Case Information

*1 R-413 Oh?ICE OF ‘mE .&TORmY (@NEW AUS~~.TEXAS~ ! PRICE DANIEL June 20, 1947 ATTORNEY GENERAL ,i

Hon. Perry L. Jones, : opinion WO.~V-270 County Attorney,

Travis'County,. Re: Constitutionality of Austin, Texas Ho Be 100, A&s 50th

Legislature, 1947, relative to compensa- treas- tion of county Dear Sir:

urersD We reier..to your ~letter'of April 24, 1947, to this Departmentwhich is as follows: 'Z _

"The current Legislature has passed Rouse R.l.ll:INo.:lOO permitting 'the' Commls-' sioners!~,Sourt in *counties of Texas .hav-~ ing a population of more than ninety thou- sand (90,006). and less than one 'hundred ;and/twelve thousand (112,000), accordi@

to the last preceding Federal Census;* to pay the County Treasurer up to thirty-six hundred ($3600.00) Dollars per year.

"In smmuch as this is one-.or'the so- called ~Braoket.Bllls~, I amwriting; at the request ot the-~County Auditor; to &et - your opinlonas.to whether or not.thls Bill is ~constitutional~partlcularly iiL're&3kd fb the bra&at matter. I sm~enoloslng a aopy- of House Bill No. lOOi" l%mpertinent.part the Bill is ds'ic%l- .

ImeL.:.. . : ? x7:

Weotion 1. ~Sectio+ 13, Subseotion . (a), Chapter 465, General and Speaial Laws, Party-fourth Legislature, Seoond Called ' Session, as ~,amended by House Blll~No.~l6l,- Regular Session, Eorty-sixth Legislature; as amended by Chapter 61, Acts, Forfy-sev- ! enth Legislature, is hereby amended to here- after read as follows:

Hon. Perry L. Jones - Page 2

"*(a) The Commissioners Court of the respective oounties of Texas having a po ulation of more than ninety thousand (90 too, and less than one hundred and twelve thousand (112,000), according to the last preceding Federal Census, are hereby authorized to fix the salary of the County Tfeasurer of the particular county at a sum not leas than Six Eundred Dollars ($600) per year, nor more then Thirty-six Hundred Dollars ($3600) per year.'*

The provisions of Artid III of the Consti- tution applicable are as follows:

"Sec. 56. The Legislature ahall mot, except as otherwise provided in this constitution, pasa any local or spea- ial law, authorizing: . c *

Tteglllitillg the e2fai.m of a4ullties, aiths, towns, yards or sahool diatriets;

Section X5 of Arttiele 3912s 5s ln.part as t0llOW*:

'sec. 1s. The Comissionersf Court in countties having a population 61 twenty thousand (20,000) imhebi- tants or more, end leas than'&e.&an- drsd'and ninety thousend (1SO;OOD) in- habitants aocording to the lase pre- ceding Federal Censns, is hereby auth- orized and it shall be its duty to fix the salaries of all the following named officers, to-wit: sheriff, as- eessor~ and oolleofor of taxes, county @dge,.county attorney, including cplm- inal distriot attorneys and oounty at- torneys who perform the duties of dls- trict attorneys, district clerk, coun- ty clerk, treasurer* hide and animal &nspector. Ea h f said offioera shall be paid lnmonzy L annual salary in twelve (3.2) equal instailments of not less than the total sum earned as com- pensation by him in his ofiioial oap- *3 Hon. Perry L, Jones - Page 3

acity for the fiscal year 1935, and not more than the maximum amount allowed such officer under laws existing on Aug- ust 24, 1935; o o o"

It will be noted that the ~bill in question is made applicable to those counties having a popula- tion of more than 90,000 and less than 112,000, Upon checking the population census-or each county of the. State, we find that at the present time there are four counties in the State having a population of more than' 9OdOOO and less than 112,.000, to-wit: Travis, 111,053; Hidalgo, 106,059; McLennan, 101,898; and Nueoes, 92,- 661, The population census further~reveala .that El Paso County has a population of 131 597, The general provisions of ally the statutes sett&gthe salaries of county treasurers in.countiea dth a p'opuletion of not less than 20,000 and not more than 190',000 inhab- itants fixes a ~maximum salary $2;006,0O:.perannum (Art, 39128, Sec. 13, and~~ArtlCle 394S, V.&S.); to-' gether with the 2% increatie'as'allowed by S, B; 12S~~~ Acts 49th Legislature; Sec. 13 of Article 39l2e, supra, Inasmuch as there is no other law governing the treas- urer's salary which is applicable to El Paso County, said salary is governed by'the provisions of S8otion 13 of Article 3912e, slipra, as amended in 1945;'and the maximum salary which the treasurer of El Paso Coun- ty may reoeive is~$2,500,00, eventhough itspopula- tion is far in,exqass or that or .any county coming with- in the brac&et.oT & B,.lOO. L ~

The Bill further providesfor a minUsam salary of not less than $600 per annum, while the Gen- 8ralLaws (Art* 3912e, Sec. 13) sets ,minimum salaries of the county treasurers in ~oountlea w1th.a population of not lass than 20,000 nor more than 190,000 inhabib' tanta ht not less than the total sum earned aa'compen- sation by them ih their ofricial capacities for the riscal year 1935, Therefore, the Commissioners* ~Courts of the particular counties coming within the bracket of' the Pill can set the salaries of the county treas- urer In their respective counties at a much leas aal- ary than provided for by Article 39128, Set, 13, even I though the ceunty treasurer is serving in a county whose population is~far in-excess of those counties wherein the minimum salary of the county treasurer is

Hon. Perry L. Jones - Page 4

not 18s~ than that earned in 1935, and much greater than $600 per annul+

The question for decision here is whether the classification is arbitrary and'unreasonable or whether the population of the counties ,8mbraC8d with- in the bill bears a reasonable or logical relation- ship to the question of the amount of work required of the county treasurer and the need for an increase in the annual .salary of Said officer. In other words, Vhether'the Legislature may legally classify these fourcounties and authorize the Commissioners1 Courts thereof to pay their respective county treasurers an annual salary of $3690.00 when El Paso County (a much larger county) is only authorized to pay its treasur- er an annual salary not to exceed $2500.00 per annum.

: In regard to local and special laws, the Texas Supreme Court In B8Xar County v. Tyimn, 97 S.W. 2d 467, held void an act of the Legislature which fixed the compensation of.the county of%icers in COW+ ties of not less than 290,000 nor more than SlO,QOO at an amount less than offiaers in some counties 0r S5IEll.l8= ~OpUf~tkOll Could r808iV8. olie qUOt8 ‘from the opinion as follows:

" a.. . the Legislature may Classi- fy counties upon a basis or population ror the purpose or rixingcompen~tion o&county and precinct officers,

ng SO the ClaSSiflCatiOn.mUSt. %%%ed UPOn a real distinCtiOn, and must not be‘ arbitrary or a d8ViC8 to give what is in '.subatance a local or special law the form

0f.a general law. . .

"*The rule is that a clasai~lcation cannot be adopted arbitrarily upon a ground which has no foundation In differ- ence of .situation or ~circumstanc8s Of the municipalities placed in the different classes. There must be some reasonable relation between the Situation Of mUIliCi- palitias reclassified and the purposes and object8 to be attained. ThBr8 mUBt be SOm8thillg.. . which in some reasonable degree accounts for the division into classes.'

Hon. Perry L, Jones Page 5

*In the ^[0488] of Clark v, Mtiey, 93 Tex, 171, 54 5. W. 343,this Court recog- nized that substantial differenoes in popu- lations of counties could be-made a basis legislation fixing cornpen-Gtion 0r offi- oera, on the theory, as the-Court clearly that the work devolvi upon an recognieed, officer was in some degree proport "f onats to the population of the county. This has ire- quently been reoognixed by courts as creat- ing a sufficient distinotion to justify a larger compensation for county ofricers In counties having a large population as co& pared with compensation to llks officers in counties having a small population, Con- versely, we think It true that if the-is- lature ignoresthe obvious fact that the work of county orficera is proportionate to population and classifies oounties in such a way that the oompensatlon of Officers of a county having a large population is fixed far below the compensation allowed like of-~ ficers in small counties. such action a- mounts to fixing a classification which is

bit 9 d hi h has no true relevance g th%&ewofcthe ls~lslation.n (Empha- sis ours)

It is readily apparent that H. B. No. 100 authorizes payment of salaries to county treasur4ra'l.n fOUr COUnti greatly in exc8sa Of the.salary allowed the county treasurer of El Paso county, a county with a much larger population, under the general law in which all of such counties are embraced, Section 13 of Arti- cle 39128, suprae

If this is not a local or special law, what reason can ^[4] assigned for holding.lt to be a generals law? Can 1 b8 said that the classification is reason- e

able and not arbitrary or that the olassifioatlon is real when it allows the County treasurers in COUnti Of a much-smaller population to receive a muah greater Cal- ary than the county tre&surers in all the other counties having a population of at least 112,000 and hot more than 190,000 (including El Paso County) and when also at the same time it allows the Commissioners* Courts of oounti4s having a much greater population to set the salaries of' the oounty treasurers in those counties coming within Its brackets as low as $600 per annum, a much less salary than may be allowedthe county treasurers under Section SUpra, even though the county might 13 Of httC18 39128, *6 Eon. Perry L. Jones - Page 6

not have a population of-n~ore than 20,000 inhabitants? We think not.

Therefore, in view of the foregoing, you are respeotfullq advised that it is the opinion of this Department..~that H. B. No. 100 is in contravention of Section 56 of drticle III of the Constitution and is a loo@1 or special la* and, therefore, is invalid and un- codatitutfonal in this respect.

House Bill &To. 100, 50th Legislature, providing for the fixing of salaries of county trepreurers in counties having a pop- ulatfon.'betueen 90,000 and 112,000 ts nor oonstitutlo'm~, the olassIrieatlon being un-' reasonable~ and hot real.- Bexar Co. f, Tynan, 97 5. 7, Ed 467.

Very truly yours, By A&@ d ce Allen BA*ArdjSl:WB Assistant

ATTORNEY GENEFlAL