GROVER SELLERS AUSTIN ,,.T~xaw 

XXX-xXxX 

ATIP0RNW-Y C-EBTCWAI. 

Honorable Shelby K. Long 

County Attorney 

Jefferson County 

Beaumont, Texas 

Dear Sir: Opinion No. O-5326 

Re: Constitutiona:lity of Senate'Sill 

No. 262, Acts of'the 48th Legislature 

Your 

ment 

letter of May 21, 1943, requesting the opinion of this departon the above stated matter reads in part as follows: 

"This office has a request for an opinion as to the constitutionality of Section Three of the above Senate Bill, and because of Section Five we would like to have your opinion covering the constitutionality of the entire Bill. In the event 

that some section shall be held unconstitutional, then, in your 

opinion, is the whole Bill invalid because of Section Five. 

"In connection with this I wish to call your attention to cases 

which I think bear on this question: 

"City .of Fort Worth v. Bobbitt,~ 41 S.W. 288: 

"Miller v, El Paso County, 150 S.W. 1000; 

"Tinner vs. Crow, 78 S.W. (2) 588. 

Qood V. Marfa Ind. Sch..Dist. 14i S.W. (2) 590; 

"Bexar County v. Tynan, 97 S.W. (2) 467. 

I believe that the last mentioned case contains more information 

and law in point than the other cases,cited. 

"Please furnish me this opinion as soon as possible, as the 

effective date is June lst, and we would like to know as to 

the constitutionality of this Bill before putting it in operation in this county. 

" 11 . . . . . . . 

Senate Bill No. 262; Acts of the 48th Legislature, Regular Session, 

1943, is an act 

"fixing the compensation of certain designated county officers 

in certain counties- ,providing for the creation and operation 
Honorable Shelby K. Long, page 2 0-5326 

of certrin offices in certain: counties; providing.the methods 

ant? means by which certain officers in certain designated 

counties shall be selected and compensated; declaring certain 

acts, contained in Section 4, to be unlawful; prescribing 

a penalty for the violation of the provisions of Section 4 of 

this Act; providing a saving clause; repealing all laws or 

parts of laws in conflict, and declaring an emergency.rf 

Sections 4 and 5 of Senate Bill No. 262, supra, read as follows: 

"Sec. 4. (a) In said counties in this state having a 

tion of more than one hundred forty thousand (140,000 P 

opulaand 

less than two hundred twenty thousand (220,000) inhabitants 

according to the last preceding or any future Federal Census, 

where the Federal Government has authorized the construction 

of large synthetic rubber plants in addition to vast ship 

building enterprises, additional duties have been placed upon 

county officers of such counties due to such construction, 

necessitating and making it economically necessary that there 

be a central purchasing agency for such counties, and therefore a majority of a board composed of the Judges of the 

District Courts and the County Judge shall appoint a County 

Purchasing Agent. The County Purchasing Agent shall hold 

office for a term of two (2) years unless removed for cause. 

He shall execute a bond in the sum of Ten Thousand ($lO,OOO.OO) 

Dollars, payable to said county, for the faithful performance 

of his duties. He shall receive an annual salary,of not less 

than Three Thousand ('3,OOO.OO) Dollars nor more than Fortytwo hundred ($42OO.OO ? D,ollars, payable in equal monthly installments out of the County General Fund by warrant drawn on 

the County Treasurer by, the County Auditor, Said Purchasing 

Agent may have such help, equipment, supplies and traveling 

expenses, with the approval of a majority of said Board of 

Judges, as they may deem advisable, the amount of expenses to 

he approved by a majority of said Board and paid out of the 

County General Fund by warrant drawn on the County Treasurer 

by the County Auditor. 

"(b) All equipment, materials, and supplies, together ~with the 

rep.irs of same, required, used or to be paid for out of any 

County Fund, shall be purchased by the County Purchasing 

Agent, upon written specifications and upon requisitions 

submitted by the county official or department requiring same. 

So far as practicable, such purchases for any office or department shall be in amounts calculated to be adequate for one 

year's needs. 'Where the total consideration on any contract 

is likely to be in excess of One Hundred Fifty ($.fjO.OO) 

Dollars, purchases shall be made on the basis of the lowest and 

best bid, ilith the right to reject any or all bids, and a 

sufficient bidder's bond may be requi,red. A complete record 
Iionorable~Shelby K. Long; page 3 O-5326 

of bids and purchase contracts awarded shall be kept on file 

for not less than ten (10) years. In making such purchases 

the County Purchasing Agent shall contract in the name of the 

county. 

"(c) When delivery is made on any purchase or repair dark, the 

County Purchasing Agent shall secure from the county officer 

or department head receiving the same a receiving memorandum 

in triplicate, certifying that the equipment, materials, supplies, or repairs have been receiged in good order and according to specifications. Such receiving memorandum shall be 

attached to the respective invoice, rendered in triplicate, 

when such invoice is approved by the County Purchasing Agent. 

A copy of each of the receiving memorandum and the approved 

invoice shall be forwarded to the County Auditor, and a copy 

each shall be kept on file in the office of the County Purchasing Agent for not less than ten (10) years. 

R(d) The County Purchasing Agent shall prepare and keep a 

perpetual inventory of all property of the county for each 

department and office. A copy of such inventory as of July 

1st of each year shall be furnished the Commissioners Court 

and the County Auditory not later than the following July 20th. 

It shall be the duty of the County Purchasing Agent to-transfer equipment, materials, and supplies from one department or 

office to another in the interest of efficiency and economy. 

"(e) All purchases made by such Agent shall be paid for by 

warrants drawn by the County Auditor on the County Treasurer 

as now provided by law. 

v(f) It shall bn unlawful for any.person to make any purchases 

of equipment, mgterials, suppliesA~~,'tre~~~r~of~~r~~~ts",~~il 

other than the County Purchasing 

be approved by the County Auditor ?n p;yment for any purchase 

not made by such Agent. 

"(g) Any person violating any of the provisions of Section 4 

of this Act shall be deemed uilty of a misdemeanor, and upon 

conviction thereof shall be s ined not less !than Two Hundred 

(4b200.00) Dollars nor more than One Thousand ($l;OOO.OO) 

Dollars, or imprisoned in the county jail of said c 

not less than thirty (30) days nor more than one (1 '3 

unty for 

year, 

or by both such fine and imprisonment. 

"Sec. 5. If any part of this Act shall be held to be unconstitutional, then all the Act shall be unconstitutional, The 

Legislature hereby declares that it would not have passed the 

remaining parts of this Act if it had known that such part 

or parts would be declared unconstitutional." 
Honorable Shelby K. Long, page 4 O-53.26 

It is clear that the law 

of the counties to which 

the powers and duties of 

under consideration regulates the affairs 

it applies, 

officers. 

creates offices, and prescribes 

a special and local law in violation 

Is it a general law, or is it 

III, Section 56? 

of the provisions of Article 

Article III, Section 56 of the State Constitution provides as 

follows: 

"The L,egislature shall not, except as otherwise provided in 

this Constitution , pass any local or special law, authorizing: 

" . . . . . 

"Regulating the affairs of counties, cities, towns, wards or 

school districts; 

" . . . . . 

"Creating offices, or prescribing the 

officers, in counties, cities, towns, 

districts; 

" 1, . . . . . 

powers and duties of 

election or school 

Generally speaking it is stated in our opinion No. O-2221: 

"A law which applies only to a part of a natural class of persons or things must predicate its inclusion of the part and 

exclusion of the balance upon characteristics peculiar to the 

part, which considering the objects and purposes of the law, 

afford reasonable ground for restricting the application of 

the law to the part. Classification must be reasonable and 

natural, not arhitrary and capricious. Arbitrary designation 

is not classification.~ The vice of local or special laws is 

that they rest on arbitrary designation; that they do not 

embrace and affect all of the class to Irhich they are naturally 

related. 25 R.C.L. pp. 8'15-816; 12 Am. Jur. p. 146; Smith v. 

State (Ct. Cr. App.), 49 S.>d. (2d) 739; Randolph V. State, 

(Ct. Cr. A?p.), 36 S.;r. (2d) 484; Clark v. Finley, 93 Tex. 

171, 54 S&i. 343; City of Ft. 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. 

"Because population as a basis for classification has been 

sustained by the courts in respect to legislation on certain 

subjects, it has been assumed, erroneously, that pupulation 

brackets will serve in all instances to avoid the condemnation 

of the Constitution. This mistaken assumption proceeds from 

a failure to note that ~population has been sustained as a 

basis for classification only in those instances where it bore 
. ” 

Honorable Shelby K. Longi Page 5 Q-53 26 

a reasonable relation to the objects and purposes of the law 

and was founded upon rational difference in the necessities or 

conditions of the 

E 

roups subjected to different laws, Where 

it has been determ ned that, considering the objects and purposes of the law, differences in population afford no .rational basis for discriminating between Proups of the same natural 

class, classification on the basis 02 population has been 

termed arbitrary selection, and the law has been held to be 

special and local. Randolph v. State, supra. 

Where population might have served as a rational basis for 

classification , if the object and purpose of the law had been 

to increase the compensation of county officers, since the 

purpose of the particular law was to lowersuch compensation 

the classification was held to be inverted and the law special 

and local. Bexar County vb Tynan, supra. 

One of the objects and purpoaes of the law under consideration is 

to permit counties to appoint a purchasing agent, A natural class, 

of course, includes all counties in the state. This law extends 

such power only to those counties having a population, according 

to the last preceding Federal Census or any future Federal Census, 

of not inore .thPn-ll+Q,CCQ gr riiore - 

. 

'W 

than 220,000 inhabitants, $ 

.9 

he only county meeting'these requirements, 

at the time of the passage of the law, was Jefferson County. 

As heretofore stated, Section 4 of the law under consideration applies only to counties having a population of 140,000 inhabitants 

to 220,000 inhabitants according to the 1940 Federal Census. Therefore! Jefferson County comes within the prov,$sions of the above 

mentloned,section, Oounties oft lesser or greater population 

are not premitted to exercise the power of appointing a purchasing 

agent by said Senate Bill No. 262‘ We have failed to find any 

general statute authorizing oounties to employ or appoint purchasing agents. It is our opinion that the classification is a mere 

designation which is no classification at all, but, on the contrary, 

is inverted and discriminatory as a law considered by the Supreme 

Court in the Tynan :oase, supra 

v. El.Paso County, 

(Also see the case of Miller et al., 

150 S.N. (2j 1000)‘ 

Section 4 of the act creates the office of purchasing agent and 

prescribes the powers and duties of the officer holding such office, 

If population affords a ground for creating the office of County 

Purchasing Agent, it must be upon one of two theories: 

(1) The smalle'r the population of the County, the greater the need 

of such an office, 
Honorable Shelby E. Long, page 6 O-5326 

(2) The greater~the population of the County,, the greater the need 

of such an off,ice. 

The bracket is from 140,000 to 220,000. Upon the first theory the 

law is arbitrary and discriminatory because itexcludes counties 

below 140,000, which would have a greater need than the counties 

in the bracket. Upon the second theory the law is likewise arbitrary and discriminatory in that it does not embrace counties having a population above 220,000~,~ which counties would have a greater 

need for a purchasing agent than counties within the bracket. 

In view of the foregoing authorities it ia our opinion that Section 

4.60f the act clearly violates the provisions of Article III, Section 

of the State Constitution and is therefore unconstitutional and 

void. It is our further opinion that in view of Section 5 of said 

Act, the entire Act is of no force and effect, aa'the Legislature 

declares in effect that it would not have passed the remaining parts 

of the Act had it known any part or parts thereof would be declared 

unconstitutional. 

We enclose herewith a copy of our opinion No. O-2221. 

Yours very truly 

ATTORNEY GENERAL ~OF TEXAS 

AW:mp;ml 

By (s) Ardell Williams 

Assistant 

APPROVED Jun. 9, 1943 

(s) Grover Sellers 

(This Opinion Considered and 

approved in Limited Conference) 

First Assistant Attorney General 

APPROVED 

Opinion Committee 

By B.W.B. Chairman