### ,_. lf,;, ;

Honorable Fred Erieman

Criminal DistrictAttorney Gregg County Longview,Texas
Dear Sir: Opinion No. O-4852 Re: Balarier of Precinct officer6 of Gregg County, Texas.
Your request for opinionhas been received, and carefully consideredby this department. Jiequote from your request as follows:
"Your opinion is requested on some questionspertaining to the officers' salarybill 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 Commissioner6Court determinedthat a$1 county and precinct officers in said county shouldbe paid salaries. Salaries for 6Om of the precinct officers were a6 high a6 $3600 per amum. 11 PSTION NO. 1: "Doe6Art. 3891, V. A. C. S,, 86 amendedby 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@ amendedby the 44th Legislature, 1935, in Chapter 197, which act was effectiveMsy 10, 19351 "QUESTIONNO. 2: "Should the Commissionew Court of Gregg County determine to place precinct officer6 on the salarybasis, what is the maximum amount that can be paid such precinct officers? "QUESTIONNO. 

### 3: "Should the Commissioner6Court of Gregg County determine that precinct officers in said countyHonorable Fred Erisman, Page 2 (0-4852)

shouldbe returned to the fee basis for their compensation, what IS the maximum amount of fee6 thatcan be retained by suchprecinct officer6 in said county?
"Sec. 17, Art. 3912e,V. A. C. S. provides that in all counties in this state the precinct officer6 shall continueto be compensated for their services on a fee basis until the CommissionersCourt shall have determined otherwise. In sub-section (b) of Sec. 17 the following language appears:

"'(b) In countieswhere it shall have been determinedthat precinct officer6 shallbe compensated on an annual salarybasis it shallbe 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 installmentsof not less than the total sum earned as compensationearnedby him in his official capacity for the fiscal year 1935 and not more than the maximum allowed such officerunder laws exietingAugust 24, 1935.' "The Court of CivilAppeals at Beaumont in Nacogdoches County vs Jenkins, 140 S.W. (2) 901, held that itwas mandatory that the salarybe fixed at not less than the minimum,being the official earnings inl935, and not more than the maximum amount allowed such officerunder the laws existing onAugust 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 countieshaving a population of le6S than 30,000 and a tax valuation of more than $90,000,000at $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 couldbe retainedby precinct officers in countieshaving less than 25,000 populationwas 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 officersamounts to $2200. "Thereafter, in the same act is containedthe following l.snguage:"'All current fees earned and collectedby officers named inArt. 3883 during any fiscal year in excess of the maximum and excess allowedby this act, and for theirHonorable 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 assistantswhen current fee6 are insufficient,shallbe paid into the County Treasury in the countywhere the excess accrued.' "The secondparagraph followingprovide6: "'The compensations,limitationsand maximums herein fixed in this act for officer6 ahall include and apply to all officersmentioned herein & each and every county of this state, and it is hereby declared to be the intention of the Legislaturethat 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 inconsistentwith this act.'
"It would appear that it was the intention of the Legislature that when any county grew out of one populationbracket into another, that upon reaching the new bracket, its salarieswould be determinedby the new bracket intowhich it had grown. If this be true, then the salariesto 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.
"IfArt. 3891 repeals Sec. 6a, Art. 

### 3883,then it would appear that the maximum salariesthat couldbe 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 itwas repealedby Art. 3891, then Art. 

### 3891was the existing law a6 effectingGregg County onAugust 24, 

### 1935. "There has been no decision construingthe question whether or not Sec. 6a ofArt, 

### 3883has been repealed; however, the language of Art. 

### 3891expressly repeals any law inconsistentwith said articlewhich would constitute a repealby implication. (See Tex. Jur., ,Vol.

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

### 39Tex. 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, repealedby subsequentlegislationthat contains an express repealing clause or that otherwisemanifests the intention of the Legislature to repeal it.

. ,"
We have carefully considered the acts and articles referred to in your letter in connectionwith the repealing clause quoted in your letter and have reached the opinion that your first question shouldbe answered in the affirmative,and it is so answered. Having held herein that Section

### 6a of Article 

### 3883, V. A. C. S., as amendedby the 44th Legislature in 1935,was repealed by Article 

### 3891, V. A. C. S., as amendedby the 44th Legislature in 

### 1935,it is not necessary to express an opinion herein as to the constitutionalityof Section 6a of saidArticle 

### 3883, as amended in 

### 1935,and we express no opinion as to the constitutionality of said article. . . '< OpinionNo. 

### 0-2560of this Department holds, &c$ other things, that the salaries for the officersnamed in Section'lj, Article 3912e, in countieshaving a population of 20,000 inhabitants or more and Less thanl90,OOO inhabitants,according to the last Federal census, shouldbe fixed for the year 

### 1941,as provided by law existingAugust 24th, 

### 1935,regardless of the population of such counties as shownby the 1940 Federal census. Under the facts relative to this opinion Limestone County,Texas, had a population of 39,497 inhabitantsaccording to the 

### 1930Federal census and the preliminary census reportmade by the Federal Census Bureau of the County's population in 

### 1940was 

### 33,380inhabitants. The opinion furtherholds that the minimum salary of any officernamed in Section 

### 13 of Article 3912e, supra, could not be less than the total sum earned as compensationby the incumbentof the office in his official capacity for the fiscal year 1935 and that the maximum salary couldnot be more than the maximum amount allowed such officer under laws existing on August 24th, 1935. We enclose herewith a copy of OpinionNo. 

### 0-2560.

Opinion No. 

### o-2582of this departmentholds, among other things, that the change in the population of Travis County,Texas, as shownby 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 couldnot be less than the.total sum earned as compensationby 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 incumbentunder laws existing onAugust 24th, 1935, and since the 

### 1930Federal censuswas then in effect such censuswas controlling. We enclose herewith a copy of opinion NO. 

### o-2582.._ ---

Honorable Fred Erisman, Page 

### 5 (0-4852)

OnAugust 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 effectiveat said time and applied to Gregg County, Texas. Under Article 

### 3883,Section 1, supra, the "firstmaximum" Justices of the Peace and Constables could retainwas $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 inhabitant6to retain onethird of excess fees above $1200.00 (after legal expenses had been paid) until such one-thirdplus the amount allowed under Article 

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

We answer your second question as follows: 

### $1400.00 is suchmaximum.

In answer to your third question it is our opinion that if the precinct officers are placed on the fee system the 1940 Federal censuswill be applicable to them. The first maXimUm for the Justices of the Peace and Constables of Gregg County, Texas, operating on the fee systemunder Section 

### 3 of Article 

### 3883, V. A. C. S., applicable to countieshaving a population of not less than 

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

### $1800.00

per annum. The second inaximum of such precinct officers of Gregg County, under the applicableportion 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