Untitled Texas Attorney General Opinion ( 1962 )

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flict with the provisions-ofthis Act are repealed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.