Eon. John C. Xarburger Opinion Bo. v-386
county Attorney
Fayette County Be: Constltutlonallty of
La Grange, Texas IL&.~;7; A~tb or the
., relative to
county juvenile boards
In certain counties.
Dear Sir:
You have requested this 0rrm to determlne
the cdnstltutlonality of H. B. 257, Acts o? the 50th
Legislature, p. 560,~Vernon’s Texas’ SedsioiLaw Service.
H. B. 257 Is an Act amending Article 5139, V.C.S., so
as to create Couqty Juvenile Boards In certain counties.
The provisions vhlch were added to Article 5139 by II. B.
2.576re as r0ii0ws:
“In any county having a population 0r
less than seventy thousand (70,000) inhabl-
tants according to the lest preceding Federal
Census, which county Is Included in, and forms
a part of a Judicial District of aeven (7) or
more counties having a combined populstion of
more than fiity-two thousand (52,000) inhsbi-
tank, or which county is included in and forms
a part of a Judicial District or five (5) or
more counties having a combined population of
more than seventy-two thousand 72 000 and
lesa than ninety-five thousand 1,95,000 1 lnhabl-
tants according to the last preceding Federal
Census, or which county Is included In and
forms a part or a Judicial District of five
(5) or more counties, in one (1) or more or,
which counties the civil and criminal jwis-
diction vesting by General Law in the County
Court has been or hereafter shell be trans-
ferred to the exclusive jurisdiction of the Dis-
trict Court of such county or counties, and
having a comblned~populationln such Judicial
District of more than thirty-five thouaand (35,-
000) inhabitants, according to the last preced-
ing Federal Census; or which county is included
in and forms a art of a Judicial District com-
posed of four ( $ ) counties having a combined
i
Hon. John C. Wsrburger - Page 2 (v-386)
population of not more than sixtytwo thou-
sand (62,000) inhabitantsaccording to such
last preceding Federal Census, one (1) or
more counties In which districts border on
the InternationalBoundary between the
United States and the Republic of Mexico;
the Judge of such Judicial District, to-
gether with the County Judge of such county
are hereby constituted a Juvenile Board for
such county. The members composing such
Juvenile Board in each such county shall
each be allowed additional compensation of
not less than One Hundred Dollars ($100)
and not more than Three Hundred
x:;1~~4300) or annum, which shall be
paid in twelve P12) equal installments out
of either the general fund or the jury fund
or such county, such additional compensation
to be fixed by the Commissioners Court of
such county. ”
Article III, Section 56, provides in part:
‘The Legislature shall not, except as
othervise provided in this Constitution, pass
any local or special law, . . .
“Regulating the affairs of counties. . .,
“Creating ofrlces, or prescribing the
powers and duties of officers, in counties. . .”
Article V, Section 1, provides:
“The judicial power of this State shall
be vested in one Supreme Court, in COUrta Of
Civil Appeals, in a Court of Criminal Appeals,
in District Courts, in County Courts, In Com-
missioners’ Courts, in Courts of Justlces of
the Pesce, and in such other courts as may be
provided by law.
II. . .
“The Legislature may establish such other
courts as it may deem necessa.ry and prescribe
the jurisdiction and organization thereof, and
may conform the jurisdiction of tht District
and other inferior courts thereto.
..
Eon. John C. Marburger - Page 3 (V-386) '
It may be contended that this Act is governed
by Article V, Section 1 of the Texas Constitution, and
therefore is not subject to the provisions of Article
III, Section 56, (See Harris County v. Crooker, 224 S.W.
792, affirmed 112 Tex. 459, 248 S.W. 652; Garvey v.
Matthews, 79 S.W. (2d) 335, error refused; Jcnes v.
Anderson, 189 S.W. (26) 65, error refused. and Tom
Green County v. Proffit, 95 S.W. (26) 8451; however, the
Supreme Court, citing numerous authorities of analogous
situations, held in the case of Jones v. Alexander, 59
S.W. (26) 1380, that the county juvenile boards do not
have, nor do they exercise, any judicial power or func-
tion.
It was further held that the Legislature, when
authorizing additions1 salaries to be paid to the mem-
bers of juvenile boards for such services, may take into
consideration the population and size of the county,~its
taxable values and general conditions existing therein,
but in any event, the cla.ssificationmust be based upon
a real distinction. See 81~0 Clark v. Finley, 93 Tex.
171, 54 S.W. 343. In view of the foregoing, it is ap-
parent that R. B. 257 is subject to the provisions of
Article III, Section 56.
Thereforz, the question for declzign iz whether
the classifications present a reasonable relation to the
objects and purposes of the law snd are founded upon ra-
tionsl differences in the necessities and conditions of
the countlez effected by the Bill.
In the csze of County of Bexar v. Tynen, 97 S. W.
(2d) 467, the Supreme Court of Texas announced the prin-
ciple which controls the matter herein:
"votwithztending it is true that the
Legislature may ola.szifycounties upon the
basis of population for the purpose of fix-
ing compensation of county and precinct
officers, yet in doing so the classlfica-
tion must be based upon a real distinction,
and must not be arbitrary or R device to
give what is in substance a local OF zpe-
cial law the form of a~generel law.
We quote the following cram Oakley v. Kent, 181
S.W. (26) 919:
. ;:
/ ..
i
Hon. John C. lIarburger- ?age 4 (V-386)
p o p u la tio n a s l besls for
“‘B a o a u a e
olaaslfioatlonhaa been sustainedb7 the
co&t8 ln rerpeot to leglsfatlonon certain
subjeots,It has been aasimed, erroneously,
that population braokets ~111 serve in all
Instanceato avoid the oondemnatlonof the
differeiicesin population afford uo rstlonal
basis for dlscrimInatingbetveen groups of the
same natural clam, claasiiicatlonon the
ba8i8 Of pOpti8tIonhas been termed arbitrary
selectlon,and the lav haa been held to be
special and local. Randolph v. Sthte, supra."
(Rmphasisours)
For additional authorities,see HIllor, et al, 0.
El Paso County (Su Ct.) 150 S.Y. (26) 1000; Xx ?arte
App.7'159 S.U. (26) 126; Jameson v. Smith,
520; Clt of Ft. Uorth v. Bobbitt, 121 Tex.
1 S.Y. (26) 228; Supreme Lodge
26) 470, 3;
Benevolent ~ss'n. v. Johnson, g8 Tex. 1, 81 S.W. 18;
Smith v. State, 49 S.W. (26) 739; Rand01 h v. State, 36
S.Y. (26) 464; Fritter v. Weat, 65 9.W.~P26) 414, writ
refused; State v. Hall, 76 S.Y. (26) 880; Wood v. MsPfa
Ind. School Diet., 123 3.W. (26) 429; Leonard v. Road
MaintenanceDlst. Ro. 1, 187 Ark. 599, 61 S.W. (26) 70.
In the case of Jones v. Alexander, supra, the
CoUPt VaB PSBSiIlg
Upon the ~OllStitUtiOMlft~ Of &tiOlS
5139, V.C.S., which provides that In a county having a
population of 100,000 or over the judges of~the several
district court8 and crlmIna1 district court8 of such county,
together vIth the county judge of such county, are.constI-
tutcd s juvenileboard, and fixes the annual salary of each
of such district judges as members of said Board at $1500
In addition to that paid the other bistrlct judges of the
State. There vas no couuty of 100,000 popul8tionor over
oaitted, and the court held that this vas a reasonable
claB8Iflcrtion. It is of co10n Lnovledgethat In the
larger olties and counties of our State juvenile delinquen-
cy is more prevalent than in the smaller tovne and coun-
tfis3, Therefore,there oould be a reason for having such
.
Bon. John 0. Narburger'- Page 5 +386)
a Board In all of the large counties of the State.
Hovever, the olassIfIcatIon8contained In the pro-
visions vhich were added to Artlole 5139 by H. B. 257
are not based on populstlon or any other condition of
the countiee alone, but are based upon population of
judICla1 districts and other condltlonswhich lie out-
Bid0 the boundaries of the counties affected. The
classlflcatlonado not bear a reasonable relation to
the object8 and purposes of the lav and nre not found-
ed upon ratlonal differences in the neoessltles or
conditions of groups subjectedto different laws.
It is our further oplnlon that even If the
clas3Iflcationsshould bear a reasonable relation to
the object8 or purposes of the law, they me e@bItiw
because there are numeroue oountles VIthIn this State
with a much greater populetlon than those Included In
the provisions vhIch were added to Article 5139 by
II.B. 257 and coming vIthIn the same category vhIch
have no such juvenile board. Belpg arbitrary clasal-
ficatlons, the Bill I3 ln substance a local and spe-
cial law In violation of Article III, Section 56, of
our State Constitution. It 13 our opinion that the new
portion of Article 5139 which was edded by B. B. 257 is
unconstItutIonaland VOIU.
SUMMARY
H. B. 257, Regular Session, 50th Leg-
islature, providing county juvenile boards
In certain special counties within certain
brackets, Is a local and special law with
arbitrary clas3IflcatIon3and therefore un-
constItutIonal. Art. III, Sec. 56, Texas
Constitution.
SR:dja Assistant