthe classification. Clarkv. 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-thatthe 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 ,ofthe various districtswould be constltutlonal,provided there Is a substantialand 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 substantialand 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

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