Hon. Tor,A. Graven opiaion %o. v-893
County AudItor
XcLanuan county Re: The oonatitutimalit~ of
Waco, Texas Sec. 1, H.Bi 339, 5ut
Legislature,.Felative to
the salarim OS County
Dear set officlal8.
ROitWOl¶O~ iS Whde t0 $W?W I'OQWtt r@t'JUWbt ia
whioh you inquire a8 to the oonatitutionallty of Seotfon
1 OS Home Bill Ro. 339, Aots of the 51et Legislature,
B.S., 1949. That eeotion reaadst
“In all oormtier irr tM# Bkte having
a population of more than nlnoty thousand
(gO,OoO) perrons aacordirrq to the last pre-
oe&k~ Federal fI.erUua, ana not more than
on. hundred, forty-five thwsaml (145,000)
population aoeording to ,eoah FwUmal Census
aad 02th a tubla valuation fol, oounty pur-
thb county attorney perfornlng the dtttles
.oi a dlstrlot attoraey and the oonnty attor-
ney shall receive an annual *alar7 of Six
Thousand, Floe Rm&ed Dollars ($6,500) pay-
able in equal monthly inetallmonts. The
salary of swb oiricmrr from the effective
date of WI Aot, for the remainder of the
ear 1949, &all be ~$6 on th6 mm8 ratio
i aair at8 the remlndor OT the yea bears to
'the total mnual salary provided hewin."
(lbphaaill 10 added throughout. )
we asmme rr08t you~lrtter that hour question
is, whether the above rwtlon 18 repugnant to Artlole
ra, seation fj6 of the zexar Constitution, which pro-
~v5dat in psrtt
Hon. Tom A. Craven, page 2 (v-893)
“The Legislature shall not, ,exoept ‘as
otherwise provided In this Constitution, pass
any looal or special law, authorizing: , . ,
Regulating the affairs of counties, cities,
towns, wards or school districts: . . .‘I
It wau held in the case of Bexar County v.
T an 128 Tex. 223, 97 S.X.2& 467 (1936) that an act
T&c g salaries of county officers was an’act %eRulat-
lng tiie affairs of counties” within the purview of the
ConstltutZon, and an attempt to do 80 by local or spe-
cial lav uaa void.
In the case of Clark V. Finlee 92 Tex. 171,
54 S.W. 343 (189g), the Supreme CouPt @aid:
%.thout entering at large upon the dis-
cussion of what ie here meant by a ‘local ‘or
.special law,’ it is sufficient to sag that a
Statute which relates to persona or things a8
a class is a general law, while a statute
which relates to partioular persons or things
of a class is special, and comes within the
constitutional prohibition. . . .
“There must be a classification. That
claselflcatlon may be ei$hher by populatlan or
by taxable valuea. . . .
In City of Fort Worth v. Bobbitt, 118 Tex. 14,
36 S,W.2d 470 (1931) the Court in holding void an Act
of the Legislature wiote:
‘It will be noted that section 1 of the
act confines its application absolutely to
olties which, acootihlnn to the United States
ceneua of 1920, contain not less than 106 m0’
and not more +%a.n110,000 Inhabitants. AA
examination of the oensu~ referred to dls-
clo~ses that the olty of Fort Worth, Tex., is
absolutely the only-oltg in the state of-
Texas that has a population coming within
the prOViSiOn of this act. Furthermore, the
act Is eo.construated that it is absolutely
impossible for any other city in the state to
ever be Included within the terma or under the
provision8 of the act. It i8 therefore our
opinion that this act is confined In its ap-
plicatlon to the olty of Fort Worth only, just
Eon. Tom A. Craven, page 3 (V-893)
a8 alearly, and just a6 effectively aa if the
stipulation with reference to population had
been omitted and the name ‘Fort Worth’ written
therein ln Its stead. . . .
lstlng population er upon the population ah%
by specified oeaeua it3 of this oha&aoter.l*
In the cane of l!Uler v. Bl Paso County, 136
Tee.~~~;:l50 S.YiZd 1000 (19411, chief Justice Alexan-
“The purpose of thlr oonatltutlonal ln-
hlbltlon againat the enaotment of local or
special lawa Is a wholesome one. It is ln-
tended to prevent ths granting of epeclal
privileges and to secure unlformlty of law
throughout the State aa far as possible. It
lz said that at an early perlod ln many of
the states the praotlce.of enacting special
and local laws beoame ‘an efflclent means for
the ea8y enactment of law6 for the advance-
ment of personal rather than public Interests,
and encouraged the reprehensible practice of
trading and “logrolllng.“f It was for the
supprebrlon of r$uoh practices that auoh a ppo-
virlo~ was adopted in thlr, and many of the
other atates of the Union. 25 R.C.S., p. 820,
I 68.
“Ilotvlthstandlng the above constitutional
provizlon, the courta recognize ln the Legla-
lature a rather broad power to make olaSSlfi-
cation8 for legislative purposes and to enaot
law8 for the regulation thereof, even though
euoh legll)~tiOQ may be applloable only to a
partloular olars or, in faot affeot only the
Bon. Tom A. Craven, page 4 (V-893)
substantial class and must be based on charac-
teristics legitimately distlnguIshlng such
class from others with respect to the public
purpose sought to be aocompllshed by the pro-
posed legislation. In other words, there must
be a subrtantlal reason for the classification
. . .
” Resort to population brackets for
the purioie’of clas8IfyIng subjects for legis-
lation IS permissible where the spread of pop-
ulation Is broad enough to Include or segre-
gate a substantial class, and where the popu-
lation bears some real relation to the subject
of legislation and affords a fair bat3113ror
the olassIfIcatIon.”
In that case, a etatute dealing with county
affairs was made appliaable to counties having a popula-
tion of not less than 125,000 and not more than 175,000
and oontainlng a city of not less than 90,000 inhablt-
ante. The Court said It could apply only to El Paso
County and that such fact must have been known to the
Legislature. The Court wrote that, “We are therefore
met at the outset with a law which under the facts well
known at the time of its adoption, was applicable only
to a single county. Clearly then it Is a local law and
must fall as such, unless it can be fairly said that
the class so segregated . . . has charaoterletlos dig-
tInguIshIng it from the remainder of the State . . .
The Court found no such dl8tInguiOhIng oharao-
terietios and held that the Aat vas void.
The Millet-El Paso case has been uniformly
followed under applicable fact situations. Thus In
Ex Parte Carson, 159 S.U.2d 126 (Tex. Grim. 1942) the
urt f C imlnal Appeals held void an Act SIxIng a
febe So: oointy lav libraries where the act wa8 appllca-
ble only to Harris and mllaa Couutles. In Jameson v
Smith 161 S.Y.2d 520 (Tex. Clv. App. 1942, m
Gf), the Court held void an Act Increasing the aala-
rler of County Co~ssioners in Coleman County only.
And in Oakley v. Kent,, 181 S.U.Pd 919 (‘Per. Civ. App.
19441, hi 0 t following an Attorney Oeneral’a Opln-
iou, held’voy?& aot lpplloable to counties of not
leer than 140,000 nor more than 220,000 population where
it va8 shown that It applied only to Jefferron County.
That Act was to create a oontral purohaalng agenor for
the county. .
Hon. Tom A. Craven, page 5 (V-895)
Upon oonsultlng the 1948 tax valuations of the
various countise lmthie State, we flhd that Section 1
of H.B. 339 can only be applicable now or ln the future
to ten oounties towltz Bexar, BraLoria, Dallas, C+alV68ton,
Orean. Harris. Jefferson. NcLennan. liueces and Tarrant.
The-&t 18 noif aDQliOabli. by vlrtui of the pouulatlon
bracket. to IllcLennan and %u6oe6 Countlea only. In other
words. there are 244 other counties which are excluded
from ihe provleion6 of thin Aot, and perpetually 80,
even though they may be eirilarly situated in the future.
This 18 true beoawe the Aot lidto its applleatlon to
oountiee having a valuation of ~85,000,000 according to
a particular, past valuation; i.e., the"1948 tax valua-
tion. Bo aountles, of oour6e, can ohenge their 1948 tax
valuatlone. In this re ard, 2 Sutherland Statutory Con-
rtruotlon (3rd ed. 1943 7 '37, @aye:
n An Act llmIted to a particular
census is'a'fora of ldeutlfloatlon and lnval-
id, a6 no subsequent changie in population
would enable other ootummitle8 to oome wlth-
ln the quallfIoatlon8 of the Act.”
By analogy, we believe the name to be true oon-
oernltt@en Aot limited to the tax Valuati'Qn for a partl-
aular year.
We oannot oonoelve of any be618 for permanently
excluding 244 count&e6 from the provisions of this Act,
any one of whleh could in the future be similarly sltu-
at&d a6 those now included. Ye de nat believe that this
16 a rational or reasonable olarslfloatlon but 18 arbl-
trary .
In visa of the fore@olng It 16 our Opinion
that Section 1 of Ii, B. 339 16 unoonetltutlonal in 80 far
as It pertains to the Sh&iff, Anderson v. Wood, 137 TSX.
201, 152 S.W.2d 1084 (1941), the County Judge, 'Ward v.
209 S.W. 792 (Tex. Clv. App. 19lm
~%?$%!%triot Clerk Duclos v. ,Barris Cou&,~$~
Tex: i4?. 263 S.W. 562 (14241. the Counts Clerk, th
Asaesao~'andCollec~&,‘t~e &nty Attorney and-the Com-
ty Attorney perfoxmlng the dutlee of a Matriot Attorney.
Although Section 1 of H.B. 339 16 unoonatltu-
tlonal as being In vlolatlon of Artiole III, Section 56
in eo far a8 it pertains to the above mentlon6d oounty
offloere, the bill Is not governed by said constitution-
al provl6lon6 in 80 far as it pmtaine to the office of
Hon. Tom
CriwlialMstrlot Atterney, since the ofSloe e? DirtrIot
Attorney er C~lmlaal M~trlct Attorney is en inoident to
th.4 Suaotloniag of courts whztob the Legislature or4ates
r.isdietien and 0rgamOatlm of thoas oourtrwbicb the
Leglslatum may ertabllsh under Art1016 V, Seotlon 1 OS
the Constitution OS Texas, are not governod by the provl-
rlom of Article III, Section 56, and hence looal and
rpeclal Acte relating thereto ar4 valid.
Harria Cow&Y vt Croaker uph4la a etatute,
apeoialin aharaoter,xhleb St*ed the 8al8ryof the B&r-,
trict Atternej 4S the Crlmlnal Mstrlot Court of Harrla
couaty. Jones v. Anderaon upheld a special law creating
the oSSlc4 OS C lml 1 District Attorney for Bexar Coun-
w. Tom Green ~oun~ v. Profltt upheld a law rpeclal
In character, which Stied the salaries of co&t report-
ers In certaincouutiea. lea1 v. Sheppard upheld a law
creating the offioe OS Criminal District Attorney OS a
Mntrlat Court of general jurisdiction in Gr4gg County
whloh alao fixed the ralary for the Cririnal District
Attorney.
IS that part of the Aat psrtainlng to the Crln-
lnal Mstriat~Attorney may be severed from the reMWing
portion, It ie our opinion that the mime ir valid and
oonstttutioaal*
It is
stated in 2 SutherlandStatutoryCon-
struction(3rd ed. 1943) 178-179, Seo. 2404:
"In determining aeparablllty, leglslativ4
intent goveraa, but Intent that the act be en-
forced in 80 far as valid Is not the sole con-
sideration. If the legislature so intended,
the valid parts of an act will be uphela 'un-
less all the provisions are connected in Sub-
ject matter, dependent on each other, operat-
ing together for the eems p~rpo44, or other-
wise so connected together in ~anlng that it
cannot be presumedthe leglrlature would have
peeredthe one without the other.' To be oaW+
bl,rof seD.arate en.Soroement. the valid Dortlon
hon. Tom A. Craven, page 7 (V-893)
of an enactment must b4 lndewndent of the ln-
valid portion antl must form a comulete act
within itself. The law enforced aSt4r separa-
tion must be r4asonable in light of the act as
originally drafted. Th4 teat is whether or
not the lealslature would have Passed the stat-
ute had it been gresent4d with the invalid Sea-
tures removed,"
It la our opinion that the valid portion of
Section 1 of B.B. 339 to wit, the Increasing of compen-
sation of the Criminal District Attorney, forms a com-
plete act within Itself capable of separate enforcement
and the Legislature has declared that it would have en-
acted such ortion with the r4mainder of the Act removed
by Section $ of the Aot, which reads as follows:
"IS any part, S4ctlon, subseation, para-
graph, sentenae, claum, phrallb, or word oon-
talned In this Act ahall be held by the courts
to be unoonstltutional or Invalid, such hold-
ing shall not affect the validity of the re-
maining portions of this Act, and the Leglsla-
ture hereby declare8 that It would have enact-
ed, and does here now enac,t such remaFlng
portiona despite any suoh invalidity.
Ther4fore, that portion of the Act pertaining
to the compensation of Crlml.nal Mstrict Attorn4g Is
valid and not unconatitutlonal.
You have not Inquired a8 to the constitution-
ality of Section 2 of R.B. 339; therefore, this opinion
is not to be construed as pa.ssing on the validity of
said Section,
Sectlen 1 of H.B. 339, Aote of the 514t
Legislature, 1949, Slxlng the salaries of
county officiali in certain counties la a
local and special law in violation of Article
III, Section 56 of th4 Constitution of Texas
In 80 far as It psrtalaa to the Sheriff, Coun-
ty Judg4, Diatriot Clark, County Clerk, Tax
Asaeesor-Collecter, County Attorney and the
County Attorney performlag the duties of Dis-
trlot Attorney. Bemar Counts v* Tsnan, 128
Hon. Tom A. Craven, page 8 (V-893)
263 S.W. 562 (1924).
Section 1 of H.B. 339 58 valid and oon-
stitutional in eo far aa It pertains to the
office of Cririrral District Atterney. Veal
v She, 8rd 209 S.U.2d 388 (Tex. Clv. A
Itim#fs v,. Aalderaon, 189 S.Y.2d 65 i"
Tex.
Clv. App. 1945).
Yours very truly,
ATTOHEEiGENERALOF TEXAS
BAsmw:bh Aeeletant