THE AITOECNEY GENERAL
OF -XAS
May 25, 1971
Honorable Bill Clayton Opinion No. M-871
Chairman, Committee on Counties
House of Representatives Re: Constitutionality of S. B.
P. 0. Box 120, Capitol Station 669, 62nd Leg., R.S., 1971,
Austin, Texas 78711 relating to the power of
the Commissioners Courts
in certain counties to re-
strict the keeping of hogs
or hog pens in certain
circumstances.
Dear Mr. Clayton:
You have requested our opinion on the constitutionality of
Senate Bill 669 of the 62nd Legislature, R.S., 1971, which pro-
vides:
"Section 1. The Commissioners Court of a
county having a population of more than 1,000,000
and not more than 1,500,000, by order may prohibit
the keeping of hogs or hog pens within 500 feet of
any residence in the county which is not within
the jurisdiction of an incorporated city or town.
"Sec. 2. A person who violates an order of
the Commissioners Court under this Act, after having
actual notice of the adoption of the order, is guilty
of a misdemeanor and upon conviction is punishable
by a fine of not less than $10 nor more than $200;
and a separate offense is committed each day a vio-
lation continues.
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Honorable Bill Clayton, page 2 (M-871)
Article III, Section 1, of the Constitution of Texas,
provides:
"The legislative power of this State shall
be vested in a Senate and House of Representatives,
which together shall be styled 'The Legislature of
the State of Texas'."
Section 56 of Article III of the Constitution of Texas
provides, in part:
"The Legislature shall not, except as other-
wise provided in this Constitution, pass any local
or special law, authorizing:
,I
...
"Regulating the affairs of counties, cities,
towns, wards or school districts:
4,
. . .
"And in all other cases where a general law
can be made applicable, no local or special law
shall be enacted: ...(I
Section 23 of Article XVI of the Constitution of Texas
provides:
"The Leqislature may pass laws for the requ-
lation of live stock and the protection of stock
raisers in the stock raisins portion of the State,
and exempt from the oreration of such laws other
portions, sections, or counties: and shall have
power to pass general and special laws for the
inspection of cattle, stock and hides and for the
regulation of brands; provided, that any local law
thus passed shall be submitted to the freeholders
of the section to be affected thereby, and approved
by them, before it shall go into effect." (Emphasis
added.)
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Honorable Bill Clayton, page 3 (M-871)
Stock laws passed in compliance with Section 23 of
Article XVI are exempt from the provisions of Section 56 of
Article III. Therefore, pursuant to the provisions of Sec-
tion 23 of Article XVI, the Legislature is authorized to pass
a law regulating livestock making it applicable to the entire
State or it might exempt any county from the operation of such
law. Armstronq v. Traylor, 30 S.W. 440, (Tex.Sup. 1895);
Mulkey v. State, 201 S.W. 991 (Tex.Crim. 1918); Ex Parte Thompkins,
83 S.W. 379 (Tex.Crim. 1904); Ex Parte Winslow, 164 S.W.2d 682
(Tex.Crim. 1942).
Senate Bill 669 neither makes the law applicable to the
entire State nor makes the law applicable to any particular
county. Rather, it delegates such legislative power to the
commissioners court of a county having a population of more than
1,000,000 and not more than 1,500,000, in violation of Section 1
of Article III, Texas Constitution.
If a stock law governed by the last portion of Section 23
of Article XVI is enacted, such local law must be submitted and
approved by a vote of the freeholders of the locality affected.
Armstronq v. Travlor, supra.
Furthermore, prohibiting the keeping of hogs or hog pens
within a certain distance of any residence in a county outside
the corporate limits of a city or town is not a law regulating
livestock or the protection of stock raisers nor is it a law
providing for the inspection of cattle, stock and hides with a
regulation or for the regulation of brands, within contempla-
tion of Section 23 of Article XVI; therefore, Section 56 of
Article III relating to local and special laws applies to this
Bill. We cannot perceive any reasonable basis for prohibiting
the keeping of hogs or hog pens within 500 feet of any residence
which is not within the jurisdiction of an incorporated city or
town and making such penal provisions applicable only to areas
of a county having a population of more than l,OOO,OOO and not
more than 1,500,OOO and excluding all other areas in the State.
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r .
Honcrable Bill Clayton, page 4 (M-871)
Therefore, it is our opinion that Senate Bill 669 con-
stitutes a local or special law in violation of the above quoted
provisions of Section 56 of Article III. Miller v. El Paso County,
136 Tex. 370, 150 S.W.2d 1000 (1941); Bexar County v. Tvnan, 128
Tex. 223, 97 S.W.2d 467 (1936).
You are therefore advised that Senate Bill 669 of the 62nd
Legislature, R.S., 1971, is unconstitutional.
SUMMARY
Senate Bill 669 of the 62nd Legislature,
R-S., 1971, authorizing the commissioners court
of a county having a population of more than
l,OOO,OOO and not more than 1,500,000, to pro-
hibit the keeping of hogs or hog pens within 500
feet of any residence within the county which is
not within the jurisdiction of an incorporated
city or town and making a violation of such order
a misdemeanor is unconstitutional. Sections 1
and 56, Article III, Texas Constitution.
Ve
ey General of Texas
Prepared by John Reeves
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
W. E. Allen, Co-Chairman
Pat Bailey
Lonny Zwiener
Bob Lattimore
Max Hamilton
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Honorable Bill Clayton, page 5 (M-871)
MEADE F. GRIFFIN
Staff Legal Assistant
ALFRED WALKER
Executive Assistant
NOLA WHITE
First Assistant
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