            E

                    OF   TEXAS




Honorable W. S. (Bill) Reatly
Chairman, Committee on Appropriations
House of Representatives
Austin, Texas
                          Opinion NO. c-58
                          Re:    Constitutionality of a Bill
                                 setting the salaries of
                                 district attorneys and county
                                 attorneys performing the
                                 duties of district attorneys,
                                 on a graduated scale, accord-
                                 ing to the population of the
Dear Mr. Heatly:                 various districts.
      Your request for an opinion reads as follows:
           "House Bill No. 61 (Quilllam and
      Schlller), referred~to the Committee on
      Appropriations would, among other things,
      increase the State salaries of district at-
      torneys and place county attorneys perform-
      ing the duties of district attorney on a
      salary basis.
           "Would an Act setting the salaries of
      such officers (district attorneys and county
      attorneys performing the duties of district
      attorney) on a graduated scale according to
      the population of the varlous districts (i.e.,
      a 'bracket bill') be in violation of the
      Constitution?"
            Section 1 of House Bill 61, referred to in your
request, fixes the salaries to be paid the district attorney
in all judicial districts of the State at the same amount.
Section 3 of House Bill 61, referred to In your request, fixes
the minimum compensation to each county attorney performing
the duties of district attorney at the same amount.




                                 -283-
Hon. W. S. (Bill) Heatly, page 2 (c-58)


       You have asked whether an Act setting the salaries
of such officers on a graduated basis, based on population,
would be constitutional. Section 56 of Article III of the
Constitution of Telras,prohibiting local and special laws
regulating the affairs of counties, has been consistently
construed by the courts of this State as prohibiting the
Legislature from enacting laws ~providingfor compensation
of county officials on a classification that Is not based
upon a real distinction, but constitutes an arbltrary,devlce
to give what is in substance a local or special law the f,orm
of general law. However, the Legislature Is authorized to
resort to population brackets for the purpose of fixing com-
pensation where there Is a substantial reason and fair basis
forthe classification. Clark v. Finley, 93 Tex. 177, 54
S.W. 343 (1899); Bexar County v. Tynan, 128 Tex. 223, 97 S.W.
26 467 (1936); Miller v. El Paso County, 136 Tex. 370, 150
S.W;2d~lOGQ~(lg&l).
       Thus, population affords a ground for classification
on the theory -that the greater the population, the greater the
need for a higher compensation. See authorities, supra.
      : You are therefore advised that an Act setting the sala-
ries of district attorneys and county attorneys performing the
duties of district attorney, on a graduated scale, according
to the population ,ofthe various districts would be constltu-
tlonal, provided there Is a substantial and fair basis for the
classification.
                          SUMMARY
        The Legislature is authorized to resort to
        population as a basis for fixing compensation
        of county officers on the theory that the
        greater the population, the greater the need
        for higher compensation., Thus, an Act setting
        the salaries of district attorneys and county
        attorneys performing the duties of district at-
        torney, on a graduated scale, according to popu-
        lation of the various districts, would be constl-
        tutional, provided there is a substantial and
        fair basis'for the classification.

                             Yours very truly,
                            WAGGONER CARR
                            Attorney General

                                        i2Q-e
                             BY ohn Reeves
JR:ms                  ,,:,.' P Assistant
                                -284-
Hon. W. S. (Bill) Heatly, page 3 (c-58)


APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Pat Bailey
J. S. Bracewell
Edward Moffett
W. 0. Shultz
APPROVED FOR THE ATTORNEY GENERAL
By: Albert Jones




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