.




         OFFICE    OF THE AmORNEt          GENERAL    OF TEXAS
                                  AUSTIN




    Hon. Qilbert Smith
    County Attorney
    Jones County
    Anson, Texas
    Dear Sir:


                            allowed   to




                                                     the following
                                                     e, two and three,




                                            t a County have a
                                              48,900, before the


                                  ally neceesary that the Coun-
                                  lflcally  authorized In view of
                                  which it says that any officer
                                    County or precinct may.employ
                                ‘the approval of the Commisslon-
          er*s    Court?’
            Article     3502,   Vernon’s Annotated Civil Statutes,
    is    a general     StatUt8   authorizing the appointment of de-
    puties,       assistants    or clerks by “any ~lstrict,  county or
    precinct       officer”.
.




    Hon. Gilbert     Smith, page    2



                  The first   sentence   of said article    reads as fol-
    lows:
                    Whenever any district,
                                      ._        COutIty or
                                                        _ _precinct
            officer    shall require tne services     of deputies,
            assistants    or clerks in the performance of his
            duties he shall apply to the county commisslon-
            erqs court of his county for authority         to ap-
            point such deputies,     assistants   or clerks,    stat-
            ing by svorn application      the number needed, the
            position    to be filled  and the amount to be paid
            ***a

                S&ion     38 of Article   3902, Vernon's Annotated
    Civil Statutes,    referred   to In y      letter,    vhlch attempt-
    ed to authorize the county judge T f counties having a
      opulation of not 18~~ than 48,000 and not more than
    t 9,000 inhabitants,    according to the preceding Federal
    Census, to employ one person aas office          assistant,  book-
    keeper and stenographer’,      has been declared void and un-
    constitutional    by this department in opinion Ho. O-364
    by the Honorable Ardell. Williams, Assistant Attorney
    Qeneral.
                Section 3a of Article    3902 having been held un-
    constitutional,    th8 46th Legislature   during its regular
    session passed Article    3903c, Vernon’s Annotated Clvll
    Statutes,   which reads as follows:
                   “That the County Judge in all counties In
            Texas having a population    of not less than forty-
            eight thousand, six hundred (48,600) nor more than
            forty-nine   thousand (49,000) according to the last
            preceding or any future Federal Census be em-
            powered to appoint an Assistant.
                  "The salary of such Assistant shall be in an
            amount not to eXC88d Eighteen Hundred Dollars
            ($1800) per annum and shall be subject to the
            consent and approval of the Commissioners Court
            of such counties.   Acts 1939, 46th Leg., H. B.
            #log6.”
              The question of the constitutionality               of Article
    3903c is not befOr us ln this bpinion,     and it           is not ne-
                                                                            ,




Hon. Gilbert      Smith, page 3

cessary to pass upon the validity            of the article     in order
to answer your inquiries.
              Jones County has a population         of   24,233 persons
according     to the last Federal Census.
             Article   39128,    Section   13, Vernon's     Annotated
Civil    Statutes,   provides:
                "The Commissioners'       Court in counties having
        a population Of twenty         thOUsand (20,000) lnhabl-
        tests or more, and less than one hundred and
        ninety thousand (190,000)          Inhabitants according
        to the last preceding Federal Census, Is hereby
        authorized and It shall be its duty to fix the
        salaries    of all the following       named officers,
        to-wit:    sheriff,    assessor    and collector      of taxes,
        county judge, county attorney;includLng                  crimi-
        nal district      attorneys and county attorneys
        who perform the duties of district            attorneys,
        district    clerk,    county clerk,    treasurer,       hide
        and animal inspector.          Each of said officers
        shall be paid.ln       money an annual salary in twelve
        (12) equal installments         of not less than the
        total sum earned as compensation by him in his
        official    capacity for the fiscal        year 1935, and
        not more than the maximum amount allowed such
        officer    under laws 8xistFng on August 24, 1935;
        provided that In counties havfng a population
        of twenty thousand (20,000) and less than thirty-
        seven thousand five hundred (37,500) according
        to the last preceding Federal Census, and having
        an assessed valuation        in excess of Fifteen Mil-
        lion ($15,000,000)       Dollars,    according      to the
        last approved preceding tax roll of such county
        the maximum amount allOVed such officers                 as sala-
        ries may be increased one (1s) percent for each
        One MIllion ($l,OOO,OOO) Dollars valuation or
        fractlonal     part thereof In excess of said Fifteen
        Million    ($15,000,000)     Dollars valuation        over and
        above the maximum amount allowed such officers
        under laws existing        on August 24, 1935; and provided
        that In counties having a po ulation of thlrty-
        seven thousand five hundred s 37,500) and less than
        sixty thousand (60,000) according            to the last pre-
        ceding Federal Census, and having an assessed
.




    Hon. C;ilbert   Smith, page 4

         valuation In excess of Twenty Million      ($20,000,000)
         Dollars,  according to the last preceding approved
         tax roll of such county, the maxImUmamount allow-
         8d such officers   as salaries, may be Increased
         one (1s) percent for each One Million      ($l,OOO,OOO)
         Dollars valuation or fractional     part thereof,    In
         excess of said Twenty Million    ($20,000,000)    Dollars
         valuation over and above the maximum amount allov-
         ed such officer   under laws existing   on Augus~t 24,
          1935.
               "(a) The Commissioners1 Court niay authorize
          the employment of a stenographer by the county
         judge and pay for such services    out of the gene-
          ral fund of the county to an amount not to ex-
          ceed Twelve HU!Idr8d ($12004 Dollars per year.8
         ‘(UnderscorIng ours).
              Th8 prOVisiOn     Of Article   39128 would apply   to
    Jones county.
              Articles 3902 ahd Section 13(a) of Article   39128,
    hoWeVer, appear to be In OonfllOt in respect to the author-
    ity of the county judge in appointing an assistant   or steno-
    grapher.
                This department has rUl8d on practically     the
    saue question in opinion Ho. o-282 by the Honorable Ben-
    jamin Woo&all, 4sslstant    Attorney General, who rendered
    an opinion on whether a county judge, who has hereto-
    fore employed a stenographer on the basis of $100.00 per
    month, may now employ an assistant     on the'basls  of $125.
    per month. Citing Articles      3902 and Section 13(a) of
    Article   3912e, it was held that the special provisions
    of Article   3912e would control   the general statutes,
    and that the county judge would be precluded from pay-
    ing the county judge’s    stenographer in excess of $1200.
    39 TFX. JUR., 212, 1 114, and cases cited.
               SeCtiOn 13(a) Of Article  3912e is a definite
    limitation  upon Article 3902 in respect to the counties
    to which it applies and since it speclflcally     controls
    the case of the county judge's assistant    or stenographer,
    It removes the county judge from the coverage of the
Hon. Gilbert     Smith, page 5

phrase    "any district,   county or precinct       officer'      of
Article    3902.
            To hold othervise would in effect   sanction the
appointment by the county judge of 'deputies,     assistants,
and clerks"   in addition to a stenographer authorized un-
der Article   3912e, Section 13(a).   It cannot be presumed
that such was the intention   of the Legislature.
             Finally,  nowhere else in Article  3902, supra,
Other than in the void Section 3(a) are we able to find
a legislative     grant of authority  to the county judge  to
employ an "office     assistant,  bookkeeper ahd stenographer".
             Article   3902 authorizes      th8 appointment of de-
puties,    assistants,    clerks,   etc. by county officers     gene-
rally.   While in the firstsentence,           It reads *any dis-
trict,   COUUty or preCinCt       Officer",    in Betting Out the
compensation which may be allowed the appointed deputies,
assistants     or clerks,    no reference     other than that con-
tained in the unconstitutional           Section -j(a) is made to
the county judge and an assistant           for him. The special
provlziom      of the Act control the General          and from the
language of Article       3902 and Section 13(aj of Article
3312e, it appears that the county judge is without un-
limited authority      to appoint an assistant        or pay him
any salary.
           It Is our opinion that a county commissioners1
court is not authorized under Article   3902, Vernon's bno-
tated Civil Statutes,   in the absence of a specific   grant
of power, to pay any salary for an assistant    for the
county   udge, and that in view of the provislons    of Sec-
tion 13i'a) of Article  39128, Vernon's AMotat8d Civil Sta-
tutes, applying to counties with population    of 20,000 in-
habitants or more, and less than 190,000 inhabitants,      the.
county judge in such counties can only employ a stenogra-
pher with the approval of the commissioner18 court at a
salary not to exceed $1200.00.
               Trusting that the abOV8 fully answers the thr88
 inquiries     contained in your letter,  we are

                                            Yours    V8I7      truly

                                       ATTORKEYGRNRRALOF TKIAS
                                       By    (8)     Dick Stout
                                                      Assistant
DS:ob
APPROVEDOCT 13, I%+-
                             APPROVEDOPINION COMMITTEE
Robert E. Kepke              BYBWR CHAIRMAn
Acting ATTORNEYGRNRRALOF TEXAS
