Untitled Texas Attorney General Opinion

i%TlXDRNEY ENERAL Honorable John Lawhon Opinion No. M-932 District and County Attorney County Courthouse Re: Construction of H.B. 1754, Denton, Texas 76201 Acts 62nd Leg., R.S. 1971, Ch. 583, p. 1927, relating to the allowances for travel- ing expenses of members of the commissioners court in Dear Mr. Lawhon: certain counties. You have requested the opinion of this office concerning the effective date of House Bill 1754, Acts 62nd Legislature, R.S. 1971, Ch. 583, page 1927. You have further asked our opinion as to whether House Bill 1754 allows the commissioners court to set "travel expenses and depreciation" of one or more of the commis- sioners at a different sum,from that set for the county judge or from that set for another commissioner. For the reasons which-follow, we hold that House Bill 1754 is unconstitutional and therefore never became a valid and effective law. It Is therefore unnecessary to answer your ques- tions. The relevant portions of House Bill 1754 read as follows: 'Section 1. In any county having a popula- tlon of not less than 73,000 nor more than 75,750 :ccording to the last preceding federal census, the commissioners court may allow each member of the commissioners court not more than $150 per month for traveling expenses and depreciation on his automobile while on official business within the county. Each member of the commissioners court shall pay all expenses in the operation of his automobile and keep It in repair free of any other charge to the county. 'Sec. 2. As used in this Act, 'members of the commissioners court' means the county commissioners -4544- Hon. John Lawhon, page 2 (M-932) and the county judge. 'Sec. 3. This Act applies only to counties not furnishing an automobile or truck or by other means providing for the traveling expenses of members of their commissioners courts while on official business within the county. "Sec. 4. In any county in this state having a population of not less than 11,870 and not more than 12,000, according to the last preceding fed- eral census, the commissioners court is hereby authorized to allow each member of the court the sum of not exceeding $125 per month for traveling expenses and depreciation on his automobile while on official business within the county. Each member of the court shall pay all expenses In the operation of such automobile and keep the automobile in repair free of any other charge to the county. 'Sec. 5. As used in this Act, 'the last preceding federal census' means the 1970 census or any future decennial federal census. This is despite any legislation that has been or may be enacted during any session of the 62nd Legisla- ture delaying the effectiveness of the 1970 cen- sus for g:neral state and local governmental purposes. Section 56 of Article III of the Texas Constitution pro- hlbits the Legislature from passing any local or special law where a general law can be made applicable. The purpose of this con- stitutional provision has been very ably explained in Miller v. El Paso County, 136 Tex. 370, 150 S.W.2d 1000 (1941) at page 001-1002: "The purpose of this constitutional lnhi- bition against the enactment of local or special laws is a wholesome one. It is intended to pre- vent the granting of special privileges and to secure uniformity of law throughout the State as far as possible. It is said that at an early period in many of the states the practice of enacting special and local laws became 'an efficient means for the easy enactment of laws for the advancement of personal rather -4545- Hon. John Lawhon, page 3 (M-932) than public interests, and encouraged the reprehensible practice of trading and "log- rolling."' It was for the suppression of such practices that such a provision was adopted in this and many of the other states of the Union. 25 R.C.L., p. 820, $68. 'Notwithstanding the above constitutional provision, the courts recognize in the Legisla- ture a rather broad power to make classifications for legislative purposes and to enact laws for the regulation thereof, even though such legisla- tion may be applicable only to a particular class or, in fact, affect only the Inhabitants of a particular locality; but such legislation must be Intended to apply uniformly to all who may come within the classification designated In the Act, and the classification must be broad enough to Include a substantial class and must be based on characteristics legitimately dis- tinguishing such class from others with respects to the public purpose sought to be accomplished by the proposed legislation. In other words, there must be a substantial reason for the classification. It must not be a mere arbitrary device resorted to for the purpose of giving what is, In fact, a local law the appearance of a general law. City of Fort Worth v. Bobbitt, 121 Tex. 14, 36 S.W.2d 470, 41 S.W.2d 228; Bexar County V. Tynan, 128 Tex. 223, 97 S.W.2d 467; Clark v. Finley, Comptroller, 93 Tex. 171, 178, 54 S.W. 343; Supreme Lodge United Benevolent Ass'n v. Johnson, 98 Tex. 1, 81 S.W. 18; Smith v. State, 120 Tex.Cr.R. 431, 49 S.W.2d 739; Randolph v. State, 117 Tex.Cr.R. 80, 36 S.W.2d 484; Fritter v. West, Tex.Civ.App., 65 S.W.2d 414, writ refused; State v. Hall, Tex.Civ.App., 76 S.W.2d 880; Wood v. Marfa Ind. School Dist., Tex.Civ.App., 123 S.W.2d 429. As said in Leonard v. Road Maintenance District No. 1, 187 Ark. 599, 61 S.W.2d 70, 71: 'The rule is that a classification cannot be'adopted arbitrarily upon a ground which has no founda- tion'ln difference of situation or circumstances of the municipalities placed in the different classes. There must be some reasonable relation -4546- Hon. John Lawhon, page 4 (M-932) between the situation of municipalities clas- sified and the purposes and objects to be attained. There must be something * * * which in some reasonable degree accounts for the division into classes." Because population as a basis for classification has been sustained by the courts with respect to legislation on certain subjects, /-City of Ft. Worth v. Bobbltt, 121 Tex. 14, 41 S.W.2d 228 (193n; Clark V, Finley, 93 T 1'11,54 S.W. 343 (1899) 7, it has been widely, and erroneous:;; assumed that popula- tion bFackets may be resorted to in all instances to avoid the pro- hibition of Section 56 of Article III of the Texas Constitution. This erroneous assumption emanates from a lack of appreciation for the fact that population has been sustained as a basis for classification only In those instances where population bears a reasonable relation to the objects and purposes of the law and the chosen population bracket was founded upon rational differences in the conditions, status, duties or circumstances of the groups included and excluded from the operable effect of the law. Bexar County v. Tynan, 128 Tex. 223, 97 S.W.2d 467 (1936). Where it been determined that, considering the objects and purposes of the law, differences in population afford no rational basis for dis- criminating between groups of the same natural class, classifica- tion has been termed arbitrary selection, and the law has been held to be special and local within the prohibition of Section 56 of Article III. Smith V. Decker, 158 Tex. 416, 312 S.W.2d 632 (1958); San Antonio Retail Grocers v. Lafferty, 156 Tex. 574, 297 S.W.2d 813 (195',)*Rodrigues v. Gonzales, 148~Tex. 537, 227 S.W.2d 791 (1950); Anderson v. Wood, 137 Tex. 201, 152 s.W.2d 1084 (1941). Reference to House Bill 1754 shows that it creates two categories of counties for the purpose of the allowance of travel- ing expenses and automobile depreciation for county judges and county commissioners. One category is those counties having a population of not less than 73,000 nor more than 75,750. In these counties the allowance may be set at any sum up to $150.00 per month. The second category is counties having a population of not less than 11,870 and not more than 12,000. In these counties the allowance may be set at a sum not exceeding $125.00 per month. These provisions must be construed in light of the provisions of Article 23500 of Vernon's Civil Statutes, which is the general statutory provision pertaining to the allowance for travel ex- penses and automobile depreciation for the members of the com- missioners court. The provisions of that act read as follows: -4547- Hon. John Lawhon, page 5 (M-932) 'Section 1. In any county in this State having a population of not more than twenty-one thousand, five hundred (2l,5OO), according to the last preceding or any future Federal Census, the Commissioners Court is hereby authorized to allow each member of such Commissioners Court the sum of not exceeding Seventy-five Dollars ($75.) per month for traveling expenses and depreciation on his automobile while on of- ficial business within the county. Each member of such Commissioners Court shall pay all ex- .e penses in the operation of such automobile and keep same in repair free of any other charge to the county, 'Sec. 2. In any county in this State having a population In excess of twenty-one thousand, five hundred (21,500) but not in excess of one hundred twenty-four thousand (124,000), according to the last preceding or any future Federal Cen- sus, the Commissioners Court is hereby authorized to allow each member of the Commissioners Court the sum of not exceeding One Hundred Dollars ($100) per month for traveling expenses and depreciation on his automobile while on official business within the county. Each member of such Commissioners Court shall pay all expenses in the operation of such automobile and keep same in repair free of any other charge to the county. "Sec. 3. In any county in this State having a population in excess of one hundred twenty-four thousand 124 000 but not in excess of six hundred thousand 1600:000] according to the last preceding or any future FedeGal Census, the Commissioners Court is hereby authorized to allow each member of the Commissioners Court the sum of not exceeding One Hundred and Twenty-five Dollars (8125) per m~onthfor traveling expenses and depreciation on his automobile while on official business within the county. Each member of such Commissioners Court shall pay all expenses in the operation of such automobile and keep same in repair free of any other charge to the county. "Sec. 4. In any county of this State having a population in excess of six hundred thousand -4548- Hon. John Lawhon, page 6 (M-932) (~OO,OOO), according to the last preceding or any future Federal Census, the Commissioners Court is hereby authorized to allow each member of the Commissioners Court the sum of not ex- ceeding One Hundred and Fifty Dollars ($150) per month for traveling expenses and depreciation on his automobile while on official business within the county. Each member of such Commis- sioners Court shall pay all expenses in the operation of such automobile and keep same in repair free of any other charge to the county. "Sec. 5. The term 'members of the Commis- sioners Court' when used herein means the County Commissioners and the County Judge. "sec. 6. The provisions of this bill shall apply only to those counties not furnishing an automobile, truck, or by other means providing for the traveling expenses of Its commissione$s, while on official business within the county. A comparison of the two acts makes it readily apparent that the sole purpose of House Bill 1754 is to create two very narrow exceptions to the provisions of Section 1 and Section 2 of Article 23500. According to the 1970 census figures, Section 1 of House Bill 1754 could apply only to Denton County, Texas, and Section 4 could apply only to Comanche County, Texas. Under the provisions of Article 23500, Denton County is in a classifica- tion of counties where the maximum sum allowable for travel ex- penses and automobile depreciation is $100.00. House Bill 1754 would place Denton County In a category of counties now limited to those having a population in excess of 600,000, thus, in effect, jumping Denton County over that category of counties specified in Section 3 of Article 23500. Section 4 of House Bil~l1754 removes Comanche County from that classification of counties established by Section 1 of Article 23500, and places it in the category established by Section 3 of that Article, which applies to counties having a population in excess of 124,000, but not in excess of 600,000. We are aware of no unique circumstance or situation which exists in Denton and Comanche Counties which would warrant their removal from the general classification already established by Article 23500, Vernon's Civil Statutes, and place them on a par with counties having much larger population for the purposes of travel expense and automobile depreciation allowance for the members of the commissioners court. For this reason, and upon the rationale of Miller v. El Paso County, supra, we hold that House Bill 1754 -4549- Hon. John Lawhon, page 7 (M-932) is a local or special law within the meaning of Section 56 of Article III of the Texas Constitution and is therefore invalid. SUMMARY House Bill 1754, Acts 62nd Leg., R.S. 1971, Ch. 583, p. 1927, is a local or special law within the meaning of Section 56 of Article III of the Texas Constitution and is therefore un- constitutional. /7 ey General of Texas Prepared by W. 0. Shultz Assistant Attorney General APPROVED: OPINION COMMITTEE Kerns Taylor, Chairman W. E. Allen, Co-Chairman Bob Lattimore Sam McDaniel Ben Harrison Ivan Williams MEADE~F. GRIFFIN Staff Legal Assistant ALFRED WALKER Executive Assistant NOLA WHITE First Assistant -4550-