              OFFICE   OF. THE ATTORNEY GENERAL     OF TEXAS
                                  AUSTIN




Honorable      Sam L. Harrison
~OSeOUtiIk~      Attorney
Robertson      County
Franklin,      Texas

Dear Sir:




                Your letter  of J                , requesting    the
opinion       or this department                 salary of the Deputy
                                                 rt, as follows:




                            s ~aboliehed and the dutler of that
                            oed upon the office  of County atty
                            at way sinoe.   pe have 50 Co ; Co’itrt


          question as allowed under art..;, 3%02 or is it prohi-
          bited from 80 doing under art 3VlZf-37’ The popula-
          tion of Robertson,    1940, being 26710.. Please let me
          have’your opinion on tp*ab$e      question at your
          earlieet  convklence.
           As stated in your letter,    Robertson County has a
population  of 25,710 inhabitants    aocording  to the 1940 Federal
Censgs.
Honorable     Am L. &rrison,             page 2




              drtlole        3QlZti3,    ,$ernon*s   Annotate.4   Civil   Statutes,
reads,   in   part,     as    follows:



             “Section    1. In all oounties     in the State OS
    ‘Texas having a popu~tion       of not lea8 than(25,600)
     twenty-five     thousand six hundred and not more than
     twenty-five     thousand eight hundred and eighty-nine
     (25,889) ;aooordlng     to the last Federal Census, in
     which there are ~no distrlot      attorneys,    the oommis-
     aloners’ oourt of said oounty shall,         from ,and attar
     the effective      date of this A&t, oompensate the sher-
     irfa or such oountfes upon an aMual          salary baais
     and ehall fix then salaries     of suoh sheriifs     in auoh
     counties at .not lese than thirty-three         hundred ($3300.00)
     dollars   and not more than thirty-six       hundred ($3600.00)
     dollars   per aMUm* payable in twelve (12) equal monthly
      installments,    out Of the Officers’     Salary Fund 0;’ 8uoh
      oount ies by warrant drawn upon said fund.
              %eo..Z.     The sheriffs   of suoh oounties are
     hereby authorized       and ~empowered to appoint at least
     one deputy sheriff       and one speoial deputy sherlrr;
     the powers and duties        of the speofal deputy shall
     be the sane as those of other deputy aherifis             and;
     In addition,      a spee’ial deputy   shall be to assist      suoh
     sheriffs    in all matters arising      in and connected wfth
     the offioial      oonduot oil said oftioe,    including     the
     finger printing,      photography work, and investigation
     work of said otfioe.         The oomlssionera*      obwts    of
     such counties      shall, from and after     the efieative
     datd oi this Act, oompeneate suoh deputy sherirrs
     and such speoial deputy sherlfrs          upon an annual aal-
     arp basis and shall fix the salariee          of such speoial
     deputy sheriffs      at not exceeding one thousand two
     hundred ($1200.00)       do.llars per annum, payable in
     twelve’(12)      equal monthly installments      out   of the
     Oiiicers*dalary      Fund pf 8UOh oounties,      by warrant
     drawn    upon e.a.id Lund by the oo.mnlssloners’ oourt.
     The oompensation of the deputy sheriff           shall like-
     wise beg f ire4 at an annual salary not axoeeding
     one thousand ($lOOO,OO) dollare,          payable in twelve
      (12) equal monthly Installments        In lfke manner as
      provlded for the payment of the salaries           of’ 8peOial
     deputy sheriffs,      hereinabove   set out 8”
---.-YYd          win t.    Hdrrison,    p*ge 3
                                                                                          3.00



              Robertson    County  &as a population   oomiag within the
population    braoket mentioned in the foregoing       statute.     Said
statute   is applicable      to RobartaoA County,   however, a serious
queation as to the oonstitutionality         0s aaia statute     is me-
sented.    Heretofore     thia dsparttnent haa oarefull7     oonaidered
many statutes      similar to artlole    3912r-3, Vernon s knnotsted
Civil    StatUt88,         and&M   held 8UOh   8tUtUteS     uJ2OOmtitUtional      ea
suoh statute8 oontravena the nrovisioAa                   Of Section    56, Article
3 or the Stat6 COAEtitUtiOA.
                  Seation     56, ArtLo     3 of the State Xonetitution           pro-
Vid88,     in pUt,         a8 fOllOWSI


               Vha Legislature    ahall no t, lx o epaa
                                                      t other-
           Wis8  provided tn this Constitution,   pa88 any looal
           or 8p8Oial   laws, authorieingr
               uRe&ulutlng the 8ffsir8   0s countlea,               oitiea,
           towns, wards or aohool alatriota;
                  n* * *

                 "Greatin   OffiCea, or preeoriblng             the. powers~
           and duties 0s 0rricer8,      in oountiee,          cities,   towna,
           eleation    or sohooJ aiatrlot~



             It ia olear that the law under oonaideratfon                      (ArtTale
 3912f-3) regulates    the affairs of tha oountlea to
 and prescribe6    t&8 powers and auti0o of officers.     ya
 law or la it epsoial and looal la violation       of the
 ArtZcle 3, S8OtiOIl 587

                  Aa atateb'    in our Opinion No. O-22211

                  -* l *A law which appl.ies only to a psrt of
           a natural olass    Of persons    or  things must predi-
           oat8 its inolua:oA Of the part8 and exclusion             or
           tha balanos upon ohwaoteri8tiaa peauliar           to the
           part, whioh, oonafdering       the Obj8OtS and purpose8
           or the law, afford reasonable        soma    for restrio-
           ting the application     of the law to the part. Classi-
           fication    must be reasonable    find natUral, not arbl-
           trary and caprioioua. ,zrbitrary designation            is not
           olas8itiaation,    The vice 0s local or sp8oiel lam La
           that they rest OA arbitrary       designation;   that they
HonorAble Sam L, Harrison,       mge   4




      do not e&race and effedt      all the 0lass to whioh
      they are nuturally   related.     26 P.C.L., pp. 81%
      816;  12 AIS. Jur. p. 140; Smith Vo State, (Ct. Grim.
      App.) 49 3. W. (2d) 739; Randolph V, Stvte (Ct.
      Grim. App.) 38 3. W. (2d) 484; Clark v. Pinley,
      93 Tex. 151, 54 5. W. 343; City or Port Zorth vr
      Bobbitt,  121 Tex. 14, 36 5. W. 470, 41 5. W. (21l)
      228. Bezar County v. Tynan, 128 Tt~x. 223, 97 5.
      W. fed) 467r

             *Beoauso population      as a basis for olassifloa-
       tlon’has    been sustained     by tM oourte      in respeot’
       to legislation      on’oertain subjeots,       it has been as-
       sumed, erroneously,       that population braokete will
       serve ln all lnstanoea to avoid the condemnation
       of the Constitution.        This mistaken assumption         pre-
       oeeds from a failure       to note that population        has
       been sustained as a basis for olasslflcatlon              only
       in those instanoes where it bore a reasonable re-
       lation to the objects       and purposes     of the law and
       was founded upon a rational         dlfforenoe     in the neoes-
       sltlee   or oonditlona     of the group6     eubjeoted to dlr-
       ferent laws.      Where it has been determined that,
       oonsideriog     the objeote and purposes of the law,
       differenoes     in population afiord       no rational    baele
       for dlsorimineting      between grou?e of the 8~           natural
       class,   olaseitioatlon     on the basis of population has
       been termed arbitrary       ssleotion,     and the law has been
       held to be apeoial and looal.           Randolph v. St&e,
       8upra.”



            Seotl.on 66, Art1010 3 O? the State Conatltution     also
providea,   in effeot;    that the Legislature   shall not pass any looal
or epeoial   laws wherr a general law oan be made applioable      esoept
special   laws ror.the    preservation   OS gamn and fish of this State
in certain    looalitler.
            Article   3902, Vernon’s Annotated Civil Statutes               is
a general   la* $&&ding     the compensation payable to deputies
Or the varlous”~riloero     mentioned therein.  Said statute   la
amlioable     to Robertson  County.
    ” ‘Honorable    &m L. Harrison,    p;lge 5




                   After   oarefully  oonsldering    artlole  39121-3, eupra,
       in connection     with the foregoing    authorities   and the ease of
       killer,   et al, v. El Paso County, 150 Y, ,W. (Zd) 1000, and the
       authorities    cited timrein,   It is our opinion that said article
       (39121-3)   contravanes the provisions      of Seotion 56, Article     3
       of the State Constltutlon      and is, therefore,     unoonstitutlonal
       and void.
                    Article   3902, Vernon’s     bnotat8d           Civil   Statutes,         pro-
       vides,    In part;

                      *The oonpensatlon whioh may be allowed to the
                deputies,   assistants  or olerks above named for their
                servloes   ahal& be a reasonable  one not to exceed the
                following   amounts:
                      “2. In oountias having a population of twenty-five
                thousand and one (26,001)    and not more than thlrty-
                seven thousand five hundred (37,600).     Inhabitants,
                first    assistant or ohiei deputy not to exceed two
                thousand dollars($2,000.00)    per annum; other assist-
                nnts, deputies,    or olerke not to exceed seventeen
                hundred dollars(~1700.00)    per annum eaoh.’ * **

                   It is noted that you do not atate in your letter  what
        compensation the deputy sheriff  ir receiving at this time.    It is
        further noted that you do not state that the deputy in quseetion
        Is a chief deputy or other deputy as mentioned in the statute.
                    The roregolng provision     of Artiole  3902 (Sea. 2)
        is applicable   to Robertson County as said county has a popula;t.;n
        of 25,710 inhabitants      aocordlng  to the 1940 Federal Census.
        maximumannual     salariestb&tlnJ    oounty oonunlsslonera~ oourt can
        legally, authorize    for the ohle? deputy sherlrr of said oounty
        ia $2,000.    The maximumsalary for other deputy sheriffs          oannot
        legally   exoeed $1700 eaoh per annum. In flxlng the annual sal-
        ary of the ohlef deputy sheriff       or other deputies,   the oomm18-
        sioners’ court ia authorized to ilx suoh salaries         aa they deem
        reasonable,   not to exoeed the maximumheretofore        tentloned.
                                                                    Yours   very     truly

                                                            ATTORNEY’
                                                                   GONXRAL
                                                                         OF TEX.AY
                                                            By*d&
                                                                            Ardell       Willlams
                                                                                        Assistant



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