*1 OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
GENALD C. MANN ATTORNEY GENERAL
Euperseded by N.A. 29.4
Hon. Jack Wiech County Attorney Cameron County Brownsville, Texas
Dear Sir:
Opinion No. 0-2811
Re: The effect of the 1940 Federal Census in determining the salary and traveling expenses that may be allowed the county commissioners of Cameron County.
Your recent request for an opinion of this department upon the question as to herein stated has been received.
We quote from your letter of follows:
"The question has been raised by the county auditor of the county as to the effect of the 1940 Federal Census in determining the salary and traveling expenses that may be allowed the County Commissioners of Cameron County for the year 1941.
"The total assessed valuations of properties in Cameron County for tax purposes are $31,500,000 and the population of the county according to the unofficial report of the 1940 Federal Census is 81,227 inhabitants. According to the 1930 Federal Census the population was 79,540.
Article 2350, Revised Civil Statutes of Texas, provides among other things, that the salary to be paid each county commissioner in counties having assessed valuations of from 78,000,000 shall not exceed $2400 per annum.
"Note 1937, 45th Leg., p. 392, ch. 194, provides in part that in any county in this
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Hon. Jask wlech, page 2
State having a population of not less than 77,500, and not zore than 77,500, acoording to the last preceding federal consue, the Comissioners ocurt is hereby autiortzed to allow eioh oomissioner the sum of per month for tr.veling ex= yenses and depreciation on his autaobile while on official businoss." "Artiolo 2350(2), reads as foljows: "The Comissioners Court at ita firot regular meeting e:oh year shall, by order duly zade and entered upon the minutes of said Court, fix the salaries of the County Comissioners for such year, within the limits as provided for in tis Ast.? "Under the provisions of the above statutes, each County Comissioner of Cameron County is now being allowed a salary of per annum and the further sum of per month for traveling expenses and depreciation on is automobile while on official business. "A great many Asta have been passed by the Logislature providing traveling expenses for County Comissioners in oounties of various populations and assessed valuations, but I fail to find such statute applicable to a oounty having a population of 81,227 inhabitants and assessed valuation in the amount of . "Presuming that the report of the 1940 Federal Census is officially made before January 1, 1941, and that such report will s:ow Cameron County to have a population of 81,227 inhabitants, it appears that the salaries of the County Com missioners of this county will be governed by the Statutes under which their salaries are now being fixed and allowed, but the pament of any traveling expenses to such Comissioners will then be without autiority of law. "Tour opinion on the queation oubzitted herein will be greatly appreciated."
*3 Hon. Jaak Wieoh, page 3
Article 2350, Vernon's Annotated Civil Statutes, reads in part as follows:
"In counties having the following assessed valuntions, respectively, as shown by the total assessed valuations of all properties oordified by the county assessor and approved by the Commissioners Court, for county purposes, for the previous year, from time to time, the County Comissioners of such counties shall each receive annual salaries not to exceed the amounts herein specified, said salaries to be paid in equal monthly installments, at least one-half, and not exceeding three-fourths, out of the Road and Bridge Fund and the remainder out of the General Fund of the county; said assessed valuations and salaries applicable thereto being as follows:
"Assessed valuations Salaries to be paid each Commissioner.
75,000,000 not to exceed . . . . . . . . . . . $2400.00
Article 2350(2), Vernon's Annotated Civil Statutes, reads as follows:
"The Comissioners Court at its first regular meeting each year shall, by order duly made and entered upon the Minutes of same Court, fix the salaries of the County Comissioners for such year, within the limits as provided for in this act."
House Bill No. 848, Chapter 194, Page 392, Acts of the Forty-fifth Legislature, 1937, Regular Session, reads in part as follows:
"30010N 1. In any county in this state having a population of not less than seventeen thousand, six hundred (17,000) and not more than seventeen thousand, seven hundred (17,700) and in any county in this state having a popu-
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Hon. Jack wioch, page 4 lation of not less than seventy-seven thousand and not more than seventy-seven thousand, one hundred and in any county in this state having a population of not less than seventy-seven thousand, five hundred and not more than soventyseven thousand, six hundred , according to the last preceding federal census, the Commissioners Court is hereby authorized to allow each Commissioner the sum of fifty Dollars ( ) per month for traveling expenses and depreciation on his automobile while on official business. Each such Commissioner shall pay all expenses in the operation of such automobile and keep same in repair free of any other charge to the county.
* * * * *
Our opinion No. 0-2011, wherein House Bill No. 730, acts of the forty-fourth Legislature, Regular Session, 1935, and section la of article 2700d-12, Vernon's Annotated Civil Statutes, House Bill No. 451, Acts of the forty-fifth Legislature, Regular Session, 1937, which were substantially similar to House Bill No. 848, Acts of the forty-fifth Legislature, 1937, which we are considering in this opinion, was held to be unconstitutional. What was there said with reference to the constitutionality of House Bill no. 730, Acts of the forty-fourth Legislature, Regular Session, 1935, and section la of Article 2700d-12, Varnon's Annotated Civil Statutes, House Bill No. 451, Acts of the forty-fifth Legislature, Regular Session, 1937, is equally applicable to House Bill No. 848, Acts of the forty-fifth Legislature, supra. A copy of our opinion No. 0-2011 is attached hereto.
Therefore, you are respectfully advised that it is the opinion of this departant that the provisions of House Bill 848, Acts of the forty-fifth Legislature, 1937, as it applies to Cameron County, is a special law regulating the affairs of Cameron County (altgolt v. Outzeit, et al., 201 S. N. 400) and therefore unconstitutional and void.
In view of the foregoing statutes you are respectfully advised that it is our further opinion that
*5 Hon. Jack Wiech, page 8 the salaries of the county Commissionsers of Cameron County for the year 1941, based upon the assessed valuation as shown in your inquiry, may not be fixed by said court at a greater sum than $32,400.00 each, regardless of the population as shown by the 1940 census, and may not legally allow any of the Commissionsers the 550.00 per month provided for under the provisions of the 1937 Act referred to above.
In connection with the above, we invite your attention to the provisions found in both articles 1928 and 2340, Vernon's Annotated Civil Statutes, which must be Incorporated in the official bond of a county judge or commissioner and is as follows: ". . . will not vote or give his consent to pay out county funds except for lawful purposes."
Trusting that the foregoing fully answers your inquiry, we are
APPROVED OCT 16, 1940
Yours very truly ATTORNEY GENERAL OF TEXAS AudellFiecom Ardell Williams Assistant
AW:ob Encl. (opinion 0-2011)