MEIY26, 1969
Honorable Joe Shannon, Jr. Opinion No. M-404
Chairman, Committee on Countiea
House of Representatives Re: Con8tltutlonallty of
Austin, Texas H.B. 1305 providing for
constructton and main-
tenance af private roads
by counties of more than
10,000 but less than
Dear Mr. Shannon: 10,050 populatlon.
In your recent request for an opinion of this office,
you provided us with a copy of,House Bill 1305, now pending
in the Committee on Countiee. You requested advice a8 to the
constitutionality of the aaid bill, with particular regard to
whether it may be considered a local or special law, and.88
to whether the bill contain8 an unconstitutional permission
for private u8e of county property.
H.B. 1305, In Section 1, provides as follows:
“Section 1. The county commleeloners court
of a county which has more than 10,000 person8
but fewer than 10,050 person8 according to the
last preceding federal census, by order, may
authorize a commissioner of the county to direct
the use of county employee8 and equipment to
construct and maintain any private road in his
precinct, w’henrequested to do 80 In writing
by a person owning an intereat In the private
road or In the land on which the private road
is to be constructed.
Article III, Section 56, Constitution of Texas, pro-
vides, In part, as follows:
“The Legislature shall not, except as
otherwlee provided In thle Constitution, pa88
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. .
Mr. Joe Shannon, page 2 (M-404)
any local or special law, authorizing: . . .
regulating the affairs of counties, cities,
tOWn8, wards or School diStrict8; . . .
creating offices or prescribing the powers
and duties of officers, In counties, . . .'I
Your particular attention Is directed to Miller v.
136 Tex. 370, 374, 150 S.W.2d lOOO,-
Court held as follows:
"Notwithstanding the above constitutional
provision firtlcle III, Section 567, the courts
recognize rn the legislature the Father broad
power to make classiflcatlons for leglelatlve
purposes and to enact laws for the regulation,
thereof, even though.Such legl8latlon may be
applicable only to a particular class or, In
fact, affect only the inhabitant8 of a particular
locality; but 8uch~legi8lation must be Intended
to apply unlformly to all who may come within
the classlflcatlon designated In the Aot, and
the clasalflcatlon must be broad enough to ln-
elude a substantial class and must be based
on characterlatlcs legitimately di8tinguiShing
such class from Other8 with respect to the
public purpose Sought to be accomplished by
the proposed legislation. In other wOrd8,
there,must bega substantial reason for the
classlflcation. 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." (Emphasis added.)
We think this further language In the Mlller'caee la
applicable here:
"The peculiar llmltatlons employed bj the
Legislature In this lnatance to segregate the
class to be affected by the legislation not
only bears 'no SUbStantial relation to the ob-
ject sought to be accomplished by the Act, but
the purported class attempted to be .so segregated
IS, in fact, not a class di8tinCt in any 8ub-
stantlal manner from Other8 In this State."
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Mr. Joe Shannon, page 3 (M-404)
HOUSe Bill 1305 makes no findings or statements In support of
the grant of authority In question to the particular bracket
Class of counties. For further authorities on this point see
Attorney Qeneral'e Opinions c-481 (1965); C-442 (1965); c-244
(1964); C-138 (1963); v-386 (1947).
A close examination of House Bill 1305 does not
reveal any broad-based public purpose for the claeslflcatlon
made therein; the on1 baSi8 Is counties containing at least
a popuIatlon of 10,
7x& and not more than 10,049. You are
accordingly advised that HOUSe Bill 1305 Is unconetltutlonal,
being In violation of Article III,,Sectlon 56, Texas Con-
8tltutlon.
In view of our answer to your first question, we do
not reach any further po88ible grounds of uncon8tltutlonalltg
In the bill.
SUMMARY
House Bill 1305 Is unconetltutlonal, being
in violation of Article III, Section 56, Texas
Constitution, as a local and 8peclal~blll.
Prepared by Malcolm L. Quick
Assistant Attorney oeneral
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
George Kelton, Vice-Chairman
Bill Allen
Harold Kennedy
Jack Sparks
Roland Allen
Hawthorne Phillips
EXfzCUtiVe ASSiStallt
W. V. Geppert
Staff Legal ASSiStant
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