,_. 

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Honorable Fred Erieman 

Criminal District Attorney 

Gregg County 

Longview, Texas 

Dear Sir: Opinion No. O-4852 

Re: Balarier of Precinct officer6 

of Gregg County, Texas. 

Your request for opinion has been received, and carefully 

considered by this department. Jie quote from your request as follows : 

"Your opinion is requested on some questions pertaining to the officers' salary bill in Gregg County, 

Texas. 

"Gregg County, according to the 1930 census, had 

a population of lea6 than 25,000, In 1940 the cen6u6 

gave Gregg County a population of 58,027. Prior to the 

1940 census the Commissioner6 Court determined that a$1 

county and precinct officers in said county should be 

paid salaries. Salaries for 6Om of the precinct officers were a6 high a6 $3600 per amum. 

11 PSTION NO. 1: 

"Doe6 Art. 3891, V. A. C. S,, 86 amended by 

the acts of the 44th Legislature in 1935, Chapter 327, 

effective on day 1.8, 1935, repeal Sec. 6a, Art. 3883, 

V. A. C. S., a@ amended by the 44th Legislature, 1935, 

in Chapter 197, which act was effective Msy 10, 19351 

"QUESTION NO. 2: 

"Should the Commissionew Court of Gregg 

County determine to place precinct officer6 on the 

salary basis, what is the maximum amount that can be 

paid such precinct officers? 

"QUESTION NO. 3: 

"Should the Commissioner6 Court of Gregg 

County determine that precinct officers in said county 
Honorable Fred Erisman, Page 2 (0-4852) 

should be returned to the fee basis for their compensation, what IS the maximum amount of fee6 thatcan be retained by such precinct officer6 in said county? 

"Sec. 17, Art. 3912e, V. A. C. S. provides that in 

all counties in this state the precinct officer6 shall 

continue to be compensated for their services on a fee 

basis until the Commissioners Court shall have determined otherwise. In sub-section (b) of Sec. 17 the following language appears: 

"'(b) In counties where it shall have been 

determined that precinct officer6 shall be compensated 

on an annual salary basis it shall be the duty of the 

Commissioners' Court of such county to fix the salary 

allowed to such officers. Each of said officers shall 

be paid in money sn annual salary in twelve (12) equal 

installments of not less than the total sum earned as 

compensation earned by him in his official capacity for 

the fiscal year 1935 and not more than the maximum allowed such officer under laws exieting August 24, 1935.' 

"The Court of Civil Appeals at Beaumont in Nacogdoches 

County vs Jenkins, 140 S.W. (2) 901, held that it was mandatory 

that the salary be fixed at not less than the minimum, being the 

official earnings inl935, and not more than the maximum amount 

allowed such officer under the laws existing on August 24, 1935. 

"When Section 6a, Art. 3883, went into effect on May 

10, 1935, it fixed the maximum salaries for Justices of the 

Peace and Constables in counties having a population of le6S 

than 30,000 and a tax valuation of more than $90,000,000 at 

$3600 per year. Gregg County had a tax valuation in excess 

of $90,000,000 for the year 1935. However, at the same session of the Legislature (Acts 1935, 44th Legislature, Page 

752, Chapter 327, Paragraph 1) which act w86 effective eight 

days later than Sec. 6a, Art. 3883, supra, to-wit, May 18, 

1935, the maximum amounts that could be retained by precinct 

officers in counties having less than 25,000 population was 

fixed at $1400 per annum. The maximum amount to be retained 

by precinct officers in counties of 37,501 to 60,000, in 

whl,ch bracket Gregg County is now placed, the maximum fixed 

for said officers amounts to $2200. 

"Thereafter, in the same act is contained the following 

l.snguage: 

"'All current fees earned and collected by officers named in Art. 3883 during any fiscal year in excess of 

the maximum and excess allowed by this act, and for their 
Honorable Fred Erisman, Page 3 (0-4852) 

services and for the services of their deputies and 

assistants and authorized expenses, together with all 

delinquent fees collected and not used as provided in 

Art. 3892, or used to pay salaries of deputies or assistants when current fee6 are insufficient, shall be 

paid into the County Treasury in the county where the 

excess accrued.' 

"The second paragraph following provide6: 

"'The compensations, limitations and maximums herein fixed in this act for officer6 ahall include and apply to all officers mentioned herein & 

each and every county of this state, and it is hereby 

declared to be the intention of the Legislature that 

the provisions of this act shall apply to each of said. 

officera, and any special or general law inconeistent 

with the provisions hereof 16 hereby expresely repealed 

so far as the 6ame may be inconsistent with this act.' 

"It would appear that it was the intention of the 

Legislature that when any county grew out of one population bracket into another, that upon reaching the new 

bracket, its salaries would be determined by the new 

bracket into which it had grown. If this be true, then 

the salaries to be set for the year 1943 for precinct 

officers in Gregg County would be set in the population 

bracket of not less than 37,501 and not more than 

60,000. 

"If Art. 3891 repeals Sec. 6a, Art. 3883, then it 

would appear that the maximum salaries that could be paid 

to precinct officers in Gregg County would be $2200 per 

annum. If Sec. 6a was not repealed, it was in effect on 

August 24, 1935. If it was repealed by Art. 3891, then 

Art. 3891 was the existing law a6 effecting Gregg County 

on August 24, 1935. 

"There has been no decision construing the question 

whether or not Sec. 6a of Art, 3883 has been repealed; 

however, the language of Art. 3891 expressly repeals any 

law inconsistent with said article which would constitute 

a repeal by implication. (See Tex. Jur., ,Vol. 39, page 

137.) The two acts are in parixteria and are in conflict with each other. Eee 39 Tex. Jur., page 142.) 

Art. 3891 was passed at a later date which would make it 

the controlling statute. (See 39 Tex. J,T., page 139.) - 

"Your opinion on the above questions is respectfully 

requested." 
Honorable Fred Erislpan, Page 4 (o-4852) 

We quote from 39 Texas Jurisprudence, p. 150, as follows: 

11 

. . . a special act is, of course, repealed by 

subsequent legislation that contains an express repealing clause or that otherwise manifests the intention of the Legislature to repeal it. . ," 

We have carefully considered the acts and articles referred to in your letter in connection with the repealing clause 

quoted in your letter and have reached the opinion that your first 

question should be answered in the affirmative, and it is so answered. Having held herein that Section 6a of Article 3883, 

V. A. C. S., as amended by the 44th Legislature in 1935, was repealed by Article 3891, V. A. C. S., as amended by the 44th Legislature in 1935, it is not necessary to express an opinion herein 

as to the constitutionality of Section 6a of said Article 3883, 

as amended in 1935, and we express no opinion as to the constitutionality of said article. . . 

'< 

Opinion No. 0-2560 of this Department holds, &c$ other 

things, that the salaries for the officers named in Section'lj, 

Article 3912e, in counties having a population of 20,000 inhabitants 

or more and Less thanl90,OOO inhabitants, according to the last 

Federal census, should be fixed for the year 1941, as provided 

by law existing August 24th, 1935, regardless of the population 

of such counties as shown by the 1940 Federal census. Under the 

facts relative to this opinion Limestone County, Texas, had a population of 39,497 inhabitants according to the 1930 Federal census 

and the preliminary census report made by the Federal Census Bureau 

of the County's population in 1940 was 33,380 inhabitants. The 

opinion further holds that the minimum salary of any officer named 

in Section 13 of Article 3912e, supra, could not be less than the 

total sum earned as compensation by the incumbent of the office 

in his official capacity for the fiscal year 1935 and that the 

maximum salary could not be more than the maximum amount allowed 

such officer under laws existing on August 24th, 1935. We enclose 

herewith a copy of Opinion No. 0-2560. 

Opinion No. o-2582 of this department holds, among other 

things, that the change in the population of Travis County, Texas, 

as shown by the Federal census of 1940, had no effect upon the 

salaries of the district and county and precinct officers of said 

county, and that the minimum salary of such an officer could not 

be less than the.total sum earned as compensation by the incumbent 

of the office in his official capacity for the fiscal year 1935 

and that the maximum salary could not be more than the maximum 

amount allowed such incumbent under laws existing on August 24th, 

1935, and since the 1930 Federal census was then in effect such 

census was controlling. We enclose herewith a copy of opinion 

NO. o-2582. 
._ --- 

Honorable Fred Erisman, Page 5 (0-4852) 

On August 24th, 1935, Article 3891, V. A. C. S., a6 amended 

by the 44th Legislature, 1935 (II. B. 595), was effective and applied 

to Gregg County. Section 1 of Article 3883, V. A. C. S., as amended 

by the 43rd Legislature, 1933, wa6 also effective at said time and 

applied to Gregg County, Texas. Under Article 3883, Section 1, 

supra, the "first maximum" Justices of the Peace and Constables 

could retain was $1200.00. Article 3891, V. A. C. S., a6 amended, 

supra, authorized Justices of the Peace and Constables in Counties 

having a population of less than 25,000 inhabitant6 to retain onethird of excess fees above $1200.00 (after legal expenses had been 

paid) until such one-third plus the amount allowed under Article 

3883, ($1200 in this instance) amounted to $1400.00. 

We answer your second question as follows: $1400.00 

is such maximum. 

In answer to your third question it is our opinion that 

if the precinct officers are placed on the fee system the 1940 

Federal census will be applicable to them. The first maXimUm for 

the Justices of the Peace and Constables of Gregg County, Texas, 

operating on the fee system under Section 3 of Article 3883, 

V. A. C. S., applicable to counties having a population of not 

less than 37,501 and not more than 60,000 inhabitants, will be 

$1800.00 per annum. The second inaximum of such precinct officers 

of Gregg County, under the applicable portion of Article 3891, 

V. A. C. S., will be $2200.00. 

APPROVED OCT 13, 1942 

ISI Gerald C. Mann 

Very truly yours 

ATTORNEY GENERAL OF TEXAS 

ATTORNE*L' GENERAL OF TEXAS By /s/ Wm. J. Fanning 

Wm. J. Fanning 

AESiStant 

wJF:mp:lm 

Encl.. 

APPROVED 

OPINION 

COMMITTEE 

By /s/ BWB 

CKAlRMAN