                    THEATTORNEYGENEFZAL
                               OFTEXAS
                              AUSTIN   1%. TEXAS

   W’ILL   WILSON
AlTORNEY      GENERAI.
                                  March 26, 1962

       Honorable Guy E. Jones             Opinion No. w-1282
       County Attorney
       Bowie County                       Fk?: Constitutionalityof House
       Old Federal Building                    Bill 912, Acts of the 57th
       Texarkana,Texas -                       Legislature,Regular Ses-
                                               sion 1961, chapter 516, page
                                               1138, codified in Vernon's
       Dear Mr. Jones:                         as Article 3936f-1, V.C.S.
                 Youhave requested our opinion on the constitutionality
       of House Bill 912, Acts of the 57th Legislature,Regular Session
       1961 chapter 516, page 1138, codified in Vernon's as Article
       3936~~1, V.C.S., which reads as follows:
                "An Act raising~the,,maximwfees that may be re-
                    tained by,justicesof the peace in counties
                    of more than fifty-nine.thousand (59,000)
                 .'.and not more,than sixty thousand (60 000)
                    persons according~tothe last preceding Fed-
                    era1 Census; repealing all laws in conflict;
                    and declaring an emergency.
               "Be it enacted by the Legislatureof the State of
                Texas:
                   "Section 1. In all counties of this State
              having a population of more than fifty-nine thou-
              sand .(59,000)and notemore than sixty thousand
              (60,000)persons according to the last preceding
              Rederal Census, justices of the peace shall re-
              ceive maximum fees of Four Thousand, Nine Hundred
              Dollars(&,900) each per year.
                   ‘!Sec. 2. The Coani.ssionersCourt is hereby
              authorized and it shalIl.betheir duty to see that
              all justices of the peace can collect and keep on
              a fee basis, Four Thousand, Nine Hundred Dollars
              ($4,900) per year, other fees.exceedingthis
              amount to,be~turnedover to the county to be cred-
              ited to the Road and~BridgeFund of that county.
                   ‘Sec. 3. All laws or parts of laws in con-
              flict with the provisions-ofthis Act are repealed
              to the extent of such conflict only.
 Honorable Guy E'.'Jones,page 2 Ww-1282>

           Wet. 4. The fact that justices of the
      peace in these counties are not properly com-
      pensated creates an emergency and an impera-
      tive public necessity that the Constitutional
      Rule requiring bills to be read on three sev-
      eral days in each House be suspended,and this
      Rule is hereby suspended,and that this Act
      take effect and be in force from and after its
      passagej and it is so enacted."
           Section 56 of Article III of the Constitutionof Texas
 provides in part:
           "The Legislatureshall not except as
      otherwise provided in this Cons&itution,pass
      any local or special law . . .
           "Regulatingthe affairs of counties . . .
          "Creating offices or prescribingpowers
     and duties of officers, in counties, . . .'I
           The Court, in Jameson v. Smith, 161 S.W.2d 520 (Civ.App.
1942, error ref. w.o.m.), held that a local law authorizingaddi-
tional compensationfor county commissionerswas in violation of
Section 56 of Article III of the Constitutionof Texas. The courts
of this State have consistentlyheld that a classificationas is
contained in House Bill 912 above quoted would violate the provi-
sions of Section 56 of Article III, Clark v. Finlev, 93 Tex. 171,
54 S.W. 343 (1899); Oaklev v. Kent, 181 S.W.2d 919 (Civ.App.1944);
Miller v. El Paso County, 136 Tex. 370, 150 S.W.2d 1000 (1941);
Anderson v. Wood 137 Tex. 201, 152 S.W.2d 1084 (1941);and Bexar     "
County v. Tynan,'128 Tex. 223 97 S.W 2d 467 (1936). In the latter
case, the Court stated at 97 A.W.2d 4jO:
          "Notwithstandingit is true that the Leg-
    islature may classify counties upon a basis of
    populationfor the purpose of fixing compensation
    of county and precinct officers,ye
                                     t
    the classificationmust be based unon a real d&
    tinctioq a d must not b arbitrarv or a devie -
    to eive wha? is in subs&&e a 1ocal or snecia
    law the form of a eeneral law. . . .
          "'The rule is that a classificationcannot
    be adopted arbitrarilyupon a ground which has no
    foundation in difference of situation or circum-
    stances of the municipalitiesplaced in the dif-
    ferent classes. There must be some reasonable
    relation between the situationof municipalities
    classified and the purposes and objects to be
    attained. There must be something . . . which in
    some reasonable degree accounts for the division
    into classes.'
-   .




        Hon. Guy E. Jones, page 3   &w-1282)


                  ‘1.. *
                 "In the case of Clark v. Finley, 93 Tex. 171,
            54 S.1$.343, this court recognized that substantial
            differences in populationsof counties could be made
            a basis of legislationfixing compensationof offi-
            cers, on the theory, as the court clearly recognized,
            that the work devolving upon an officer was in some
            degree proportionateto the population of the county.
            This has frequently been recognized by courts as cre-
            ating a sufficientdistinctionto justify a larger
            com3ensationfor county officers in counties having a
            large poptila~tion
                             as compared with compensationto
            like officers in counties having a small population.
            Converselv.we think it true that if tine leeislature
            ignores the obvious fact that the work of county of-
            ficers is oronortionateto populationand classifies
            counties in such a way that the comoensationof of.$&-
            cers of a county having a large DOD&&&~    is f&&
            far below the comne&sationallowed~w     . .
            small counties. such action w       to flxlne-
            ificationwhich is aruarv     and w .    . no w
            cancv"                                         (Em-
            phas?s added-.)
                  The classificationof "in all counties of this State
        having a population of more than fifty-nine thousand (59,000)
        and not more thansixty thousand (60,000)persons according to
        the last preceding Federal CensusI1is applicable only to Bowie
        County at the present time. Such classification,according to
        the authorities cited above, constitutesa local or special law
        in violation of the provisions of Section 56 of Article III of
        the Constitutionof Texas.
                  You are therefore advised that House Bill 912, Acts
        of the 57th Legislature,Regular Session 1961, chapter 516, page
        1138, is, in our opinion, unconstitutional. In view of our an-
        swer to this question, it is unnecessaryto answer your remain-
        ing questions.

                                    SUMMARY
                 House Bill 912, Acts of the 57th Legislature,
            Regular Session 1961, chapter 516, page 1138, rais-
            ing the maximum fees that may be retained by jus-
            tices of the peace in counties of more than 59,000
            and not more than 60,000 persons is applicable only
                                                            ,   -




Hon. Guy E. Jones, page 4    (WW-1282)


    to Bowie County and constitutesa local or special
    law in violation of Section 56 of Article III of
    the Constitutionof Texas.
                                Yours very truly,
                                WILL WILSON
                                Attorney General of Texas




JR:ms:wb

APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Irwin R. Salmanson
Iola Wilcox
W. 0. Shultz
PEVIEWEDFW   THE ATTORNEYGENERAL
BY: Houghton Brownlee, Jr.
