OFFICB OF THR ATTORNEY GENERAL OF TEUS
AUSTIN
Gerald C. Yam
Attorney General
Honorable 0. 8. Gilmer, Ohalrman
Committar on Judloiary and Unlfonn State Lawa
House of Representative6
Austin, Texas
Dear Sir: Opinion No. O-3339
Re: Constitutionality of Senate
Bill NO. 184 firing compensa-
tion or 00urt reporters 0f
Berar County, Texas.
This la in reply to your letter of Maroh 26, 1941,
requesting the opinion of this department on the following
questlons:
"L. Does the bill violate Seotion 56
or Article 3 of the Texas constitution?
*2. Does the bill violate any protl-
eion of the Texas Constitution in author-
izing the salaries of the oourt reporters
of Bexar County to be paid out of the Jury
Fund of said oounty?"
Senate Bill No. 184 provides ror the appointment
and flxos the oompensatlon of court reporters in eaoh Distriot
Court, Criminal Distriot Court, end County Court at Law of
Bexar County, Texas. This oompensation is to be paid monthly
by the commissioners' oourt out of the general fund or the
jury fund of Bexar County as the oommissioners’ court may
eleot. It Is admittedly a loeal law applying only to Bexar
County, Texas. The notice prerequisite to the passage cf a
local law required by the Constitution of Texas and Article
2 of Title 1 of the Revised Civil Statutes has been given.
Our inquiry is directed to its constitutionality.
Section 56 of Article 3 of the Constitution of
Texas reads, in part, as follows:
"The Legislature shall not, exoept as
otherwise provided in this Constitution, pass
any looal or special law, authorizing:
Honorable C. H. Gilder, Page 2
5Regulatlng the atfaire of oountieu,
* * *.I
"Andin all other oases where a general
law oan be mado appliotb+e$ ~0 looal or speoial
law shall be enaotod; .
Wa have been unable to dlsoorer that the Constitution
has *otherwise provided* for the paraage of looal or speoial
laws relating to the oompensation of oourt reporters. We must
look to Seotion 56 of Artlole 3. If Senate Bill No. 184 is a
looal or speoial law prohibited by that 5eotion of the Conetl-
tution, it mattersnot that the constitutional notioe prerequi-
site to the passage of an authorized looal or s?e&ial law has
been givsn.
We are of the opinion that Senate Bill No, 184 is in
the very teeth of and coneequently prohibited by Section 56 of
Artiole 3 of the Constitution of Texas. Undoubtedly SelEte
Bill No. 184 regulates the affairs of counties. Moreover, we
find that the Legislature haw already by general law dealt
with the appointment, oompensation and duties of oourt report-
er5. Artioles 2321-2327b-1, inclusive, Vernon's Annotated
Civil Statutes. The ~subjeot is therefore one about which a
general law oan be and has been made applicable. The following
0858s are in point:
Altgelt v. Gutzeit, 109 Tex. 123, 201 S,W. 400; Ward
7. Harris Co. (T.C.A. 1919) 209 S.W. 792, writ refused; Austin
Brothers T. Patton (Corn.Appr 1926) 288 S.W, 182; Kitohens V.
Roberts (T.C.A. 1930) 24 S.W. (2d) 464, writ refused; Duclos
v. Harrie Co., 251 S.W. 569, affirmed, Sup. Ct., 114 Tex. 147,
263 S.W. 562.
In the Duolos case the Galveston Court of Civil Ap-
peals was ooncernmh the validity of that FOrtiOn Of an
Act of the Legislature reorganizing the 2jrd Judicial Distriot
and creating the 80th Judicial District wherein the District
Clerk of H:rris County was given $1200.00 per ye&r additional
compensation. The court said:
"As before stated, we think these declarations
of the law settle the qtiestioxi,
and that so muoh of
this Act as attempted to award the $1200.00 addition-
al oompenaation must be held unconstitutional and void.
Honorablr 0. H. Gilmer, Pago 3
That a gmeral law oould be mado lp lloablo
to the 8attor oi oontpsnsating the D1 8triot
Clerk of Harris County is best dsmonatrated
by oltation ot thr taot that ons lx lmted at the tima
this sprolal attempt to add to that oompensation
was math. By Artlole 38g3, Revised Statutrs of
1911, the maximum amount of rees the Dlstrist
Olerk of Harris Uounty might retain was fixrd at
$2,750.00, while by Artiolr 3889, applyin to all
oountles with a population inexoess of 3 8 ,000,
it ms further provided that distriot olerka,
among other snumeratsd orfloars, might also re-
tain one-fourth of the exaaaa fees oolleoted
by them until such one-fourth amounted to the
sum of $1,500.00. So that under these provisions
of the general laws of the State then prevailing,
the Dlstriot Clerkof Harris County war limited to
a total oompensetion of $4,250.00 per annum. Fur-
thermoro, by Revised Statutes, Artlole 3891, the
Legislature made clear its purpose sot to permit
the dlstrlot olerks in those wuntlor having
more than one distrlot oourt to rotain their
maximum of fees for servioes performed in eaoh
of such courts by this enaotment:
“In all counties in thla state having more
than ona judioial distriot, the dlstriot clerks
thereof ahall in no oase be allowed fees in ex-
oeea of the maximum fees allowed clerks in
oountleshering only one distriot oourt.‘w
The SupremeCourt granted a writ of error but affirmed
the judgment of the Court of Civil Appeals, saying:
*We granted the writ of error beoause we
questioned whether this provision granting
additional compensation to this officer was
speoial or looal, in view of the fact it Is e
part of a law creating e distriot oourt,
Wioh is a general Law. An act oreating
a district court is e general law, and 85 a
matter of course the Legislature has the
authority in the oreating sot to legislate
as to all neoessary provisions and essential
elements of the Court; but that does not
justify the inclusion of local or speoial laws
or provisions which are in themselves subject
Honorablo 0. H. Gllmsr, Paga 4
to general legislation, and mhish im raot
are provided for and oontrollod by gsnaral
laws. Suoh prorlaiona, oven though lnoludad
in a (aneral law, are nerertholess spoolal
and looel.
"If the Logialature had, by eneotmont other
than in the bill oreeting the oourt, attempted
to inoroaso the salary of the olsrk of Harris
Oounty alone, auoh enaotment would olrarly
be a spooial and looal law, and violatire
of seotlon 56, artlole 3.' Can the faot that
it is lnoluded in the prorlaiona of a general
law oreating a new oourt in a aounty in
whloh a olerk for ill dlstriot oourta was al-
ready provided andhis oompensation fixed
under a gonoral law, the aame a8 for all
other olerka ir like oountles, ohange it8 na-
ture and effeot from that of a speolel and
looal law? We thinknot. To so hold would
be to look to the Sorm and not the spirit and
purpose of the law.
a * * l
.
"The aot oreeting the wurt waa essentially
a general aot or law. Tho provision pro-
riding for extra oompensation of the clerk
dirterent trom all other like olerks, as al-
ready provide& for by the law In the Maximum
Fee Bill, was essentially speoial and local.
Under these oonditions we are of the opinion
that the faot that it was inoludod within
the body of the general law does not change
ita oharaoter, nor make it immune from the
oonstltutionel prohibition.W
You are therefore advised in answer to your first
question, that in our opinion Senate Bill No. 184 is e looal
or special law regulating the affairs of Bexar County, that
it is a law conoerning a subjeot about whioh a general law APPRCVED
oan be and has been m&de applicable; and oonsequbntly that GPINICE
it fells within the prohlbiticn of Seotion 56 of Article 3 CCK,?IT"E'
of the Constitution of Texas. BY ?3m
CHAIRMAN
In view 0r our answer to your first question, we
rind it unneoessary to pass upon your ssoond.
Very truly yours
APPROVED APR. 10, 19W ATTORNEY GENERAL OF TEXAS
a) Gerald C. Mann
A b ORNEYGEWEKALOFTEXM BY (9) James D. Smullen
Assistant