Untitled Texas Attorney General Opinion ( 1951 )

October 18, 195’1
Hon. John R. Creighton Opinion No. V-1325
County Attorney
Palo Pinto county Re: Applicability of S.B. 362,
Palo Pinto, Texas Acts 52nd Leg., R~.S. 1951,
ch. 264, p. 424. to Palo
Dear Sir: Pinto County.
You have requested an opinion as to whether the Com-
missionersD Court of Palo Pinto County may elect to compensate
constables and deputies under the provisions of Senate Bill 362,
Acts 52nd Leg., R.S. 1951, ch. 264, p. 424.
Section 1 of Senate Bill 362 authorizes county commis-
sioners’ courts to supply or pay for transportation of constables
and deputy constables under one of several optional plans out-
lined in the statute. Subdivision (e) of Section 1 reads:
“This Act shall not apply to counties having a
population of less than twenty thousand (20,000)
people :”
Your letter requesting an opinion contains the following
statement:
“According to the preliminary report of the 1950
census, Palo Pinto County has a population of slightly
over 18,000 people. Estimates of reliable civic organ-
izations, Chambers of Commerce, etc., place the pres-
ent population at well over 20,000 people.“.
You point out in your letter that Senate Bill 362 does not state the
method by which population is to be determined, such as “accord-
ing to the last Federal census.”
Chapter 1 of Title 61 (Article,s 3882 et seq,), R.C~.S. 1925,
provides for the compensation and ‘expenses of district. county,
and precinct officers. Article 3889, which is a’part of this chap-
ter, reads:
“The preceding Federal census shall govern as
to population in all cases under any provision of this
chapter.”
Hon. John R. Creighton. page 2 (V-1325)
While the Legislature has not expressly made Senate Bill
362 a part of Chapter 1 of Title 61, this statute deals with compen-
sation and expenses of precinct officers, and we think it was the in-
tention of the Legislature that it be construed in conjunction with
the articles of this chapter.
We note that Senate Bill 362 has been unofficially codified
as part of Title 120 of the Revised Civil Statutes, r.elating to Sheriffs
and Constables. However, an unofficial codification has no effect on
the operation of an act of the Legislature and may be disregar~ded.
,Att’y Gen. Letter Op., July 15. 1949, addressed to Hon. Jesse G. Fos-
ter.
In former years the Legislature used various standards for
determining population classifications for compensating county and
precinct officers. Sometimes the vote in the last preceding pr~esi-
dential or other election was used. See, for example, Acts 25th Leg.,
S.S. 1897, ch. 5. p. 5, sets. 7, 10. and 17. However, these standards,
which were dependent on many contingent factors and were therefore
not satisfactory, gave way to the, use of the preceding Federal cen-
sus as the customary standard., In 1913, the Legislature amended
Article 3887. R.C.S. 1911, so as to provide that “the last United States
Census shall govern as to population in all cases” in determining the
compensation of these officers. Since that time, this standard has
prevailed almost exclusively. Occasionally the Legislature has va-
ried this pattern in exceptional cases. but in those: instance,s it has
specified the standard or method by which population is to be ascer-
tained. See, for example, Article 326h. V.C.S.
Senate Bill 362 does not grant authority to any person or
body to determine the population of a county, nor does it set out the
sources from which information as to population is to be obtained.
In view of legislative practice. considered along with~Article 3889,
supra, we think the failur,e of the Legislature to state the method by
EliIEh population is to be determined is more indicative oft an inten-
tion that the preceding Federal census is to control~than that some
other method is to be used. In Brooke v. Dulaney, 100 Tex. 86, 93
S. N. 997 (1906). the Supreme Court of Texas held that since the Con-
stitution had provided that population for certain purposes should be
determined by the preceding Federal census, it contemplated that
population for a similar purpose under another section of the Con-
stitution should be determined by the same method, although it did
not expressly so state. The same reasoning is appropriate here.
We are of the opinion; therefore, that the preceding Federal census
is to be used in determining the applicability of the provisions of
Senate Bill 362.
Hon. John R. Creighton, page 3 (V-1325)
According to the final report of the 1950 Federal census,
the population of ~Palo Pinto County is 17,154. This census is the
correct measure of population to determine the applicability of
Senate Bill 362 to your county. Att’y Gen. Op. V-1175 (1951). Since
Palo Pinto County has a population of less than twenty thousand
people, Senate Bill 362 does not apply to it.
SUMMARY
The Commissioners’ Court of Palo Pinto County
may not elect to compensate constables and their
deputies under Senate Bill 362, Acts 52nd Leg;. R.S.
1951. ch. 2, p. 424, since this county has a popula-
tion of less than twenty thousand people according to
the final report of the 1950 Federal census.
Yours very truly,
APPROVED: PRICE DANIEL
Attorney General
J. C. Davis, Jr.
Countv Affairs Division
Jesse P. L&on, Jr. BY
Reviewing Assistant Ro
Assistant
Everett Hutchinson
Executive Assistant
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