         OFFICE   OF THE ATTORNEY    GENERAL    OF TEXAE
                            AUSTIN




honorable C. J. Wilde
county Auditor
Nuecea   County
Corpus Chriati, Texas
Dear Sir:                  Opinion No. O-4883




                                               esting the opinion
of this department on                          eation reads as
follows:

                                                Allowance of
                                               nnum for Chief


                                     above caption would

                         , Section 5 of the Revised Civil

                         Commissioners Court, when in
                      such allowance is justified, the
                      per annum in addition to the regu-

          "Article 3902, Section 4-A, as reported in
     the 1938 Supplement of Vernon Texas Statutes, states
     - 'In counties having a population of 60,001 and
     not more than 100,000 inhabitants and containing a
    Honorable C. J. Wilde, page 2


        city of not less than 52,000 inhabitants, heads
        ~of the departments may be allow~edby the Commis-
        sioners Court,  when in their judgment such allow-
        able is justified, a sum of $200.00 per annum in
        addition to the amount herein before authorized,
        to either the cheif deputies or heads of depart-
        ments who shall have previously served the county
        for not less than two continuous years'.
              "Article 3912-E, Section 13, makes no refer-
         ence to an allowance of $200.00 annually in addi-
         tion to the regular compensation received by such
         deputy.
             "In view of the foregoing could the Commis-
        sioners Court of Nueces County allow the addition-
        al compensation based on Article 3902, Section 4-A
        when the officers of Nueoes County are paid under
        the Officers Salary Law.
             "In other words, could the Commissioners Court
        under the salary law pay the Chief Deputies the
        $200.00 per annum in addition to their regular com-
        pensation based on the last preceding Federal Census?"
              Section 4 of Article 3902, Vernon's Annotated Civil
    Statutes provides:
             “4 . In counties having a population of sixty
        thousand and one 60,001) and not more than one
        hundred thousand I100,000) inhabitants, first as-
        sistant or chief deputy not to exceed Twenty-four
        Hundred ($2400.00) Dollars per annum; other asslst-
        ants, de uties or clerks not to exceed Twenty-one
        Hundred P $2100.00) Dollars per annum each."
               Sections 4a and 5 of said Article (3902) read aa
    follows:
              “4a.  In counties having a population of sixty
         thousand and one 60,001) and not mo-ne than one
         hundred thousand I100,000) inhabitants, according
         to the preceding Federal Census and containing a
         city of not less than fifty-two thousand (52,000)
         inhabitantd according to the preceding Federal Cen-
         sus, heads of departments may be allowed by the




I
Honorable C. J. Wilde, page 3


    Commissioners Court, when in their judgment such
    allowable is ustified, the sum of Two Hundred
    Dollars ($200i per annum in addition to the amount
    hereinbefore authorized to either First Assistant
    or Chief Deputy, or other Assistants, Deputies
    or Clerks, when such heads of departments sought
    to be appointed shall have previously served the
    county or political subdivision thereof for not
    less than two (2) continuous years; provided no
    heads of departments shall be created except where
    the persons sought to be appointed shall be in ac-
    tual charge of some department, with Deputies or
    Assistants, under his supervision, or a department
    EIpprOVed by the Court, Andyonly in offices capable
    of a bona fide subdivision into departments. As
    added Acts 1937, 45th Leg., p. 581, ch. 290, 8 1.

         "5. In counties having a po ulation of one
    hundred thousand and one (100,001P and not more
    than one hundred and fifty thousand (150,000) in-
    habitants, first assistant or chief deputy not to
    exceed Twenty-six Hundred ($2600.00) Dollars per
    annum; heads of departments may be allowed by the
    Commissionerst Court, when in their judgment such
    allowance is justified, the sum of TWO Hundred
    ($200.00) Dollars per annum in addition to the
    amount herein allowed, when such heads of depart-
    ments sought to be appointed shall have previously
    served the county or political subdivision thereof
    for not less than two continuous years; other aa-
    sistants, deputies or clerks not to exceed Twenty-
    three Hundred ($2300.00) Dollars per annum each.
          Nueces County had a population of approximately
51,779 inhabitants according to the 1930 Federal Census, and
according to the 1940 census said County had a population
of approximately 92,714 inhabitants.
          Section 4a, aupra, was added by the 45th Legisla-
ture, Acts 1937, page 581, chapter 290, section 1. At this
time (1937) according to the then preceding Federal Census
Nueces County did not come within the population bracket
set forth in said Act. Nueces County does not come within
the population bracket set forth in section 5 (Article 3902),
therefore, said Section is not applicable to said County.
     Honorable C. J. Wilde, page 4
&*




               Section 13 of Article 3912e, Vernon's Annotated
     civil Statutes pertains to the annual salary of the county
     officials named therein and has no application with refer-
     ence to the salary or compensation of the deputies of such
     officers.
               Section 4 of Article 3902, supra, applies to all
     connties having a population of 60,001 and not more than
     100,000 inhabitants and the first assistant or chief deputy
     is allowed a salary not to exceed $2,400.00 per annum. Sec-
     tion 4a is applicable to the same counties as Section 4 ex-
     cept those counties containing a city of not less than 52,000
     inhabitants according to the preceding Federal Census. The
     peculiar limitations employed by the Legislature in this in-
     stance to segregate the class to be affected by the legisla-
     tion not only bears no substantial relation to the object
     sought to be accomplished by the Act, but the purported class
     attempted to be ao segregated is, in fact, not a class dia-
     tinction in any substantial manner from others in this State.
     There is nothing eculiar about a county having a population
     of not less than 80,001 nor more than 100,000 inhabitants and
     containing a city with the population of not less than 52,000
     inhabitants that marks it a suitable and peculiar field for
     the expending of public funds for the purpose set forth in
     Section 4a, Article 3902, supra.
               We have carefully considered Section 4a, supra, in
     connection with the opinion of the Supreme Court in the case
     of Miller et al vs. El Paso County, 150 S. W. (2nd) 1000 and
     the authorities cited therein and believe that under the hold-
     ing of the Miller case and the authorities cited therein that
     Section 4a, Prticle 3902, supra, is unconstitutional. There-
     fore, we respectfully answer the above stated question in the
     negative.
               Trusting that the foregoing fully answers your in-
     quiryf we are
                                            Yours very truly
                                       ATTORNEY GENERAL OF TEXAS


                                                 Ardell Williams
                                                       Assistant
