Gerald C. Mann AUSTXN 21. TXXAS 

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iionorable T. 1.5. Trimble, First Assistant 

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/J /&-+ 

State Superintendent of Publio Instruotion 

Austin, Texas YeI? 

Dear Sir: Opinion No. O-3123 

Be: Effect of county passing out of 

population bracket olassification ., " by subsequent Federal 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, requesting an opinion by 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 having a population of not more than 2,850 acoording to the last preceding Federal Census. . . .* 

"This Aot applies to Gaines County. Following the provisions of the above mentioned statute, 

a county-wide equalization tax has been voted 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 above mentioned statute will continue in force, even though 

the Federal Census of 104.0 shows a change in 

population, and Gaines County does not come within 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 in Vernon'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 not more than 

twney-eight hundred 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 and may exeroi::e the taxing power 

conferred on sohool districts by Article 7, Seotion 3, of the Constitution, to the extent here- 
-~ 

IIon. 

. 

‘a 

T. M. Trimble, Page 2 

inafter provided, but such taxing power shall 

not be exercised until andunless authorized by 

a majority of the qualified tax-paying voters 

residing therein at an election to be held for 

such purpose as hereinafter provided." 

Following sections provide ingreater detail for 

the levy, collection and use of the tax, and the duties and 

authority conferred upon 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 classification end not as a special aot, for if this 

were not true, the Act would be unoonstitutional and could 

not serve as an authorization for any purpose. Article III 

Section 56, Constitution of Texas; Brownfield v. 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 preoeding Federol Census must necessarily be construed to refer 

to any subsequent Fader:41 Census and not-limited to the 

1930 Census or the census in effect when the Act was passed. 

Authorities supra. Aside from this consideration, this 

construction would seem to be the plain meaning of the language employed. See also Article 23, Section 8, R. C. S. 

1925, which reads as follov~s: 

"The following meaning shall be given to each 

of the following words, unless a different meaning is apparent from the context: 

‘1. . . 

"88. 'Preoeding Federal census' shall be 

construed to mean the United States Census of 

date preceding the action in question and eaoh 

subsequent census as it oo~urs.~ 

The courts in giving this construction to the 

phrase and in passing upon the constitutionality of similar sots have consistently pointed out the necessity of 

so drawing the classification that others may become subject to the act when they acquire the same characteristics 

or qualifications upon which the classification is based. 

It would seem that the converse would necessarily follow, 

and if those who were once subject to the act should no 

longer possess the elements of the olassification they they 

are no longer subjeot to the terms of the act. 

In Bexar County v. Tynan, supra, the court said: 

"The act does provide that it is to apply 

only to counties having more 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 census discloses that Bexar 

County is the only county which 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 consideration Article 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 'all counties . . . containing a valuation of Seventy-five Mllion Dollars (~75,000,000.00) 

or more, are berebg created' then anti there creates 

suah counties which at t;ie time the bill was enaoted had the $75,000,000. valuation, and which 

also had the required population accoraing to the 

preceding census. If this construction is plaoed 

upon the Act, 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 complied with in its enactment." t undersoaring ours) 

The court refused to give this construction and 

it is apparent that the same language in S. B. No. 442 

oannot be given the effect of establishing a county equolization district in Gaines County, which had the requisite 

population and valuation when 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 court had. the following to say with referenos 

to a population bracket classification according to the 

"latest United States oensu8.'t 

"At the time of the enactment of the statute last mentioned, the latest United 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 that M&&an County haa a population 

or 98,682. Hence the countg, by virtue of the 

increased poF;i;liition, i:iad oassed beyond t:le OPeration 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 PlcLennan County had by 

virtue of incrensed boaulution ns: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. to 
T. 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 ~population of 

Gaines County,exceeded the 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 by virtue: of the provisions 

of said Aot. 

This opinion is not to be construed as an oplnion upon the constitutionality of 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