                                October   18, 195’1


Hon. John R. Creighton                    Opinion No. V-1325
County Attorney
Palo Pinto county                         Re:   Applicability  of S.B. 362,
Palo Pinto, Texas                               Acts 52nd Leg., R~.S. 1951,
                                                ch. 264, p. 424. to Palo
Dear    Sir:                                    Pinto County.

           You have requested an opinion as to whether the Com-
missionersD    Court of Palo Pinto County may elect to compensate
constables   and deputies under the provisions of Senate Bill 362,
Acts 52nd Leg., R.S. 1951, ch. 264, p. 424.

          Section 1 of Senate Bill        362 authorizes   county commis-
sioners’ courts to supply or pay          for transportation   of constables
and deputy constables   under one         of several optional plans out-
lined in the statute.  Subdivision        (e) of Section 1 reads:

            “This    Act shall not apply to counties having a
       population    of less than twenty thousand (20,000)
       people :”

               Your letter   requesting   an opinion   contains   the following
statement:

             “According to the preliminary    report of the 1950
       census, Palo Pinto County has a population of slightly
       over 18,000 people.   Estimates   of reliable civic organ-
       izations,  Chambers   of Commerce,    etc., place the pres-
       ent population at well over 20,000 people.“.

You point out in your letter that Senate Bill 362 does not state the
method by which population is to be determined,    such as “accord-
ing to the last Federal census.”

          Chapter 1 of Title 61 (Article,s 3882 et seq,), R.C~.S. 1925,
provides for the compensation    and ‘expenses of district.  county,
and precinct officers.  Article 3889, which is a’part of this chap-
ter, reads:

            “The preceding Federal census shall govern as
       to population in all cases under any provision of this
       chapter.”
Hon.   John   R. Creighton.   page 2      (V-1325)




           While the Legislature    has not expressly  made Senate Bill
362 a part of Chapter 1 of Title 61, this statute deals with compen-
sation and expenses of precinct officers,      and we think it was the in-
tention of the Legislature    that it be construed in conjunction with
the articles  of this chapter.

           We note that Senate Bill 362 has been unofficially   codified
 as part of Title 120 of the Revised Civil Statutes, r.elating to Sheriffs
 and Constables.   However, an unofficial codification   has no effect on
 the operation of an act of the Legislature  and may be disregar~ded.
,Att’y Gen. Letter Op., July 15. 1949, addressed   to Hon. Jesse G. Fos-
 ter.

           In former years the Legislature          used various standards for
determining    population classifications       for compensating     county and
precinct officers.      Sometimes     the vote in the last preceding pr~esi-
dential or other election was used.          See, for example, Acts 25th Leg.,
S.S. 1897, ch. 5. p. 5, sets. 7, 10. and 17. However, these standards,
which were dependent on many contingent factors and were therefore
not satisfactory,     gave way to the, use of the preceding Federal cen-
sus as the customary       standard.,    In 1913, the Legislature    amended
Article 3887. R.C.S. 1911, so as to provide that “the last United States
Census shall govern as to population in all cases” in determining              the
compensation      of these officers.     Since that time, this standard has
prevailed almost exclusively.          Occasionally    the Legislature   has va-
ried this pattern in exceptional        cases. but in those: instance,s it has
specified the standard or method by which population is to be ascer-
tained.   See, for example,     Article 326h. V.C.S.

          Senate Bill 362 does not grant authority to any person or
body to determine     the population of a county, nor does it set out the
sources from which information          as to population is to be obtained.
In view of legislative   practice.    considered    along with~Article   3889,
supra, we think the failur,e of the Legislature        to state the method by
EliIEh population is to be determined        is more indicative oft an inten-
tion that the preceding Federal census is to control~than that some
other method is to be used.        In Brooke v. Dulaney, 100 Tex. 86, 93
S. N. 997 (1906). the Supreme Court of Texas held that since the Con-
stitution had provided that population for certain purposes should be
determined by the preceding Federal census, it contemplated              that
population for a similar purpose under another section of the Con-
stitution should be determined by the same method, although it did
not expressly   so state.   The same reasoning is appropriate          here.
We are of the opinion; therefore,        that the preceding Federal census
is to be used in determining       the applicability   of the provisions   of
Senate Bill 362.
Hon.   John R. Creighton,   page 3    (V-1325)




         According    to the final report of the 1950 Federal census,
the population of ~Palo Pinto County is 17,154.    This census is the
correct measure    of population to determine    the applicability of
Senate Bill 362 to your county.     Att’y Gen. Op. V-1175 (1951). Since
Palo Pinto County has a population of less than twenty thousand
people, Senate Bill 362 does not apply to it.


                              SUMMARY

             The Commissioners’     Court of Palo Pinto County
       may not elect to compensate     constables and their
       deputies under Senate Bill 362, Acts 52nd Leg;. R.S.
       1951. ch. 2, p. 424, since this county has a popula-
       tion of less than twenty thousand people according to
       the final report of the 1950 Federal census.

                                            Yours   very   truly,

APPROVED:                                   PRICE DANIEL
                                            Attorney General
J. C. Davis, Jr.
Countv Affairs   Division

Jesse P. L&on, Jr.                          BY
Reviewing Assistant                         Ro
                                                     Assistant
Everett Hutchinson
Executive Assistant


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