Gerald C. Mann AUSTXN 21. TXXAS
A/ ,L,AdL"g/ .4.l¶T,,<x*i,-

d~,,ixI:~R.Yr. iionorable

T. 1.5. Trimble,First Assistant d? /J /&-+ State Superintendent of Publio Instruotion Austin, Texas YeI?
Dear Sir: OpinionNo. O-3123 Be: Effect of county passing out of population bracket olassification
.," by subsequentFederal Census, and

~.applioation

to,Gaines County under S. 53. No. 442, Acts 46th Leg. We are in receipt of your letter of February 4, 194l, requestingan opinionby this department as follows: .L **'S. B.No. 442 of the Forty-sixth Legislature creates county-wide equalization school districts a& for tax purposas. All aounties havinga population of notmore than 2,850 acoording to the last preceding Federal Census.
. . .* "ThisAot applies to Gaines County. Following the provisions of the above mentioned statute, a county-wideequalizationtax has beenvoted in Gaines County. Since that time the County has gone out of the population bracket set forth in 9. B.No. 442. It is the desire of the people of Gaines County to know if the tax which was voted under the provisions of the abovementioned statutewill continue in force, even though the Federal Census of 104.0shows a change in population, and Gaines Countydoes not comewithin the population bracket set up in this A0t.n The Act to which you refer, S.B. No. 442, Acts Forty-sixth Legislature,Regular Session, Special Laws, p. 673, Ch. 34, appears inVernon's Texas Civil Statutes, Pocket Part, as Article 2744e-2. We quote only the first section of the Act:

"Section 1. All counties in this State having a population of not less than twenty-seven hundred seventy-five (2,775)and notmore than twney-eighthundred fifty (2,850),according to the last preceding: Federal Census, and containing a valuation of seven Killion ($7,000,000.00) Dollars or more, are hereby created into Countywide Equalization cchool Districts for tax purposes, and each such county sllall have the county unit system of education to the extent specified in this Act andmay exeroi::e the taxing power conferred on sohool districts byArticle 7, Seotion 3, of the Constitution, to the extent here-**-~**
**IIon.**

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**‘ a**  T. M. Trimble, Page 2

inafterprovided, but such taxing power shall not be exercised until andunless authorized by amajority of the qualified tax-payingvoters residing therein at an election to be held for such purpose as hereinafter provided." Following sectionsprovide ingreaterdetail for the levy, collection and use of the tax, and the duties and authority conferredupon various officers "in all suoh counties," or 'Iof

any county subject to the provisions of this Act."
It is clear that the Act is designed as a general law by classificationend not as a special aot, for if this were not true, the Act would be unoonstitutionaland could not serve as an authorization for any purpose. Article III Section 56, Constitution of Texas; Brownfieldv. Tongate, (T.C.A..19371 109 S. W. (2d) 352; City of Fort Worth v. Bobbitt (corn.

App. 1931) 36 9. N. (2d)470; Bexar County v. Tynan, (T.C. A.,19341 69 S. W
. (2d) 193; I'iatson v. Sabine Royalty Corporation, (T.C. A. 1936) 120 S. W. (2d) 938. In order to have the semblanoe of a general act the last preoedingFederol Censusmust necessarily be construed to refer to any subsequentFader:41Census and not-limited to the 1930 Census or the census in effect when theAct was passed. Authorities supra. Aside from this consideration,this constructionwould seem to be the plainmeaning of the language employed. See also Article 23, Section 8, R. C. S. 1925, which reads as follov~s:

"The followingmeaning shall be given to each of the followingwords, unless a differentmeaning is apparent from the context: ‘1.

. . "88. 'PreoedingFederal census' shall be construed to mean theUnited States Census of date preceding the action in question and eaoh subsequent censusas it oo~urs.~ The courts in giving this constructionto the phrase and in passing upon the constitutionalityof similar sots have consistentlypointed out the necessity of so drawing the classification that othersmay become subject to the act when they acquire the same characteristics or qualificationsuponwhich the classification is based. It would seem that the converse would necessarily follow, and if those who were once subject to the act shouldno longerpossess the elements of the olassification they they are no longer subjeot to the terms of the act.

In Bexar Countyv. Tynan, supra, the court said: "The act does provide that it is to apply only to countieshavingmore than 290,000 and less than 310,000 inhabitants,accordin:;to the last preceding federal oensus. The last preceding federal census is the census of 1930. Reference to this censusdiscloses that Bexar County is the only countywhich falls within this class. Therefore Bexar County is the only.* ’ Hon. T. M. Trimble, Page 3 oountg affected by the bill, at least until another census is taken,which will be in 1940.” fn Watson v. Sabine Royalty Corporatfon, (C.C.A. 1938, writ refused) 120 S. 5. (23) 938, the court had before It for considerationArticle 274&e,Vernon's Texas Civil Statutes,whioh is practically identical in its language with S. B. No. 442, except that the population bracket and vqluation is different.The court stated. t ',
.. "Argument is advanoed that the use of the

language 'allcounties

. . . containing a valuation of Seventy-fiveMllion Dollars (~75,000,000.00) or more, are berebg created' then antithere creates suah countieswhich at t;ietime the billwas enaoted had the $75,000,000.valuation, and which also had the required population accoraing to the preceding census. If this construction isplaoed upon theAct, then such would constitute it a local or special law. And if such, the Act would be unconstitutional. because the requirements of Sec. 57, drt. 3, Constitution were not compliedwith in its enactment." tundersoaring ours) The court refused to give this constructionand it is apparent that the same language in S. B. No. 442 oannot be given the effect of establishinga county equolization district in Gaines County,which had the requisite population and valuationwhen the dct was passed, without any reference to subsequent changes in population or valuation.
In Smith v, State, (Tex. Cr. App. 1932) 49 S. W. (26) 739, the courthad.the following to saywith referenos to a population bracket classificationaccording to the "latest United States oensu8.'t

"At the time of the enactment of the statute lastmentioned, the latestUnited States oensus,which was that of 1920, gave McLennan County a population of 82,921. It was the only oounty in the state affected by the provisions of Senate Rill 105. ch. 29. The census of 1930 disolosed thatM&&an County haa a population or 98,682. Hence the countg,by virtue of the increasedpoF;i;liition, i:iad oassed beyond t:leOPeration of Senate Bill 105, ch. 29,

. . ,

”

. . .

,‘ Again, the.effort of the Legislature, by am&&~ Chapter 29, Acts of the Forty-first Legislature, First Called Session,after the census of 1930 disclosed tiiet PlcLennanCountyhad by virtue of incrensed boaulutionns:scd beyond its operation, to ilola XcLennan County within the purview of the act, manifests, under the deoisions, a DU~DOSO. bv a Dretended olassification.toT. M.'Trimblr Page 4 evade the aonstitutlonal inhibition, and, under the guise of such olassifioation, to enact a law designed for MoLennan County alone."
It is our opinion that when the~populationof Gaines County,exceededthe maximum population provided in S. B. No. 442, Aots Forty-sixth Legislature, according to the 1940 Federal Census, it t!lereby **was** excluded from the classification therein provided and passed from under the provisions of the Act and has lost any authority it might have theretofore had byvirtue:of the provisions of saidAot.

This opinion is not to be construed as an oplnion upon the constitutionalityof 5. B. No. 442, Acts Forty-sixth Legislature,Regular Session.
./ Yours very truly
AT!?ORMEYGEERALOFTEXAS

CCC:J.&jrb ., ,,’ :

,I

ATTORNEY GEWRAL OF w By/cl/ Cecil C. Cs&aok Cecil C. Cammack

Asslstant

APPROVED OPINION COHMITTEE BY B%B, Chairman