Texas Attorney General Opinion: DM-51 Page: 3 of 5

Honorable Gene Green - Page 3

(Tex. App.-San Antonio 1986, no writ). Neither opinion addressed the issue of
equal protection under the fourteenth amendment to the United States
Constitution, but you have raised it, and we will address it briefly.
The United States Supreme Court has held that if a classification scheme,
other than one targeting a suspect class (such as one defined by race or ethnicity) or
affecting a fundamental right, has some reasonable basis, it does not offend the
equal protection clause merely because the classification "is not made with
mathematical nicety or because in practice it results in some inequality." Dandridge
v. Williams, 397 U.S. 471, 485 (1970). Furthermore, such a difference created by
statute "will not be set aside if any state of facts reasonably may be conceived to
justify it." Id. On the other hand, a classification scheme affecting a suspect class or
affecting a fundamental right will be subjected to a higher or strict level of scrutiny.
In such case, the classification will be held unconstitutional unless the state can
show that the scheme serves a compelling state interest that cannot be accomplished
by less drastic means. See Pollard v. Cockrell, 578 F.2d 1002, 1012 (5th Cir. 1978).
Relying on Dandridge, the Supreme Court of West Virginia has upheld salary
differentials within a class of county officers. In State exa re West Vruginia Magistrates
Ass'n v. Gainer, 332 S.E.2d 814 (W.Va. 1985), the West Virginia court upheld a
salary system for county magistrates based on population. The court noted that
there was a disparity in judicial functions between the magistrates of small and large
counties. As a result, the legislature's basis for the salary classification was not
"wholly irrelevant to the achievement of the State's objective" and, therefore, not
violative of equal protection. Id. at 816, 818. Subsequently, the same court
invalidated a scheme whereby the magistrates in five particular counties received
greater compensation than those in other counties of roughly equal population.
State exa re Longanacre v. Crabtree, 350 S.E.2d 760 (W.Va. 1986). In reaching this
conclusion, the court noted that a "heavier workload" was a relevant factor that
could provide a rational basis for a salary differential. Id. at 763.
Finally, in State ex rel Moody v. Gainer, 377 S.E.2d 648 (W.Va. 1988), the
court again upheld a population-based salary system. The magistrates of the smaller
counties had argued that they processed as many cases as their brethren in the
larger counties. The court found that this statement was not supported by the
evidence, which in fact showed that magistrates in the larger counties handled a case
load more than twice that of the magistrates of the smaller counties. It is significant
for our purposes that the court never questioned that a case load disparity could
properly form the basis for a salary differential. See also Weissman v. Evans, 438

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(DM-51)

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Texas. Attorney-General's Office. Texas Attorney General Opinion: DM-51, text, 1991; (texashistory.unt.edu/ark:/67531/metapth273860/m1/3/ocr/: accessed November 17, 2018), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; crediting UNT Libraries Government Documents Department.

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