                                                               R-413



                                    Oh?ICE         OF

                      ‘mE     .&TORmY                (@NEW
                                   AUS~~.TEXAS~
                                                        !

PRICE   DANIEL
ATTORNEY GENERAL                    June 20, 1947
                                                        ,i

       Hon. Perry L. Jones,           :   opinion WO.~V-270
       County Attorney,
       Travis'County,.                    Re:     Constitutionalityof
       Austin, Texas                              Ho Be 100, A&s 50th
                                                  Legislature,1947,
                                                  relative to compensa-
                                                  tion of county treas-
       Dear Sir:                                  urersD
                   We reier..toyour ~letter'ofApril 24, 1947,
       to this Departmentwhich is as follows:
                                                'Z
                                                 _
                   "The current Legislaturehas passed
             Rouse R.l.ll:INo.:lOO
                                permitting'the'Commls-'
             sioners!~,Sourtin *countiesof Texas .hav-~
             ing a population of more than ninety thou-
             sand (90,006).and less than one 'hundred
            ;and/twelvethousand (112,000),accordi@
             to the last preceding Federal Census;* to
             pay the County Treasurer up to thirty-six
             hundred ($3600.00)Dollars per year.
                         "In smmuch as this is one-.or'theso-
                   called ~Braoket.Bllls~,I amwriting; at
                   the request ot the-~County
                                            Auditor; to &et -
                   your opinlonas.to whether or not.thls Bill
                   is ~constitutional~partlcularly
                                                 iiL're&3kdfb
                   the bra&at matter. I sm~enoloslnga aopy-
                   of House Bill No. lOOi"
                        l%mpertinent.part    or   the Bill is ds'ic%l-
        ImeL.:.. . :                                                 .
        ?x7:
                         Weotion 1. ~Sectio+13, Subseotion .
                   (a), Chapter 465, General and Speaial Laws,
                   Party-fourthLegislature,Seoond Called '
                   Session, as ~,amended
                                       by House Blll~No.~l6l,-
                   Regular Session, Eorty-sixth Legislature;
                   as amended by Chapter 61, Acts, Forfy-sev-
                   enth Legislature, is hereby amended to here-           !
                   after read as follows:
Hon. Perry L. Jones - Page 2


                 "*(a) The CommissionersCourt of
           the respective oounties of Texas having
           a po ulation of more than ninety thousand
           (90 too, and less than one hundred and
           twelve thousand (112,000),according to
           the last preceding Federal Census, are
           hereby authorized to fix the salary of
           the County Tfeasurer of the particular
           county at a sum not leas than Six Eundred
           Dollars ($600) per year, nor more then
           Thirty-six Hundred Dollars ($3600)per
           year.'*
                The provisions of   Artid   III of the Consti-
tution applicable are as follows:
                 "Sec. 56. The Legislature ahall
           mot, except as otherwise provided in
           this constitution,pasa any local or spea-
           ial law, authorizing: . c *
                 Tteglllitillg
                            the e2fai.m of a4ullties,
           aiths, towns, yards or sahool diatriets;

                Section X5 of Arttiele3912s 5s   ln.part   as
t0llOW*:

              'sec. 1s. The Comissionersf
       Court in counttieshaving a population
       61 twenty thousand (20,000)imhebi-
       tants or more, end leas than'&e.&an-
       drsd'and ninety thousend (1SO;OOD)in-
       habitants aocording to the lase pre-
       ceding Federal Censns, is hereby auth-
       orized and it shall be its duty to fix
       the salaries of all the following
       named officers, to-wit: sheriff, as-
       eessor~ and oolleofor of taxes, county
       @dge,.county attorney, including cplm-
       inal distriot attorneys and oounty at-
       torneys who perform the duties of dls-
       trict attorneys, district clerk, coun-
       ty clerk, treasurer* hide and animal
       &nspector. Ea h f said offioera shall
       be paid lnmonzy L annual salary in
       twelve (3.2)equal instailmentsof not
       less than the total sum earned as com-
       pensation by him in his ofiioial oap-
Hon. Perry L, Jones - Page 3



      acity for the fiscal year 1935, and not
      more than the maximum amount allowed
      such officer under laws existing on Aug-
      ust 24, 1935; o o o"

            It will be noted that the ~billin question
is made applicable to those counties having a popula-
tion of more than 90,000 and less than 112,000, Upon
checking the population census-or each county of the.
State, we find that at the present time there are four
counties in the State having a population of more than'
9OdOOO and less than 112,.000,to-wit: Travis, 111,053;
Hidalgo, 106,059;McLennan, 101,898; and Nueoes, 92,-
661, The population census further~reveala.thatEl
Paso County has a population of 131 597, The general
provisions of allythe statutes sett&gthe salaries
of county treasurers in.countieadth a p'opuletion  of
not less than 20,000 and not more than 190',000inhab-
itants fixes a ~maximumsalary or $2;006,0O:.perannum
(Art, 39128, Sec. 13, and~~ArtlCle394S, V.&S.); to-'
gether with the 2% increatie'as'allowed by S, B; 12S~~~
Acts 49th Legislature; Sec. 13 of Article 39l2e, supra,
Inasmuch as there is no other law governing the treas-
urer's salary which is applicable to El Paso County,
said salary is governed by'the provisions of S8otion
13 of Article 3912e, slipra,as amended in 1945;'and
the maximum salary which the treasurer of El Paso Coun-
ty may reoeive is~$2,500,00,eventhough itspopula-
tion is far in,exqass or that or .anycounty coming with-
in the brac&et.oT& B,.lOO.L~

            The Bill further providesfor a minUsam
salary of not less than $600 per annum, while the Gen-
8ralLaws (Art* 3912e, Sec. 13) sets ,minimumsalaries
of the county treasurers in ~oountleaw1th.a population
of not lass than 20,000 nor more than 190,000 inhabib'
tanta ht not less than the total sum earned aa'compen-
sation by them ih their ofricial capacities for the
riscal year 1935, Therefore, the Commissioners*~Courts
of the particular counties coming within the bracket
of'the Pill can set the salaries of the county treas-
urer In their respective counties at a much leas aal-
ary than provided for by Article 39128, Set, 13, even  I
though the ceunty treasurer is serving in a county
whose population is~far in-excess of those counties
wherein the minimum salary of the county treasurer is
Hon. Perry L. Jones - Page 4


not 18s~ than that earned in 1935, and much greater
than $600 per annul+
            The question for decision here is whether
the classificationis arbitrary and'unreasonableor
whether the population of the counties,8mbraC8dwith-
in the bill bears a reasonable or logical relation-
ship to the question of the amount of work required
of the county treasurerand the need for an increase
in the annual .salaryof Said officer. In other words,
Vhether'theLegislaturemay legally classify these
fourcounties and authorize the Commissioners1Courts
thereof to pay their respective county treasurers an
annual salary of $3690.00 when El Paso County (a much
larger county) is only authorizedto pay its treasur-
er an annual salary not to exceed $2500.00 per annum.

         : In regard to local and special laws, the
Texas Supreme Court In B8Xar County v. Tyimn, 97 S.W.
2d 467, held void an act of the Legislaturewhich
fixed the compensationof.the county of%icers in COW+
ties of not less than 290,000 nor more than SlO,QOO
at an amount less than offiaers in some counties 0r
S5IEll.l8=
        ~OpUf~tkOllCould r808iV8. olieqUOt8 ‘fromthe
opinion as follows:
           "a.. . the Legislaturemay Classi-
     fy counties upon a basis or population
     ror the purpose or rixingcompen~tion
     o&county and precinct officers,
        ng SO the ClaSSiflCatiOn.mUSt.%%%ed
     UPOn a real distinCtiOn,and must not be‘
     arbitrary or a d8ViC8 to give what is in
    '.subatancea local or special law the form
     0f.a general law. . .
           "*The rule is that a clasai~lcation
     cannot be adopted arbitrarilyupon a
     ground which has no foundation In differ-
     ence of .situationor ~circumstanc8sOf the
     municipalitiesplaced in the different
     classes. There must be some reasonable
     relation between the Situation Of mUIliCi-
     palitias reclassifiedand the purposes
     and object8 to be attained. ThBr8 mUBt be
     SOm8thillg.. . which in some reasonable
     degree accounts for the division into
     classes.'
Hon. Perry L, Jones Page 5


             *In the 0488 of Clark  v, Mtiey,
      93 Tex, 171, 54 5. W. 343,this Court recog-
     nized that substantialdifferenoesin popu-
     lations of counties could be-made a basis
      or legislationfixing   cornpen-Gtion   0r offi-
     oera, on the theory, as the-Court clearly
     recognieed,   that the work devolvi upon an
     officer was in some degree    proport"fonats to
     the population of the county. This has ire-
     quently been reoognixedby courts as creat-
     ing a sufficientdistinotionto justify a
     larger compensationfor county ofricers In
     counties having a large population as co&
     pared with compensationto llks officers in
     counties having a small population, Con-
     versely, we think It true that if the-is-
     lature ignoresthe obvious fact that the
     work of county orficera is proportionateto
     population and classifies oounties in such
     a way that the oompensatlonof Officers of
     a county having a large population is fixed
     far below the compensationallowed like of-~
     ficers in small counties. such action a-
     mounts to fixing a classificationwhich is
        bit     9  d hi h has no true relevance
     g th%&ewofcthe          ls~lslation.n(Empha-
     sis ours)
            It is readily apparent that H. B. No. 100
authorizes payment of salaries to county treasur4ra'l.n
fOUr COUnti greatly in exc8sa Of the.salary allowed
the county treasurer of El Paso county, a county with a
much larger population,under the general law in which
all of such counties are embraced, Section 13 of Arti-
cle 39128, suprae
             If this is not a local or special law, what
reason can 4 assigned for holding.lt to be a generals
law? Can 1e b8 said that the classificationis reason-
able and not arbitrary or that the olassifioatlonis
real when it allows the County treasurers in COUnti Of
a much-smallerpopulation to receive a muah greater Cal-
ary than the county tre&surers in all the other counties
having a population of at least 112,000 and hot more than
190,000 (includingEl Paso County) and when also at the
same time it allows the Commissioners*Courts of oounti4s
having a much greater population to set the salaries of'
the oounty treasurers in those counties coming within Its
bracketsas low as $600 per annum, a much less salary
than may be allowedthe county treasurers under Section
13 Of httC18   39128, SUpra, even though the county might
Eon. Perry L. Jones - Page 6


not have a population of-n~orethan 20,000 inhabitants?
We think not.
            Therefore, in view of the foregoing,you
are respeotfullqadvised that it is the opinion of this
Department..~that
                H. B. No. 100 is in contraventionof
Section 56 of drticle III of the Constitutionand is a
loo@1 or special la* and, therefore,is invalid and un-
codatitutfonalin this respect.


           House Bill &To.100, 50th Legislature,
     providing for the fixing of salaries of
     county trepreurersin counties having a pop-
     ulatfon.'betueen90,000 and 112,000 ts nor
     oonstitutlo'm~,the olassIrieatlonbeing un-'
     reasonable~and hot real.- Bexar Co. f, Tynan,
     97 5. 7, Ed 467.
                                    Very truly yours,




                               By     A&@
                                    d ce Allen
BA*ArdjSl:WB                        Assistant




                               ATTORNEY GENEFlAL
