Untitled Texas Attorney General Opinion

Gerald C. E%nn
Attorney General

Donorable Euaene Bra&v
Assistant Co&y Attoiney
Eunt county
Greenville, Texas
Dear Sir: opinion NO. o-2973
Be: Salaries of county officers of
.EZuntCounty, Texas
Your request for opinion has been received and
carefully considered by this Uepartment,.,\Bequote from your
request as foilows:
, "I respeatiully request opinion from you
as to salaries to be paid County Cffloers in
Hunt County, Texas, such facts as are neoassary
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Taunt County, Texas, aoaording to the'laat
preaeding FeUeral Census has a population of'
@,717. The total taxable valuation for 1940
is $20,1&2,000. All County Officers are and
have been compensated on a salary basis slnoe
the General Salary Law went into effect in 1936.
Al.1preolnot offloere are still compensated on
a fee basis. During the year 1935 all County
Officers except County Judge earned fees of
office in excess of $4,250.00 per year. county
Judge earned Sees of $3,100.00 during that year.
The earned tees of'the County Treasurer during
the year 1935 were in excess of $2,000. The
or population of Hunt County ,aaaordingto the 1930
Census was 49,016.
". . .

Tn~er the above law and state of facts
quoted it is i;u7
opinion that it would be the
duty of the Commissioners Court to set salaries
of !;heriff,Tax Assessor and Collector, County
Clerk, District Clerk. County Attorney at an
Honorable Xu(;eneBrady, Page 2

annual salary of not less'than $4,250.00 par
year and not more than $&,292.50 per year. That
it would be the duty of said court to set the
County Judge's Salary at a salary of not 166s
than $3,000.00 per year snd not mope than $&,292.50
per year.
NArtlcle 3887a provides: 'In all oountiee
in the state of Texas having a population of
more than 48,540 and less than 48,800 acaording
to the last preceding or any future ?ederal Cen-
sus where the Commissioners Court shall have
determined or shall determine to compensate the
County Attoneg of such county upon an annual
salary basis according to law, such Court shall
fix the salary of such County Attorney at not to
exoeed $Z,&OO.OO per annum.' This artlcls wa6
passed in 1937, Forty Fifth Legislature, Seaond
Called Session. It is my Information that this
Article never beoams a law for the reason that
it was passed at a special session of the Legis-
lature and was not within the Governor's aall for
that 6peOial 6e88iOn. but notwlthetanding that I
m -of'the~oplJl~~~.%&bo,gai&,~~ale::,~ul~..ag~~.~:~ '~"
the less be inoperative for reaaone set out and
d5.a&seed below.
"Article 3883d provides: Section 1: 'That
from and after January 1, 19&O, being the effeo-
tive date of this Act, in all oOUnti0S in this
State having a population of not less than 48,530
and not more than 48,930 acaording to the last
preaeding Federal Census, the Commissioners Court
shall have the povlerand authority to flx the Sd-
aries of the Shari??, the tax assessor-collector,
the aounty clerk, the county judge, the distriot
clerk, and the oounty attorney; provided, however,
that the salary of the sheriff shall not be flxed
in excess of the sum of *J+,250per annu'c,nor less
than the SW of 33,600 per annum; the salary of
the tax assessor-collector shall not be fixed in
excess of the sum of $&,OOO per annum, nor less
than the sum Of $3,600; the salary of the County
clerk shall not be fixed in excess of the sum of
$4,000 per annum, nor less than the sum of $3,300
.-
:'!onorable
3qene Brady, rage 3

PEIT~dlUI?l; the salary of the county judge shall
not be fixed in excess of the sum of $3,200 per
annuT nor less than the sum of $2,700 per annum;
the salary of the district olerk shall not be flr-
ed in excess of the sum of $3,300 per annum, nor
lese than the sum of $2,700 per annum; the salary
of the aounty attorney shall not be fixed in ex-
oess of the sum of $3,000 per annum nor less~than
the sun of $2,700 per annum.'
"It Is my opinion that both of the last two
quoted articles are unoonstitutional in that they
are in fact speoial laws even though they purported
to be General Lawe, as examination of the oen6u6
figures for 1930 show that at the time they were
passed they applied to only one aounty, Bowl8
County, and there exist6 none66onable ba6i6 in faot
for suoh a olassifioation a6 set out by you in your
opinion No. O-1020 and O-899.
*I also believe that they should be held nnoon-
6titutional under following oase6:

"wood ~6. &U-f6 Independent Sohool Diatriot,
123 SK (2d) 429.
"Brownfield va. Tongate, 109 SW (26) 352.
and many other oases referred to in these opinions.
"For these reasons I believe that Artioles
j88jd and 3887a referred to above are unoonstitu-
Mona1 and that it would be neaessary to go baok
to the General laws as set out above for the deter:
&nation of salaries to be paid County Offiaers in
this county.
"Article 1645 provide,sfor the appointment of
County Auditor, 'who shall be compensated for his
servic,ss$125 for each million dollars or major
yorticn thereof on the assessed valuation. The
annual salary to be co,mputedfro:%the last approved
tax Toll.' 'As set out above the last approved tax
.-
Honorable ?ugene Brady, Page 4

roll of thla county Is $20,142,000. Therefore
under this law the County auditor would be an-
titled to aompannsatlonIn the amount of $2,500
per year.
*Article 1645d, Section 1 provides *In all
oountlee in this state having a population of not
less than 45,000 inhabitante nor more than 50,000
inhabitants acoordlng to the last Federal Census
as same now exists or'may hereafter exist the
County Auditor shall receive an annuaI salary
from county funds of $4,000 to be paid in equal
monthly lnetallments out of the General Revenues
of the county.' This aat was passed by the Forty-
Fifth Legislature In 1937.
WArtlcle 1645e, Section 1 provldear 'That in
countlee having a population of not lean than
46,600 nor$more than 49,000 aoaordl.ugto the lart
preaedlng Be6oral Cansus the oompeneatfen of ea&
county Auditor shall bs 83,600.t This aat bmmme
efteotlre October 25, 1937.
*For the rea(1onamet out above It ie my opin-
.,, Zion:,m*..b&&G,~:~:*~Ja8.t..*m.:.
pufbw. :m.*&*Re.L-,
In taot apeofal lawa an&are theeefoxv WW@~~~~U-
tional and that it would be necessary to rely on
drtlcle 1645 as set out above In settfng the salary
of the County Auditor of this county. ,
*Article 3943 which was etreotlve on August
24, 3.935,provides: 'That the Commlsslona allowed
to the County Trearurer ahall not exceed $2,000
annually. This article taken in connection with
Artlole 3912e quoted above sets the limit wlthin
whloh the Commlsslonere Court may set the Tre~ur-
t3r’a Salary. It his fees in 1935 were in exeea8
of #2,000 It 18 my opinion that it would bs the
duty of the Commissionore Court under suah law to
set the salary oi the County Treasurer at $2,000
per year.
"1 shall appreciate an opinion from your of-
fice as.to the amount of'compensation that should
be allowed the County Officers lieted above in Bunt
r--

county. I will appreciate having this opinion
before the first of January as there are so
many special laws into which this county has
dropped since the laat Federal Census that the
Commissioners Court is at a loas to settle the
salaries that should be paid and desires to
settle this matter before the first of January.
"Please send me copies of your.Opinlona No.
O-1020 and O-899."
Article 3912e, Section 13, Vernon's Annotated Texas
Civil Statutes, reads in part a8 follower
The CommLaaionere~ Court In oountles hav-
ing a population of twenty thourand (20,000) ln-
habitants or more, and less than one hundred and
.nlnstpThousand (190,OQO) inhabitante according
to the last preceding Federal Cenaua, la hereby
authorized and it shall be Its duty to fix the
aularles of all the following named officera, to-
.- wltr sheriff, assessor end collector of taxes,
oounty judge, .county attorney, including orfiainal
district attorneys and oountp atCorneys who per-
$qrplthe ,,dnti.aa,
~..~.~A,~b.,.,a~~~ysi;,ldl~$~~',-','-
.:'
alerk, oounty clerk, t?xqnarer, hide and a
inspector. Eaah of said officera shall be paid
In money an annual salary In twelve (12) equal
Installments of not less than the total sum ear%-
.ed aa oompensation by him in his official oapaoltg
for the fiscal year 1935, and not more than the
maximum amount allowed suoh officer under laws
existing;on August 2l+,1935; . . . and provided
that in counties having a po ulatlon of thlrty-
seven thousand five hundred P 37,500) and less than
sixty thousand (60,000) aooordlng to the last pre-
ceding Federal Cenaua, and hating an aaeeaeed val-
uation in exaess of Twenty EAllllon (420,000,000.00)
Dollars, according to the last preceding approved
tax roll of suoh county, the maximum amount dlOW-
ed such officers as salaries, may be increased one
(1s) per cent for each One Xilllon ($1,000,000.00)
Dollars valuation or fractional part thereof, in
excess.of said Twenty l:;llllon ($20,000,000.00) Dol-
lars valuation over and above the maximum amount
 iionorableEugene Brady, Page 6

allowed such officer under laws existlng,on
JQuwst 24, 1935.”
Article 3883, Vernon's Annotated Texas Civil Sta-
tutes, reads In part as r0n0n.3:
"Except as otherwise provided in this Ad,
the annual fees that may be retained by precinct,
county and district officers mentioned in this
Article shall be as follows:
". . .

“3. In counties containing as many a8
thirty-seven thousand five hundred and one
(37 501) and not more than sixty thousand (60,-
OOO! inhabitants, or containing a olty or ttnm
of over twenty4lve thousand (25,000) luhabi-
tants: County Judge,.Distrlct or Criminal DLs-
trlct Attorney, Sherlrf, County Clerk, County
- Attorney, District Clerk, Tax Collector, Tax
Assessor, or the Assessor and Collector of
Taxes, Thirty-tire Hundred (#3500.00) Dollars
meh.; ~Ju~ti~e:.:&
4the,,Saaer~
:md .~Oonrtab&i~d&gh~~ur~-
~~..'
Hundred ($1800.00) ~Dollarseaoh. (As ameuded
Acts 1930, &..lst
Leg., 4th C.S., p. 30, oh. 20;
Acts 1931, l&&d Leg., p. 822, oh. 3401 Aats
1933, 43ra Leg., p. 731, oh. 220, 1 1.)"

Article 3891, Vernon's Annotated Texas Civil Sta-
tutes, reads in part as follows:
nEach offlcer named In thls~Chapter shall
first out of the current rees of his office pay
or be paid the amount alloweU him under the pro-
visions of Article 3883, together with the salar-
ies of his assls,tantsand deputies, and author-
ized expenses under Article 3899, and the amount
necessary to cover aosts of premlurnon whatever
surety bond may be required by law. If the cur-
rent ieea of such office collected in any year
be more than the amount needed to pay the amounts
above specified, sane shall be d.eemedexcess fees,
and shall be disposed of in the ma,nnerhereinafter
provided.
”. . *
 Zonorable Eugene Brady, Page 7

*In counties containing a.8meny aa thlr*-
seven thousand, tire hundred and one (37 501)
and not more than sixty thousand (~o,ooo~, or
containing a city of over twenty-five thousand
(25,oOO) Inhabitants, district and oounty offl-
cers named herein shall retain one-third of
such excess fees until such one-third, together
with the amount specified in Article 3883,
amounts to Forty-two Hundred and Fifty Dollars
($&250). . .

n(As amended Acts 1930, 4lst Leg., 4th C. S.,
p. 30, oh. 20; Aote 1931, 42nd Leg., p. 870, oh..
368; Aots 1933, 43rd Leg., P* 734, oh. 220, I 2;
Acts 1935, 44th Leg., pa 752, oh. 327, t 1.)"
The last two above quoted provisions of law w?re in
rull force and effeot on Augtut 24th, 1935.
We quote fmm the ease of Baoogdoohee Oounty vs.
C Wnder (Beaumont Court of Olvll Appeals) 140 SW (2d) 972,
(writ rerused), as follow8:
..,,3ll~.~.roll~,.,r*a~...ax*~>.rl~out&aput*r..;.i.,v.~
Appelloe, Windor, was the duly eleoWd, q&i-
fled and aotlng County Glemk of Raoogdoohes
County during the years 1937 and 1938. lkoog-
doches County was under the salary act law,
Article 3912e, section 13, Vernon's Ann. Cl~ll
Statutes. and Article 3S91. R.C.S.. Vernon?6

earned es-oompensation o? his ofiloe the au&-of
$3.286.16. On January 13, 1936, at a regular
session of the Colmniesloners*court, an ardor
was entered by said court fixing appellee*s sal-
ary at $3,286.16 the amount earned as salary
by the county judge of said oounty In 1935.
Later In said month, January 31st, at a oailled
.session.of said court, his salary was fixed at
,';3,350per year. On January 11, 1937, the
cotissioners' court in regular session fixed
his salary at $3,000, for that year, and on
-
January 10, 1938, said court fixed his salary
:ionorable'Eugenearadg, PatIe8

at $3,000 for said year. This was $286.16 lees
than the minimum salary f'or1935, and 8350 less
than the salary as fired by the order of January
31, 1936. Appellee prayed udgment for $572.32,
the difference between the il
3,000 per pear for
1937 and 1938, and the minimum or $3,286.16 as
fixed by the order of January 13, 1936, or In
the alternative for judgment for $700 If the
order of January 31, 1936, passed at the called
session be found proper. The judgment was for
:$572.32.
"We think the order fixing appellee's salary
made at the regular term of January 13, 1936,
was in accordance with the law, and that the
amount then fixed as the annual salary of appellee,
$3,286.16, under the facts and the'law was proper,
and is controlllne.here. Article 79120. seotion

Opinion No. O-2582 of this department dealt with a
situation relative to the salaries of the officers of Travis
County, Texas, where the population of that county had increas-
ed Pron 77,777 Inhabitants in 1930 to 110,686 inhabitants aa-
oording to the 1940 census. This opinion holds that the change
in'the population of Travis County, as shown by the Iredoral
Census of 1940, has no efPect.whatever upon the salaries of
the district and county offioers named in Article 3912e, Sec-
tion 13, V.A.C.S..and that the .maximuc:
salary to be allowed
P

:;onorabj.e
-::ui;;ene
Brady, PaAe 9

such officer was the meximum allowed the officer by laws exist-
ing August 2L, 1935, to-wit, $&,750.00. We enclose herewith a
copy or said opinion.
Opinion Ho. 0-2560 of this department holds that
the commissioners court of Limestone County, Texas, should fix
the salaries of the ofricials of said county named in Artiole
3912e, Sec. 13, V.A.C.S., for the year 19&l; that the minimum
salary of each suoh offioer oannot be lees thsn the total cum
earned as compensation by him in his orrioial oapaolty for the
fiscal year 1935 and that the maximum salary of each above men-
tioned officers oould be the maximum amount allowed him under
laws existing August 24, 1935, plus one per oent for each one
million dollars valuation or fractional part thereof in excess
of rlfteen million dollars. This opinion dealt with a situation
viherethere was a deoreaae in population. We enclose herewith
a copy or said opinion.
We agree with you that Article 3887a, Vernon’s Anne-
tated Texas Civil Statutes, ia a 1ooe.lor epeoial law attempting
f- to regulate the arrairs of a oouoty and therefore unoonstltutlon-
al. The population braokets provided by said aot applied to only
one county in the State of Texas aooordlng to the Federal Census
., ., of
.,~
., 1930,,
appx-i that
aacounty
es'.to,; :~&&$then being Bode
."'e~y.“~txe County, Texas, and nom
~'stPtcr~.~;*f:.la~~~~,,~~~~~~'~.to
the 1940 ~lrederalCensus, that county being Hunt County, Texas.
As a basis for our holding we refer you to the authorities oited
in Opinions Nos. O-899 and 1020 of this department, whioh are
enclosed herewith.
Y!eagree with you that the section of Article 38fijd,
Vernon's Annotated Texas Civil Statutes, cited by you fn your
letter, is a local or apeoial law attempting to regulate the
affairs of a county and therefore unconstitutional. The popu-
lation brackets provided by said seotion of the act applied to
only one county in the State of Texas according to the 1930
Federal Census, that oountp then being Bowie County, Texas, and
now applies to only one county in the State of Texas according
to the 19&O Federal Census, that oounty being 1iun.t
County, Texas.
As a basis for our holding we refer you to Opinion Eo. O-1020
of this department which specifically passed on the abovo sec-
tion of the statute, and held same to be unconstitutional.
J

IlonorableEugene Urady, Pa:::e
10

Vieagree with you that the seotion of Artiole 1645e-1,
oited by you in your letter, is a local or epeoial law at-
tempting to regulate the arfalrs of a oounty and therefore
unconstitutional; The population braokete provided by said
seotion of the act applied to only one county in the State of
Texas aooording to the 1930 Federal Census, that oounty then
being harrison County, Texas, and now applies to only one
oouhty in the State of Texas aooordlng to the 19&O Federal
Census, that oouritybeing Hunt County, Texas, As a basis for
our holding we refer you to the authorities olted by Opinion
has. O-899 and 1020 or this department.
We agree with you that Artlole 16l,fid-1,Vernon’s
Annotated Civil Statutes of Texas, Is a looal or speolal law
end therefore unoonstitutlonal. The population braokets pro-
vided by said Artlole appliad to Bowie, Collln, Harrison, Hunt,
Lamar and Potter Counties, Texas, aocordlng to the 1930 Federal
Census, and now applies to Oollin, Ellis, Htmt and Webb~Couu-
ties, Texas, according to the 19&O Federal Ceneua, We think
the caue of Besar County vs. Tynan, et al, 97 SW (2d) 567, is
authority for this holding. May we point out that the popula-
tion braoket used .ln said aot affords no rair basla for the
olasslfioation based upon a real dlstlnotion between oounties
In that braoket
*h*,,,bmak&ei oountles‘y&&b;.,fi&
and:=es.
,,,,'Phe with o ulations,qboyqor $@JW
0'j$y.21atf&g";ij;i'
:,eg&-f&ot
8,f
that the greater the ~populatlonof a oouuty the more onerous
are the duties of the officers. The maxImum salary prescribed
by the act is greater than that prescribed by the general Law8
for counties with a greater population, and the aot disorimin-
ate8 against those counties and the orrioers therein. We en-
close herewith a copy of Opinion No. O-735 which disoueses the
case of Bexar County vs. Tynan, et al, supra.
Article 3941, Vernon’s Annotated Texas Civil Statutes,
reads as follower
*The oounty treasurer shall reoeive oommiseiOna
on the moneys received and paid out by him, said
oommlasione to be rixed by order of the commission-
ers oourt as r 0ihff3t For reoeiving all moneys, other
than sohool funds, ror the county, not exceeding two
and one-half per cent, and not exceeding two and one-
half per csnt f”orpaying out the same; provided, that
he shall receive no commissions for receiving money
from his predecessor nor for paying over money to his
successor in 0rrice.w
Rormrablo Eugene Brady, Page 11

Article 3942, Vernon's Amotated Texas Civil Sta-
tutes, rsads a5 follow5:
"The treasurer8 or the several counties shall
bc treasurers of the available public free who01
fund and also of the permanent oounty sohool timd
for their reapeotive counties. The treasurers of
the ssv33?al counties shall be allowed for reoelvlng
and disburslne the sob001 lunde one-hall ol one
per sent for reaelvlng, and one-half or one per
cent for dlabursing, aaid oomnlsslons to be paid
out of the avallable sshool fund of the oounty;
provided, no sommlssions shall be paid for reoefv-
lng the balanae tranualtted to him by his prsdeoessor,
or for turning over the balanoe In his hands to his
sueoessor: and provided, that he shall receive no
ooumisslons on money tnnererred.3
Artiole 39&3, Vernon's Annotated Texas Civil Statutes,
reads in part as follows:
"The oom~Isslona allcwsd to any County Trea-
surer shall not exceed TWO Thousand Dollars (#2,OCW)
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You are respestfully advised that under the raots
stated it is the opinion oi this department:

1. It 1s the duty of the 001vmi5sioners'oourt or
Hunt County, Texas, to set the salaries of the sherlrr, Tax
Aase3sor and Colleator, County Clerk, District Clerk and County
Attorney at an annual salary of not Less thari$4.,250.00and
not .m_ore
than F&,292.50.

2. It ia the duty of the co5&ssioner31 court of Hunt
County, Texas, to set the annual salary of the County Zudge or
Hunt County, Texas, at not loss than $3,100.00 and not more than
c&,292.50 per annuv.
Th3 County Auditor'5 salaq should be set at
!J2,500.00&m annum as provided by Artfcle 1.645,Vernon’s
Annctated Texas Civil Statutes.
In your letter vou stat3 that the treasurer earned
~XKW than ~2,uOo.oo ror the year 1935. How3v3r, you have sinoe
Honorable Eugene Brady, Page 12

informed us that the oomtnlsslonera~ oourt by a valid order
limited the oommisslons of ths oounty trsasuror to a sum not
to exoeed $600.00 ror ths flsoal year 1935; that there wars
no drainage dlstriats in Bunt County in 1935 and am none
there now, and that the oounty treasureP of Hunt County did
not c&loot or reoelve any drainage dlstrlot oommalssionin
the risaal year 1935. You also state that the sum or $600.00
was the salary actually earned and reaelved by the treasur-
er for the ilaoal year 1935. In visw of this additional in-
rormatlon you are respeotiullj advised that It is the opln-
ion of this department that It Is the duty of the oommlssion-
ers * court of Hunt County, Texas, to set the annual salary
of the oounty treasurer at not leee than $600.00 and not mom
than $2020.00 per annum.
We wlsh to express our appreciation ior the splendid
brief submitted by you whloh has aided us in the preparation
OS this opinion.

Very truly yoursr
AT!TORNEP GF2iERAL OF TEXAS

By /s/ Wm. J. Fanulng
Wm, J. Fuming
WJF;AW Aaslstatlt
ENCLOSURES

APPXOVED DEC. 20, 1940
/(I/Grover Sellers
FIRST ASSISTANT
ATTO?NEY GENERAL

A?T'ROVZDOTIITO!JCOSk3~E
By BVlSChairman