        OFFICE OF THE ATTORNEY GENERAL      OF TEXAS
                         AUSTIN




Honorable Cerlton.Woore,
                  _      Ch8lrma~
cmttes    on mmntaes
House Of Rep??rsentatives
Forty-ninthLegialaturs
Austin, Texas

Dear Sir:                                 __--
                                          128
                                         ionalitj of


                                    d    1 RO. 229, re-
                                        compensationof
                                      fs In all 00untlos~




                                   ttee on Couutles, in
                                       s Legis)ature, I
                                       e of obtaining
                                       relative to the
                                            220, wfiiah
                                         'This CommIttee
                             er the proposed Bill, a
                                            part of sane,
                                          iole XVI of

            House Bill No.   b+ Storsy, is a8 foll&~r
Bon. Carltonl;.oore,page 2




      ACT authorizing a~ndempowering the Commis-
      sioners' Court to fix the compensation of
      Sheriffs in sll counties of this state,
      based upon the population thereof accord-
      ing to the last preceding federal census;
      fixing the minimum salaries of such offi-
      cers; providing the mode and inanner  for
      tne payment of same; oroviding extra com-
      pensation ~to said officers in certain
      counties; providing for supplementation
      of salaries for Sheriffs compensated on a
      fee basis, ,if necessalry;excluding retiards
      from such compensation or salaries herein
      provided; providing allowance of all neoes-
      saryexpenses incurred by said offiaers or
      their dep\itiesin the disoharge of their
                                                        _.:..~.. ~,?
      official dyti,eb,,and designrrtipg We .$uJrde .,_..i,~
      ~Utvk# whidl %ld expenses are to @.paia;
      providing for the purchase of n,eceeeary
      equipment for use by Sheriffs for the effi-
      cient 'operation'oftheir offices; provi,dlng
      thenmodes(ipd.fsanner,ofpaying for said ,&quip-
      ment; and desigtiatlngthe funds out of which '
      same shall be paid f'or;repealing all laws
      and parts of 'lawsin conflict herewith3o~'the:
      extent of the.conflict only; and declaring'" '~
      an emergenoy.
:BE IT EXACTED BY TBE LEGIYLATCRE OF TEE STATE'OF TEXAS:
                                                                       i ,:
     "Section 1. ExOept as otherwise provided .in this Act, the
Commissioners' Court in each county of this state shall have the
power and authority to fix the ,saleryof the Sheriff therein, :
based upon the last preceding federal census, as follows:              .,.
     "ia) In countriescontaining Ten Tiousand (10,000) or less
inhabitants, not less..thanThret Thousian:!
                                          Seven Bundred and
Fifty ($3,75C.O0) Dollars.
    Don. Carlton Noore, page 3


     :i            I"   ,In COUltibS containing as many as Ten Thousand
              and One (10,301) and not more than Twenty Thousand
              (20,000) inhabitants, not less th&n Three Thousana
              ($3,000.00) Dollars.

                   "(c) Iii counties containiag as many as Twenty
              Thousand and One (20,001)  SlldllOt more than Thirty-seven
              Thousand Five Hundred (37,500) inhabitants, not less than
              Three Thousand Six Hundred (<;3,6OOi,OO) Dollars,

                   w(d) In counties containing as many as Thirty-seven
              Thousand Five !lundredana One (37,501) and not more than
              Sixty Thousand (60,000) .inhabltants,not less than Four
              Thousand Two Hundred and fifty (34,250,OO) Dollars.
                   n(e) In .countiescontaining as many as Sixty Thou-
          :   sand and One (60,001) and not more than One Hundred
              Thousand (100,000) inhabitants, not less thanFive~
              Thousand Two Hundred ($5,200.00) Dollars.     .

                   *If) In counties containing as many as One.Hundred
              Thousand and One (iOO.001) and Bet more than One Hundred
              Fiftv Thousand
              ;,*ti&&&d       (.15&0.~0)inhab:i:tants,;
                       ~~~~~.,.H&.d~@+pj.;.560~      ,,~~,t.~;~gss.:,than,
                                                                   :I?.W
                                             oo)...:*~~la~~~~~;~.,.~.:~.~;:~.::.
                                                                    .ih
                                                                      T.1..
                                                                        ,'.
                                                                         :

                   v(g) In counties containing as many as One Hundred
              Fifty Thousand and One (150,OOl)and not more than Three
.             Hundred .Fifty-fiveThousand (355,000) inhabitants, not
              less than Seven Tho~usarid
                                       Four Hundred (#7,400.00) Dollars.
              v.(h)In counties containing more than Three Hundred
    ‘. I
    . -; Fifty-five Thousand (355.000) inhabitants, not leas than
         Ten Thousand (@O,OOO.OO) Dollars.
       I
              "Section 2. &ll salaries sha.11be paid in Twelve (12)
         equal installments per year, and paid from funds and in the
         manner now provided by law for payment of such officers, and
         providing that in a~ountieshaving an assessed valuation in
         excess of Twenty LXllion (~20,000,,000.00)Dollars, and less
       , than One ErundredTwenty Million (~120,000~000.00) Dollars
         according to
                                                                               '
Hon. Carlton %oore, page 4


   the last preceding approved tax roll of suoh counties,
   the amount allowed such Sheriffs as'salaries shall be
   increased one    r oent (l$) for each One Million
   ($1,000,000.00p"Dollars valuation or fractional part
   thereof in excess of said Twenty Xillion (~~20,000,000.00)
   Dollars valuation, and u;,to but not including One Hundred
   Twenty ?Jillion(~120,000,000.00) Dollars valuation, over
   and abov6 the amount allowed suoh offiosr as fixed salary
   by the Commissioners' Court; and providing that Sheriffs
   who art:conybnsated on a fee basis Instead of a salary basis
   shall have their salaries suppl6mented, if nscessary by
   the Co:!unissioners* Court  out of the Gemral  fund of the
   county, in order for the Sheriff thereof to receive the
   salary so fixed or allowed herein; and further providing
   that the compensation herein fixed or allowed for the
   Sheriff of any county shall be exolusive of any reward
   or rewards reaeived for the apprehension of crhinals     or
   fugitives from justice,    an& rewards received for the re-
   covery of stolen property.
          *Section 3. In addition to ,the foregoing salany
    provisions, ~11 necessar expenses incurred by any Sheriff
    or his deputies in the d3[
                             soharge of their Official duties
.:..
   ~shall.b.8allowed .by,~the.
                            .COJBUlissiOn8rs',
                                           .C+rt of the County
    of   theme Sh&rif’f+‘&“   +&id&$,   .‘upoh,-p~operly,‘authorizea   :m   :..
    report,,and paid out.ofthe General Fuhd or out of the-
    Offioers' Salary Fund of the aounty, as the oase may b’8;
    and, upon the sworn requisition of any Shdriff, certifying
    that any equipment (such as authmobiles, radfos, arms, etch.)
    is nscessary for the efficient operation of his OffiC8, the
    Commissionars~ Court of the CoUnty of the Sheriff's residence
    shallzauthorize the purchase of such equipment, and shall
    pay for the Bam6 out of the General Funds of the county.
          "Seotion 4. All laws and parts of laws insoonflict
    herewith are hereby repealed to th8 extent of the conflict
    only.
           ?Section 5. The feat that Sheriffs of th8 State of
    TbXas are now reC8iVing inSuifi~i8nt salaries iOr th8
    serviOes‘wi@ch thep are required to perform under the laws
    of this State, creates an bmergency ana an imperative pub-
    lie necessity that the constitutional rule requiring bills
    t0 be read on thr68 Several days in each Dous be SUSp8ndsd,
    and said rule is hereby suspended, and this Act shall take
    effect and be in force from and after its pa6sage, and~it
    is so enacted.*
lion. Carlton ?4oore,page 5


              Section 61, Art. XVI, or the State Constitution,
provides:
            "All district officers of the State of Taxas
      and all county officers in counties having a popula-
      tion of 20,000 or more, according to the then last preceding
      fedbral CBIISUS,shall from the first day of January, and
      thereafter, and subs.equentto the first rsgular or speoial
      session of th6 Lsgislature, after the adoption of this re-
      solution, be.compensatad on a salary basis. In all counties
      in this State, the commissioners' court shall be authorized
      to determine whether pr6cinct officers shall be compen-
      sated on a fee basis or on a salary basis; and in oounties
      having a population of less than 20,000, aooording to
      the then last pr6ceding federal census, the commissioners*
      courts shall also have the authority to datermine Whether
      county officers shall be compensated on a fee basis or on
      a salary basis..
  :          "All fees earn68 by dietriot, county and prealnat
      offioers shall be paid into th6 county treasury where
      88Zn8d for the account Of the proper fund provided.that
      f88S inOurr8d by the state, county and any municipality,
      or ,$n,pas*,..y@@re,       !5 o~a~.~,~,~a...:fila~~,~ii~~,~,;bs~~~~~d
                        .a,,pauper                                        i:;::::.~:iil~-:
                                                                                    ,~:.ri.:S
      .flit&
           ~~.'bountJi"t~ea~ury‘when~'Ooilect6d'and       provided that
      Where any officers 'are compensated wholly on a fee'basis,
      such fees may be retained by such offioer or paid into
      the treasury of the county if the pommissioners* oourt
      may direct.. All ,notary publics, aountg surveyors and
      pub116 weighers shall continue to be compensated on a
      fee basis,"
              In the 5a5e of Bexar County vs. Tynan, et al, 97 S. W.
(26) 467, it is Stated:

            "In the case of Clark vs. Finley, 93 Tbxa5, 171,
      54 S. W. 343, this court recognized that the substantial
      differences in populations of counties could be made a
      basis of legislation fixing oompensation of 6fflcers, on
      the thbory, as th6 court clearly recognized, that the Work
      devolving upon an officer Was in some degree proportionate
      to th6 population of the county. This has frequently been
         Hon. Carlton Moore, Chairman, page 6



              recognized by courts as creating a Sufficient dis-
              tinction to justify a larger oompensation for
              county officers in count168 having a large popula-
              tion as compared with compensation to like officers
              in counties having a small population. Conversely,
              we think it true that if the Legislature ignores
              the obvious fact that the work of cou;ltyEffbere
              is proportionate to ~opuletion and olassifies    coun-
              ties in srlchway that the oo3ipe:nsat:on  of officers
              in counties having a large population is fixed for
              below the compensation allanredlike officers in
              STdl COuIltibS,such action amounts to fixing a
              classificatioa which is arbitrnrj and which has no
              true r8veloncy to th6 :Nrpose of the iegisIation..."
                     Under the terms of Zouse Eill Go. 220, the Sheriffs
          incounties having a population of 10,000 or less inhabitants
          will receive an annual oomp6ns6tion of not less ?Gian$3,750.00,
          Sherifrs in counties having a population of 10,OOi and not more,       ~:
          than 20,000 Inhabitants will reoeive au amual ,oomptnsation.of
          not less than $?,OOO.CO. In oounties having a population of
        %~~20,000and not more than 31,500 inhabitants, the Sheriff wlll
;,:,
 :.i;.~~.,-Is:,.,:,,,rpa:~~ap..
                   an qnnuafi.                  than ~,43'i'~O~z~SO;'
                             ,9alary.~-.af~i~:not!..:less        .,:i~*wlll..'
         +e notbd t&t the.Sheriffs in counti6s having a population of
          10,001 to 37;500 inhabitants may reoeive a SxmJler compsnsation
         ":thanthe Sheriffs in co~unticshaving IO,OCO or less inhabitants.'
          JLS stated in Bexar County vs. Tymnn, supra, "If~the Legislature
          ignores the obviousfact that work of county of;icers is pro-
       ~ -,portionatsto population and classifies counties In such way
          that the compensation of officers in countiss having a large
        ~A'po_ouletionis fixed,for below the oomp6nsation allowed like
       i offioers in small Oountlea, Suoh action amounts to fixing a
          classification which is arbitrary and which has no true
          relevenoy to the purpose of the leglslation.W
                    Under th6 provision of Section 61, Article XVI of the
          State Constitution, all county officers in co.intieshaving a
          population of 20,000 or more inhabitants, sccording to thethen
          last preceding fnderal census, shall be compensated on a Silrgary
          basis, and in counties having a population of less than 20,000
          inhabitants, according to the then last preceding federal census,
        Hon. Carlton Koore, page 7


         the Commissioners1 Courts shall have the authority to determine
        whether county officers shall be compensated on a fee basis or
         on a salary basis. House Eill No. 220, supra, among other
         things, in effect provides that the She,r,$ffa
                                                      In all counties
         having a population of less than 20,000 inhabltznts, according
         to the last preceding federal census, will be compensated on a
         salary basis. The bill provides for a minimum compensation for
         Sheriffs in all counties and in counties where the Sheriff is
         compensated~on a fee basis, If his fees are not sufficient to
         meet the minimum compensation fixed by the bill, then the
         difference between the amount of fees and the minimum compensa-
         tion must be paid the Sheriff by the county out of his general
         fund. It is olear that the bill leaves no discretion with the
         Commissioners Court in counties having a population of less
         than,20,000 inhabitants, Under the express terms of Section 61,
         Artiale XVI of the Contitution, the Commissioners' Court in
         oountiee having a population of less than 20,000 Inhabitants, has
         the authority to determlne whether county officers shall be com-
         p&&ted   on a fee basis or a salary basis. Under the terms of
         House Bill No. 220, the Commissioners' Courts in oounties having
         a population of less than 20,000 inhabitants would be restrlctea
         with reference to the compensation of Sheriffs. The Courts could
         not fully,determine,whether the She,riffs~Rere,,t~o:,pe,,compepens.~ted
                                                                         ,,,.,.,.,
:,.:
  .i:;i;-~~~~~:;':':.~.~h":'a.btraPght
                       *ee“':q&.bps
                                :a$.'.h
                                      &~a.~@&:;.~~~&w.,.b&%&
                                                           ;‘;.;':.Tn.     .::::::,
                                                                 the!'::&vent  ~'..L
         the Commissioners* Court of suoh oountiesdetermine that Sheriffs
         would be compensated on a fee basis and the Sheriffs failed to
         collect fees sufficient to meet the minimum amounts set by the
         bill; then the county would be required to pay the Sheriff an
         amount out of the general fund sufficient to bring hZs compensa-
         tion&o the minimum provided by statute.
                   It is our opinion that 3&I.B. No. 220 oontravenasc.the
         provisions of Seotlon 61, Article XVI of the Constitution, where-
         in said bill attempts to divest the Commissioners' Court of
         counties having a population of less than 20,000 Inhabitants to
         determine wh6ther the Sheriffs shall be compensated on a straight
         fee basis or on a straight salary basis. It is our further opinion
         that:if the Legislature ignores the obvious fact that the work of
         county officers is proportionate to.population, and classifies
         count,iesin such a way that the compensation of offloers of a.
         county having a population of not less than 10,001 and not more
         than,20,000 inhabitants, or a county having a population of
Hon. Carlton Moore, page 8




20,001 and not more than 37,500 inhabitants, will be a smaller
amount of compensation than Sheriffs in counties of 10,000 or
less inhabitants, such ticticnamaunts to fixing a alassifioation
which is arbitrary and which has no true revelsncy to the purpose
of the legislati~on, It is our opinion that said House Bill hTo.220
is unaonstitutional.
                                  Yours   Very truly
                              ATTORNEY GEaRAL OF TEXAS


                                                            .
                             BY
                                     (a) k-dell Wlliams
                                               l&isistant




APPROVED Feb. 19, 1945                       dpprovea
First Assistant                              0pin:oLl
Attorney General                             Commltt+ee
(s) Carlos C. A,shley
