Untitled Texas Attorney General Opinion ( 1942 )

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Honorable Fred Erieman
Criminal District Attorney
Gregg County
Longview, Texas
Dear Sir: Opinion No. O-4852
Re: Balarier of Precinct officer6
of Gregg County, Texas.
Your request for opinion has been received,and carefully
considered by this department. Jie quote from your request as fol-
lows :
"Your opinion is requested on some questions per-
taining to the officers' salary bill in Gregg County,
Texas.
"Gregg County, according to the 1930 census, had
a population of lea6 than 25,000, In 1940 the cen6u6
gave Gregg County a population of 58,027. Prior to the
1940 census the Commissioner6 Court determined that a$1
county and precinct officers in said county should be
paid salaries. Salaries for 6Om of the precinct offi-
cers were a6 high a6 $3600 per amum.
11
PSTION NO. 1:
"Doe6 Art. 3891, V. A. C. S,, 86 amended by
the acts of the 44th Legislature in 1935, Chapter 327,
effective on day 1.8,1935, repeal Sec. 6a, Art. 3883,
V. A. C. S., a@ amended by the 44th Legislature, 1935,
in Chapter 197, which act was effective Msy 10, 19351
"QUESTION NO. 2:
"Should the Commissionew Court of Gregg
County determine to place precinct officer6 on the
salary basis, what is the maximum amount that can be
paid such precinct officers?
"QUESTION NO. 3:
"Should the Commissioner6 Court of Gregg
County determine that precinct officers in said county
Honorable Fred Erisman, Page 2 (0-4852)
should be returned to the fee basis for their compensa-
tion, what IS the maximum amount of fee6 thatcan be re-
tained by such precinct officer6 in said county?
"Sec. 17, Art. 3912e, V. A. C. S. provides that in
all counties in this state the precinct officer6 shall
continue to be compensated for their services on a fee
basis until the Commissioners Court shall have deter-
mined otherwise. In sub-section (b) of Sec. 17 the fol-
lowing language appears:
"'(b) In counties where it shall have been
determined that precinct officer6 shall be compensated
on an annual salary basis it shall be the duty of the
Commissioners' Court of such county to fix the salary
allowed to such officers. Each of said officers shall
be paid in money sn annual salary in twelve (12) equal
installments of not less than the total sum earned as
compensation earned by him in his official capacity for
the fiscal year 1935 and not more than the maximum al-
lowed such officer under laws exieting August 24, 1935.'
"The Court of Civil Appeals at Beaumont in Nacogdoches
County vs Jenkins, 140 S.W. (2) 901, held that it was mandatory
that the salary be fixed at not less than the minimum, being the
official earnings inl935, and not more than the maximum amount
allowed such officer under the laws existing on August 24, 1935.
"When Section 6a, Art. 3883, went into effect on May
10, 1935, it fixed the maximum salaries for Justices of the
Peace and Constables in counties having a population of le6S
than 30,000 and a tax valuation of more than $90,000,000 at
$3600 per year. Gregg County had a tax valuation in excess
of $90,000,000 for the year 1935. However, at the same ses-
sion of the Legislature (Acts 1935, 44th Legislature, Page
752, Chapter 327, Paragraph 1) which act w86 effective eight
days later than Sec. 6a, Art. 3883, supra, to-wit, May 18,
1935, the maximum amounts that could be retained by precinct
officers in counties having less than 25,000 population was
fixed at $1400 per annum. The maximum amount to be retained
by precinct officers in counties of 37,501 to 60,000, in
whl,chbracket Gregg County is now placed, the maximum fixed
for said officers amounts to $2200.
"Thereafter, in the same act is contained the following
l.snguage:
"'All current fees earned and collected by offi-
cers named in Art. 3883 during any fiscal year in excess of
the maximum and excess allowed by this act, and for their
Honorable Fred Erisman, Page 3 (0-4852)
services and for the services of their deputies and
assistants and authorized expenses, together with all
delinquent fees collected and not used as provided in
Art. 3892, or used to pay salaries of deputies or as-
sistants when current fee6 are insufficient, shall be
paid into the County Treasury in the county where the
excess accrued.'
"The second paragraph following provide6:
"'The compensations, limitations and maxi-
mums herein fixed in this act for officer6 ahall in-
clude and apply to all officers mentioned herein &
each and every county of this state, and it is hereby
declared to be the intention of the Legislature that
the provisions of this act shall apply to each of said.
officera, and any special or general law inconeistent
with the provisions hereof 16 hereby expresely repealed
so far as the 6ame may be inconsistent with this act.'
"It would appear that it was the intention of the
Legislature that when any county grew out of one popu-
lation bracket into another, that upon reaching the new
bracket, its salaries would be determined by the new
bracket into which it had grown. If this be true, then
the salaries to be set for the year 1943 for precinct
officers in Gregg County would be set in the population
bracket of not less than 37,501 and not more than
60,000.
"If Art. 3891 repeals Sec. 6a, Art. 3883, then it
would appear that the maximum salaries that could be paid
to precinct officers in Gregg County would be $2200 per
annum. If Sec. 6a was not repealed, it was in effect on
August 24, 1935. If it was repealed by Art. 3891, then
Art. 3891 was the existing law a6 effecting Gregg County
on August 24, 1935.
"There has been no decision construing the question
whether or not Sec. 6a of Art, 3883 has been repealed;
however, the language of Art. 3891 expressly repeals any
law inconsistent with said article which would constitute
a repeal by implication. (See Tex. Jur., ,Vol. 39, page
137.) The two acts are in parixteria and are in con-
flict with each other. Eee 39 Tex. Jur., page 142.)
Art. 3891 was passed at a later date which would make it
the controlling statute. (See 39 Tex.
- J,T., page 139.)
"Your opinion on the above questions is respectfully
requested."
Honorable Fred Erislpan,Page 4 (o-4852)
We quote from 39 Texas Jurisprudence, p. 150, as follows:
11
. . . a special act is, of course, repealed by
subsequent legislation that contains an express re-
pealing clause or that otherwise manifests the inten-
tion of the Legislature to repeal it. . ,"
We have carefully considered the acts and articles re-
ferred to in your letter in connection with the repealing clause
quoted in your letter and have reached the opinion that your first
question should be answered in the affirmative, and it is so an-
swered. Having held herein that Section 6a of Article 3883,
V. A. C. S., as amended by the 44th Legislature in 1935, was re-
pealed by Article 3891, V. A. C. S., as amended by the 44th Leg-
islature in 1935, it is not necessary to express an opinion herein
as to the constitutionality of Section 6a of said Article 3883,
as amended in 1935, and we express no opinion as to the constitu-
tionality of said article. ..
'<
Opinion No. 0-2560 of this Department holds, &c$ other
things, that the salaries for the officers named in Section'lj,
Article 3912e, in counties having a population of 20,000 inhabitants
or more and Less thanl90,OOO inhabitants, according to the last
Federal census, should be fixed for the year 1941, as provided
by law existing August 24th, 1935, regardless of the population
of such counties as shown by the 1940 Federal census. Under the
facts relative to this opinion Limestone County, Texas, had a popu-
lation of 39,497 inhabitants according to the 1930 Federal census
and the preliminary census report made by the Federal Census Bureau
of the County's population in 1940 was 33,380 inhabitants. The
opinion further holds that the minimum salary of any officer named
in Section 13 of Article 3912e, supra, could not be less than the
total sum earned as compensation by the incumbent of the office
in his official capacity for the fiscal year 1935 and that the
maximum salary could not be more than the maximum amount allowed
such officer under laws existing on August 24th, 1935. We enclose
herewith a copy of Opinion No. 0-2560.
Opinion No. o-2582 of this department holds, among other
things, that the change in the population of Travis County, Texas,
as shown by the Federal census of 1940, had no effect upon the
salaries of the district and county and precinct officers of said
county, and that the minimum salary of such an officer could not
be less than the.total sum earned as compensation by the incumbent
of the office in his official capacity for the fiscal year 1935
and that the maximum salary could not be more than the maximum
amount allowed such incumbent under laws existing on August 24th,
1935, and since the 1930 Federal census was then in effect such
census was controlling. We enclose herewith a copy of opinion
NO. o-2582.
._ ---
Honorable Fred Erisman, Page 5 (0-4852)
On August 24th, 1935, Article 3891, V. A. C. S., a6 amended
by the 44th Legislature, 1935 (II.B. 595), was effective and applied
to Gregg County. Section 1 of Article 3883, V. A. C. S., as amended
by the 43rd Legislature, 1933, wa6 also effective at said time and
applied to Gregg County, Texas. Under Article 3883, Section 1,
supra, the "first maximum" Justices of the Peace and Constables
could retain was $1200.00. Article 3891, V. A. C. S., a6 amended,
supra, authorized Justices of the Peace and Constables in Counties
having a population of less than 25,000 inhabitant6 to retain one-
third of excess fees above $1200.00 (after legal expenses had been
paid) until such one-third plus the amount allowed under Article
3883, ($1200 in this instance) amounted to $1400.00.
We answer your second question as follows: $1400.00
is such maximum.
In answer to your third question it is our opinion that
if the precinct officers are placed on the fee system the 1940
Federal census will be applicable to them. The first maXimUm for
the Justices of the Peace and Constables of Gregg County, Texas,
operating on the fee system under Section 3 of Article 3883,
V. A. C. S., applicable to counties having a population of not
less than 37,501 and not more than 60,000 inhabitants, will be
$1800.00per annum. The second inaximumof such precinct officers
of Gregg County, under the applicable portion of Article 3891,
V. A. C. S., will be $2200.00.
Very truly yours
APPROVED OCT 13, 1942 ATTORNEY GENERAL OF TEXAS
ISI Gerald C. Mann
ATTORNE*L'
GENERAL OF TEXAS By /s/ Wm. J. Fanning
Wm. J. Fanning
AESiStant
wJF:mp:lm
Encl..
APPROVED
OPINION
COMMITTEE
By /s/ BWB
CKAlRMAN