     Gerald C. E%nn
    Attorney General


             Donorable Euaene Bra&v
             Assistant Co&y   Attoiney
             Eunt county
             Greenville, Texas
             Dear Sir:                   opinion NO. o-2973
                                         Be: Salaries of county officers of
                                             .EZuntCounty, Texas
                       Your request for opinion has been received and
             carefully considered by this Uepartment,.,\Bequote from your
             request as foilows:
,                       "I respeatiully request opinion from you
                  as to salaries to be paid County Cffloers in
                  Hunt County, Texas, such facts as are neoassary
     ,;_+_.,:,
         .: :,.q...ar.e
                      8 et ..,
                     ,,,.   mat  k&wdn. ..~.~~.~,~q~~sk.,~,~~..~~~p~~~:.,~~~
                              ,,,..
                                ~,..                              I:.;:;
                                                                     -. ~*
                                                                         .i~~_
                        Taunt   County, Texas, aoaording to the'laat
                   preaeding FeUeral Census has a population of'
                  @,717.      The total taxable valuation for 1940
                   is $20,1&2,000. All County Officers are and
                  have been compensated on a salary basis slnoe
                   the General Salary Law went into effect in 1936.
                  Al.1preolnot offloere are still compensated on
                   a fee basis. During the year 1935 all County
                   Officers except County Judge earned fees of
                   office in excess of $4,250.00 per year. county
                   Judge earned Sees of $3,100.00 during that year.
                   The earned tees of'the County Treasurer during
                   the year 1935 were in excess of $2,000. The
                or population of Hunt County ,aaaordingto the 1930
                   Census was 49,016.
                         ". . .

                       Tn~er the above law and state of facts
                  quoted it is i;u7
                                  opinion that it would be the
                  duty of the Commissioners Court to set salaries
                  of !;heriff,Tax Assessor and Collector, County
                  Clerk, District Clerk. County Attorney at an
Honorable Xu(;eneBrady, Page 2


     annual salary of not less'than $4,250.00 par
     year and not more than $&,292.50 per year. That
     it would be the duty of said court to set the
     County Judge's Salary at a salary of not 166s
     than $3,000.00 per year snd not mope than $&,292.50
     per year.
          NArtlcle 3887a provides: 'In all oountiee
    in the state of Texas having a population of
    more than 48,540 and less than 48,800 acaording
    to the last preceding or any future ?ederal Cen-
    sus where the Commissioners Court shall have
    determined  or shall determine to compensate the
    County Attoneg of such county upon an annual
    salary basis according to law, such Court shall
    fix the salary of such County Attorney at not to
    exoeed $Z,&OO.OO per annum.' This artlcls wa6
    passed in 1937, Forty Fifth Legislature, Seaond
    Called Session. It is my Information that this
    Article never beoams a law for the reason that
    it was passed at a special session of the Legis-
    lature and was not within the Governor's aall for
    that 6peOial 6e88iOn. but notwlthetanding that I
    m -of'the~oplJl~~~.%&bo,gai&,~~ale::,~ul~..ag~~.~:~ '~"
    the less be inoperative for reaaone set out and
    d5.a&seed below.
          "Article 3883d provides: Section 1: 'That
     from and after January 1, 19&O, being the effeo-
     tive date of this Act, in all oOUnti0S in this
     State having a population of not less than 48,530
     and not more than 48,930 acaording to the last
     preaeding Federal Census, the Commissioners Court
     shall have the povlerand authority to flx the Sd-
     aries of the Shari??, the tax assessor-collector,
     the aounty clerk, the county judge, the distriot
     clerk, and the oounty attorney; provided, however,
     that the salary of the sheriff shall not be flxed
     in excess of the sum of *J+,250per annu'c,nor less
     than the SW of 33,600 per annum; the salary of
     the tax assessor-collector shall not be fixed in
     excess of the sum of $&,OOO per annum, nor less
     than the sum Of $3,600; the salary of the County
     clerk shall not be fixed in excess of the sum of
     $4,000 per annum, nor less than the sum of $3,300
.-
     :'!onorable
               3qene   Brady, rage 3


         PEIT~dlUI?l; the salary of the county judge shall
         not be fixed in excess of the sum of $3,200 per
         annuT nor less than the sum of $2,700 per annum;
         the salary of the district olerk shall not be flr-
         ed in excess of the sum of $3,300 per annum, nor
         lese than the sum of $2,700 per annum; the salary
         of the aounty attorney shall not be fixed in ex-
         oess of the sum of $3,000 per annum nor less~than
         the sun of $2,700 per annum.'
              "It Is my opinion that both of the last two
         quoted articles are unoonstitutional in that they
         are in fact speoial laws even though they purported
         to be General Lawe, as examination of the oen6u6
         figures for 1930 show that at the time they were
         passed they applied to only one aounty, Bowl8
         County, and there exist6 none66onable ba6i6 in faot
         for suoh a olassifioation a6 set out by you in your
         opinion No. O-1020 and O-899.
              *I also believe that they should be held nnoon-
         6titutional under following oase6:


              "wood ~6. &U-f6 Independent Sohool Diatriot,
         123 SK (2d) 429.
              "Brownfield va. Tongate, 109 SW (26) 352.
         and many other oases referred to in these opinions.
              "For these reasons I believe that Artioles
         j88jd and 3887a referred to above are unoonstitu-
         Mona1 and that it would be neaessary to go baok
         to the General laws as set out above for the deter:
         &nation of salaries to be paid County Offiaers in
         this county.
              "Article 1645 provide,sfor the appointment of
         County Auditor, 'who shall be compensated for his
         servic,ss$125 for each million dollars or major
         yorticn thereof on the assessed valuation. The
         annual salary to be co,mputedfro:%the last approved
         tax Toll.' 'As set out above the last approved tax
.-
     Honorable ?ugene Brady, Page 4


           roll of thla county Is $20,142,000. Therefore
           under this law the County auditor would be an-
           titled to aompannsatlonIn the amount of $2,500
           per year.
                *Article 1645d, Section 1 provides *In all
           oountlee in this state having a population of not
           less than 45,000 inhabitante nor more than 50,000
           inhabitants acoordlng to the last Federal Census
           as same now exists or'may hereafter exist the
           County Auditor shall receive an annuaI salary
           from county funds of $4,000 to be paid in equal
           monthly lnetallments out of the General Revenues
           of the county.' This aat was passed by the Forty-
           Fifth Legislature In 1937.
                WArtlcle 1645e, Section 1 provldear 'That in
           countlee having a population of not lean than
           46,600 nor$more than 49,000 aoaordl.ugto the lart
           preaedlng Be6oral Cansus the oompeneatfen of ea&
           county Auditor shall bs 83,600.t This aat bmmme
           efteotlre October 25, 1937.
                 *For the rea(1onamet out above It ie my opin-
     .,,   Zion:,m*..b&&G,~:~:*~Ja8.t..*m.:.
                                          pufbw. :m.*&*Re.L-,
           In taot apeofal lawa an&are theeefoxv WW@~~~~U-
           tional and that it would be necessary to rely on
           drtlcle 1645 as set out above In settfng the salary
           of the County Auditor of this county.    ,
                 *Article 3943 which was etreotlve on August
           24, 3.935,provides: 'That the Commlsslona allowed
           to the County Trearurer ahall not exceed $2,000
           annually. This article taken in connection with
            Artlole 3912e quoted above sets the limit wlthin
           whloh the Commlsslonere Court may set the Tre~ur-
           t3r’a Salary. It his fees in 1935 were in exeea8
           of #2,000 It 18 my opinion that it would bs the
           duty of the Commissionore Court under suah law to
           set the salary oi the County Treasurer at $2,000
           per year.
                "1 shall appreciate an opinion from your of-
           fice as.to the amount of'compensation that should
           be allowed the County Officers lieted above in Bunt
r--



          county. I will appreciate having this opinion
          before the first of January as there are so
          many special laws into which this county has
          dropped since the laat Federal Census that the
          Commissioners Court is at a loas to settle the
          salaries that should be paid and desires to
          settle this matter before the first of January.
                "Please send me copies of your.Opinlona No.
          O-1020  and O-899."
                 Article 3912e, Section 13, Vernon's Annotated Texas
      Civil Statutes, reads in part a8 follower
                 The  CommLaaionere~ Court In oountles hav-
           ing a population of twenty thourand (20,000) ln-
           habitants or more, and less than one hundred and
           .nlnstpThousand (190,OQO) inhabitante according
           to the last preceding Federal Cenaua, la hereby
           authorized and it shall be Its duty to fix the
           aularles of all the following named officera, to-
 .-        wltr sheriff, assessor end collector of taxes,
           oounty judge, .county attorney, including orfiainal
           district attorneys and oountp atCorneys who per-
           $qrplthe ,,dnti.aa,
                            ~..~.~A,~b.,.,a~~~ysi;,ldl~$~~',-','-
                                                               .:'
           alerk, oounty clerk, t?xqnarer, hide and a
           inspector. Eaah of said officera shall be paid
           In money an annual salary In twelve (12) equal
           Installments of not less than the total sum ear%-
          .ed aa oompensation by him in his official oapaoltg
           for the fiscal year 1935, and not more than the
           maximum amount allowed suoh officer under laws
           existing;on August 2l+,1935; . . . and provided
           that in counties having a po ulatlon of thlrty-
           seven thousand five hundred P 37,500) and less than
           sixty thousand (60,000) aooordlng to the last pre-
           ceding Federal Cenaua, and hating an aaeeaeed val-
           uation in exaess of Twenty EAllllon (420,000,000.00)
           Dollars, according to the last preceding approved
           tax roll of suoh county, the maximum amount dlOW-
           ed such officers as salaries, may be increased one
            (1s) per cent for each One Xilllon ($1,000,000.00)
           Dollars valuation or fractional part thereof, in
           excess.of said Twenty l:;llllon ($20,000,000.00) Dol-
           lars valuation over and above the maximum amount
    iionorableEugene Brady, Page 6


        allowed such officer under laws existlng,on
        JQuwst 24, 1935.”
              Article 3883, Vernon's Annotated Texas Civil Sta-
    tutes, reads In part as r0n0n.3:
             "Except as otherwise provided in this Ad,
        the annual fees that may be retained by precinct,
        county and district officers mentioned in this
        Article shall be as follows:
              ". . .

             “3.  In counties containing as many a8
        thirty-seven thousand five hundred and one
        (37 501) and not more than sixty thousand (60,-
        OOO! inhabitants, or containing a olty or ttnm
        of over twenty4lve thousand (25,000) luhabi-
        tants: County Judge,.Distrlct or Criminal DLs-
        trlct Attorney, Sherlrf, County Clerk, County
-       Attorney, District Clerk, Tax Collector, Tax
        Assessor, or the Assessor and Collector of
        Taxes, Thirty-tire Hundred (#3500.00) Dollars
        meh.; ~Ju~ti~e:.:&
                         4the,,Saaer~
                                   :md .~Oonrtab&i~d&gh~~ur~-
                                                            ~~..'
        Hundred ($1800.00) ~Dollarseaoh. (As ameuded
        Acts 1930, &..lst
                        Leg., 4th C.S., p. 30, oh. 20;
        Acts 1931, l&&d Leg., p. 822, oh. 3401 Aats
        1933, 43ra Leg., p. 731, oh. 220, 1 1.)"

              Article 3891, Vernon's Annotated Texas Civil Sta-
    tutes, reads in part as follows:
             nEach offlcer named In thls~Chapter shall
        first out of the current rees of his office pay
        or be paid the amount alloweU him under the pro-
        visions of Article 3883, together with the salar-
        ies of his assls,tantsand deputies, and author-
        ized expenses under Article 3899, and the amount
        necessary to cover aosts of premlurnon whatever
        surety bond may be required by law. If the cur-
        rent ieea of such office collected in any year
        be more than the amount needed to pay the amounts
        above specified, sane shall be d.eemedexcess fees,
        and shall be disposed of in the ma,nnerhereinafter
        provided.
              ”. . *
    Zonorable Eugene Brady, Page 7


             *In counties containing a.8meny aa thlr*-
        seven thousand, tire hundred and one (37 501)
        and not more than sixty thousand (~o,ooo~, or
        containing a city of over twenty-five thousand
        (25,oOO) Inhabitants, district and oounty offl-
        cers named herein shall retain one-third of
        such excess fees until such one-third, together
        with the amount specified in Article 3883,
        amounts to Forty-two Hundred and Fifty Dollars
         ($&250).   . .

             n(As amended Acts 1930, 4lst Leg., 4th C. S.,
        p. 30, oh. 20; Aote 1931, 42nd Leg., p. 870, oh..
        368; Aots 1933, 43rd Leg., P* 734, oh. 220, I 2;
        Acts 1935, 44th Leg., pa 752, oh. 327, t 1.)"
              The last two above quoted provisions of law w?re in
    rull force and effeot on Augtut 24th, 1935.
              We quote fmm the ease of Baoogdoohee Oounty vs.
C   Wnder (Beaumont Court of Olvll Appeals) 140 SW (2d) 972,
    (writ rerused), as follow8:
          ..,,3ll~.~.roll~,.,r*a~...ax*~>.rl~out&aput*r..;.i.,v.~
        Appelloe, Windor, was the duly eleoWd, q&i-
        fled and aotlng County Glemk of Raoogdoohes
        County during the years 1937 and 1938. lkoog-
        doches County was under the salary act law,
        Article 3912e, section 13, Vernon's Ann. Cl~ll
        Statutes. and Article 3S91. R.C.S.. Vernon?6




         earned es-oompensation o? his ofiloe the au&-of
         $3.286.16. On January 13, 1936, at a regular
        session of the Colmniesloners*court, an ardor
        was entered by said court fixing appellee*s sal-
        ary at $3,286.16 the amount earned as salary
        by the county judge of said oounty In 1935.
        Later In said month, January 31st, at a oailled
        .session.of said court, his salary was fixed at
        ,';3,350per year. On January 11, 1937, the
         cotissioners' court in regular session fixed
        his salary at $3,000, for that year, and on
-
        January 10, 1938, said court fixed his salary
:ionorable'Eugenearadg, PatIe8


     at $3,000 for said year. This was $286.16 lees
     than the minimum salary f'or1935, and 8350 less
     than the salary as fired by the order of January
     31, 1936. Appellee prayed udgment for $572.32,
     the difference between the il
                                 3,000 per pear for
    1937 and 1938, and the minimum or $3,286.16 as
     fixed by the order of January 13, 1936, or In
     the alternative for judgment for $700 If the
     order of January 31, 1936, passed at the called
     session be found proper. The judgment was for
     :$572.32.
         "We think the order fixing appellee's salary
    made at the regular term of January 13, 1936,
    was in accordance with the law, and that the
    amount then fixed as the annual salary of appellee,
    $3,286.16, under the facts and the'law was proper,
    and is controlllne.here. Article 79120. seotion




          Opinion No. O-2582 of this department dealt with a
situation relative to the salaries of the officers of Travis
County, Texas, where the population of that county had increas-
ed Pron 77,777 Inhabitants in 1930 to 110,686 inhabitants aa-
oording to the 1940 census. This opinion holds that the change
in'the population of Travis County, as shown by the Iredoral
Census of 1940, has no efPect.whatever upon the salaries of
the district and county offioers named in Article 3912e, Sec-
tion 13, V.A.C.S..and that the .maximuc:
                                       salary to be allowed
P

                :;onorabj.e
                          -::ui;;ene
                                 Brady, PaAe 9



                such officer was the meximum allowed the officer by laws exist-
                ing August 2L, 1935, to-wit, $&,750.00. We enclose herewith a
                copy or said opinion.
                          Opinion Ho. 0-2560 of this department holds that
                the commissioners court of Limestone County, Texas, should fix
                the salaries of the ofricials of said county named in Artiole
                3912e, Sec. 13, V.A.C.S., for the year 19&l; that the minimum
                salary of each suoh offioer oannot be lees thsn the total cum
                earned as compensation by him in his orrioial oapaolty for the
                fiscal year 1935 and that the maximum salary of each above men-
                tioned officers oould be the maximum amount allowed him under
                laws existing August 24, 1935, plus one per oent for each one
                million dollars valuation or fractional part thereof in excess
                of rlfteen million dollars. This opinion dealt with a situation
                viherethere was a deoreaae in population. We enclose herewith
                a copy or said opinion.
                          We agree with you that Article    3887a, Vernon’s Anne-
                tated Texas Civil Statutes, ia a 1ooe.lor epeoial law attempting
f-              to regulate the arrairs of a oouoty and therefore unoonstltutlon-
                al. The population braokets provided by said aot applied to only
                one county in the State of Texas aooordlng to the Federal Census
     .,   .,    of
               .,~
                ., 1930,,
                 appx-i  that
                            aacounty
                      es'.to,;   :~&&$then being Bode
                                     ."'e~y.“~txe        County, Texas, and nom
                                                    ~'stPtcr~.~;*f:.la~~~~,,~~~~~~'~.to
                the 1940 ~lrederalCensus, that county being Hunt County, Texas.
                As a basis for our holding we refer you to the authorities oited
                in Opinions Nos. O-899 and 1020 of this department, whioh are
                enclosed herewith.
                          Y!eagree with you that the section of Article 38fijd,
                Vernon's Annotated Texas Civil Statutes, cited by you fn your
                letter, is a local or apeoial law attempting to regulate the
                affairs of a county and therefore unconstitutional. The popu-
                lation brackets provided by said seotion of the act applied to
                only one county in the State of Texas according to the 1930
                Federal Census, that oountp then being Bowie County, Texas, and
                now applies to only one county in the State of Texas according
                to the 19&O Federal Census, that oounty being 1iun.t
                                                                   County, Texas.
                As a basis for our holding we refer you to Opinion Eo. O-1020
                of this department which specifically passed on the abovo sec-
                tion of the statute, and held same to be unconstitutional.
J



    IlonorableEugene Urady, Pa:::e
                                 10


              Vieagree with you that the seotion of Artiole 1645e-1,
    oited by you in your letter, is a local or epeoial law at-
    tempting to regulate the arfalrs of a oounty and therefore
    unconstitutional; The population braokete provided by said
    seotion of the act applied to only one county in the State of
    Texas aooording to the 1930 Federal Census, that oounty then
    being harrison County, Texas, and now applies to only one
    oouhty in the State of Texas aooordlng to the 19&O Federal
    Census, that oouritybeing Hunt County, Texas, As a basis for
    our holding we refer you to the authorities olted by Opinion
    has. O-899 and 1020 or this department.
                We agree with you that Artlole 16l,fid-1,Vernon’s
    Annotated   Civil  Statutes of Texas, Is a looal or speolal law
    end therefore unoonstitutlonal. The population braokets pro-
    vided by said Artlole appliad to Bowie, Collln, Harrison, Hunt,
    Lamar and Potter Counties, Texas, aocordlng to the 1930 Federal
    Census, and now applies to Oollin, Ellis, Htmt and Webb~Couu-
    ties, Texas, according to the 19&O Federal Ceneua, We think
    the caue of Besar County vs. Tynan, et al, 97 SW (2d) 567, is
    authority for this holding. May we point out that the popula-
    tion braoket used .ln said aot affords no rair basla for the
    olasslfioation based upon a real dlstlnotion between oounties
    In that braoket
    *h*,,,bmak&ei       oountles‘y&&b;.,fi&
                    and:=es.
                  ,,,,'Phe         with o  ulations,qboyqor $@JW
                                         0'j$y.21atf&g";ij;i'
                                                       :,eg&-f&ot
                                        8,f
    that the greater the ~populatlonof a oouuty the more onerous
    are the duties of the officers. The maxImum salary prescribed
    by the act is greater than that prescribed by the general Law8
    for counties with a greater population, and the aot disorimin-
    ate8 against those counties and the orrioers therein. We en-
    close herewith a copy of Opinion No. O-735 which disoueses the
    case of Bexar County vs. Tynan, et al, supra.
              Article 3941, Vernon’s Annotated Texas Civil Statutes,
    reads as follower
               *The oounty treasurer shall reoeive oommiseiOna
          on the moneys received and paid out by him, said
          oommlasione to be rixed by order of the commission-
          ers oourt as r 0ihff3t For reoeiving all moneys, other
          than sohool funds, ror the county, not exceeding two
          and one-half per cent, and not exceeding two and one-
          half per csnt f”orpaying out the same; provided, that
          he shall receive no commissions for receiving money
          from his predecessor nor for paying over money to his
          successor in 0rrice.w
Rormrablo Eugene Brady, Page 11


          Article 3942, Vernon's Amotated   Texas Civil Sta-
tutes, rsads a5 follow5:
          "The treasurer8   or the several counties shall
     bc treasurers of the   available public free who01
     fund and also of the   permanent oounty sohool timd
     for their reapeotive   counties. The treasurers of
     the ssv33?al counties  shall be allowed for reoelvlng
     and disburslne the sob001 lunde one-hall ol one
     per sent for reaelvlng, and one-half or one per
     cent for dlabursing, aaid oomnlsslons to be paid
     out of the avallable sshool fund of the oounty;
     provided, no sommlssions shall be paid for reoefv-
     lng the balanae tranualtted to him by his prsdeoessor,
     or for turning over the balanoe In his hands to his
     sueoessor: and provided,   that he shall receive no
     ooumisslons on money tnnererred.3
          Artiole 39&3, Vernon's Annotated Texas Civil Statutes,
reads in part as follows:
           "The oom~Isslona allcwsd to any County Trea-
     surer shall not exceed TWO Thousand Dollars (#2,OCW)
   .~
    :.
     -we,+,,      ** :,:)i:..
                        ,,.~~:~.“,;,“;,,,:.;‘i.;,.,
                                 P,,~::.::,~
                                    A...
                                      ;:,.,:,~,i
                                          ~,~:...i>:~
                                             ,.,.
                                              >L::.,c:<
                                                 ,.,.
                                                  ,,/.,,
                                                    ?,:
                                                      ;~

          You are respestfully advised that under the raots
stated it is the opinion oi this department:

          1.  It 1s the duty of the 001vmi5sioners'oourt or
Hunt County, Texas, to set the salaries of the sherlrr, Tax
Aase3sor and Colleator, County Clerk, District Clerk and County
Attorney at an annual salary of not Less thari$4.,250.00and
not .m_ore
         than F&,292.50.

          2. It ia the duty of the co5&ssioner31 court of Hunt
County, Texas, to set the annual salary of the County Zudge or
Hunt County, Texas, at not loss than $3,100.00 and not more than
c&,292.50 per annuv.
              Th3 County Auditor'5 salaq should be set at
!J2,500.00&m annum as provided by Artfcle 1.645,Vernon’s
Annctated Texas Civil Statutes.
              In your letter vou stat3 that the treasurer earned
~XKW than ~2,uOo.oo ror the year 1935. How3v3r, you have sinoe
Honorable Eugene Brady, Page 12


informed us that the oomtnlsslonera~ oourt by a valid order
limited the oommisslons of ths oounty trsasuror to a sum not
to exoeed $600.00 ror ths flsoal year 1935; that there wars
no drainage dlstriats in Bunt County  in 1935 and am none
there now, and that the oounty treasureP of Hunt County did
not c&loot or reoelve any drainage   dlstrlot oommalssionin
the risaal year 1935. You also state that the sum or $600.00
was the salary  actually earned and reaelved by the treasur-
er for the ilaoal year 1935. In visw of this additional in-
rormatlon you are respeotiullj advised that It is the opln-
ion of this department that It Is the duty of the oommlssion-
ers * court of Hunt County, Texas, to set the annual salary
of the oounty treasurer at not leee than $600.00 and not mom
than $2020.00 per annum.
          We wlsh to express our appreciation ior the splendid
brief submitted by you whloh has aided us in the preparation
OS this opinion.

                                       Very truly yoursr
                                  AT!TORNEP GF2iERAL OF TEXAS


                                  By   /s/   Wm. J. Fanulng
                                               Wm, J. Fuming
WJF;AW                                              Aaslstatlt
ENCLOSURES

APPXOVED DEC. 20, 1940
/(I/Grover Sellers
FIRST ASSISTANT
ATTO?NEY GENERAL

A?T'ROVZDOTIITO!JCOSk3~E
   By BVlSChairman
