                           QMficeof tfy !ZlttornepQhneral
                                        &ate of Ptexas
DAN MORALES                              October 28,199l
 .ATT”RSEY
       GENERAL



     Honorable Gene Green                       Opinion No. DM-51
     chairman
     Senate Jurisprudence Committee             Re: Authority of a commissioners court
     P. 0. Box 12068, Capitol Station           to establish a pay scale for justices of the
     Austin Texas 78711                         peace based on the volume of cases filed
                                                in their respective courts (RQ-51)


     Dear Senator Green:

             You have requested our opinion regarding the authority of the Harris County
     Commissioners Court to establish a pay scale for justices of the peace based on the
     volume of cases filed in their respective courts. Specifically, you question whether
     this or any other classification scheme that results in a compensation differential is
     constitutional. You indicate that justices’ salaries are set on the basis of the number
     of cases filed in each justice court and that there currently exists a difference of
     nearly $10,000 between the salary of the highest paid and the lowest paid justice in
     Harris County.

           Article XVI, section 61, of the Texas Constitution requires that all justices of
     the peace be compensated on a salary basis. Section 152.013 of the Local
     Government Code provides, in pertinent part:

                   (a) Each year the commissioners court shall set the salary,
               expenses, and other allowances of elected county or precinct
               offkers. The commissioners court shall set the items at a
               regular meeting of the court during the regular budget hearing
               and adoption proceedings.




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Section 152.012 declares that the commissioners court “may not set the salary of a
justice of the peace at an amount less than the amount of the salary in effect on May
25.1973.“’

       In Attorney General Opinion JM-770 (1987), this office considered whether
the salary of each constable in a particular county was required to be equal. The
opinion concluded that

           the commissioners court may provide for different salaries for
           constables depending upon the circumstances in each precinct if
           the circumstances reasonably require different salaries and if
           each salary is in itself reasonable. The circumstances that may
           properly be considered relate to what constitutes a reasonable
           AarY.

In Attorney General Opinion JM-1019 (1989), this office addressed the question of
whether each county commissioner had to be paid the same salary. The opinion
held that only if there were “unusual circumstances” in the different precincts could
a salary differential be considered reasonable. The opinion based this conclusion on
the fact that, in the usual instance, the various commissioners have more or less
equivalent duties. By contrast, it was noted that

           the duties of a constable or justice of the peace are more
           confined to the official’s precinct than are the duties of a county
           commissioner and . . . therefore payment of different salaries to
           the former officials might reasonably correspond to some such
           officials’duties being more extensive than others’.

        Both these opinions recognize that there might exist circumstances in which
certain precinct offkials holding equivalent positions might be compensated in
differing amounts. Both emphasize that the specific amount “that constitutes a
reasonable salary is a fact question within the discretion of the commissioners
court.” See also white v. Commissioners Court of Nimble County, 705 S.W.2d 322


         tscetion 152.014 of the Local Government Code establishes a salary grievance committee in
each county, and section X52.016 dwcrii    the grievance proceduresto he followed by elected county
and precinctoffkers. If the tie-member grievance committee votes uoaaimously to increase tbc
individual’s compensation,  the commissioners  court is requiredto grant the iuawc for the next
budget year.




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(Tex. App.-San Antonio 1986, no writ). Neither opinion addressed the issue of
equal protection under the fourteenth amendment to the United States
Constitution, but you have raised it, and we will address it briefly.

         The United States Supreme Court has held that if a classification scheme,
other than one targeting a suspect class (such as one defined by race or ethnicity) or
affecting a fundamental right, has some reasonable basis, it does not offend the
equal protection clause merely because the classification “is not made with
mathematical nicety or because in practice it results in some inequality.” Dundridge
v. FElti,      397 U.S. 471. 485 (1970). Furthermore, such a difference created by
statute ‘will not be set aside if any state of facts reasonably may be conceived to
justify it.” Id. On the other hand, a classification scheme affecting a suspect class or
affecting a fundamental right will be subjected to a higher or strict level of scrutiny.
In such case, the classification will be held unconstitutional unless the state can
show that the scheme serves a compelling state interest that cannot be accomplished
by less drastic means. See PoIlard v. CockmU,578 F.2d 1002,1012 (5th Cir. 1978).

        Relying on Dandridge. the Supreme Court of West Virginia has upheld salary
differentials within a class of county officers. In State ex re& West Vii  Magistrates
Ass’n v. Gainer, 332 S.E.2d 814 (W.Va. 1985). the West Virginia court upheld a
salary system for county magistrates based on population. The court noted that
there was a disparity in judicial functions between the magistrates of small and large
counties. As a result, the legislature’s basis for the salary classification was not
“wholly irrelevant to the achievement of the State’s objective” and, therefore, not
violative of .equal protection. Id. at 816, 818. Subsequently, the same court
invalidated a scheme whereby the magistrates in five particular counties received
greater compensation than those in other counties of roughly equal population.
State er reL L.ongwracre v. Crabtree, 350 S.E.2d 760 (W.Va. 1986). In reaching this
conclusion, the court noted that a “heavier workload” was a relevant factor that
could provide a rational basis for a salary differential. Id at 763.

       Finally, in State er reL Moody v. Gainer, 377 S.E.2d 648 (W.Va. 1988), the
court again upheld a population-based salary system The magistrates of the smaller
counties had argued that they processed as many cases as their brethren in the
larger counties. The court found that this statement was not supported by the
evidence, which in fact showed that magistrates in the larger counties handled a case
load more than twice that of the magistrates of the smaller counties. It is significant
for our purposes that the court never questioned that a case load disparity could
properly form the basis for a salary differential. See ulso Weirsman v. Evans, 438



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N.E.2d 397 (N.Y. 1982) (wage differential between district judges of adjacent
counties violates equal protection where the workloads and populations are similar).

        In our opinion, application of this test to the situation before us requires the
conchtsion that a salary differential based on the number of cases filed is not per se
unreasonable. Of course, as prior opinions have observed, the specific amount that
constitutes a reasonable salary “is a fact question within the discretion of the
commissioners court.” If, as you suggest, the salaty differential here in reality targets
a suspect class or burdens a fundamental right, a court applying the strict scrutiny
test of equal protection law would,almost certainly deem it unconstitutional.2

                                        SUMMA&X


                A pay scale differential for justices of the peace in the same
           county, based on the number of cases filed in each court, does
           not, on its face, violate the equal protection clause of the
           fourteenth amendment to the United States Constitution. If,
           however, the case load scheme is merely a facade to mask an
           unconstitutional    classification, it tiould fail to meet
           constitutional standards.      These considerations require the
           resolution of fact questions that cannot appropriately be made
           in the opinion process.

                                                            Very truly yours,




                                                            DAN      MORALES
                                                            Attorney General of Texas




          We cannot imagine an argumeot that such a chsitication   in this contcxl saves a compelling
state interest.




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WILL PRYOR
First Assistant Attorney General

MARY KELLER
Executive Assistant Attorney General

JUDGE ZOLLIE !XEAKLEY (Ret.)
Special Assistant Attorney General

RENEAHIcKs
Special Assistant Attorney General

MADELEINE B. JOHNSON
Chair, Opinion Committee

Prepared by Rick Gilpin
Assistant Attorney General




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