## THE AITOECNEY GENERAL OF -XAS

May 25, 1971
Honorable Bill Clayton Opinion No. M-871 Chairman, Committee on Counties House ofRepresentatives Re: Constitutionality of S. B. P. 0. Box 120, Capitol Station 669, 62nd Leg., R.S., 1971, Austin, Texas 78711 relating to thepower of the Commissioners Courts in certain counties to restrict thekeeping of hogs or hog pens in certain circumstances. Dear Mr. Clayton: You have requested our opinion on the constitutionality of Senate Bill 669 of the 62nd Legislature, R.S., 1971,which provides: "Section 1. The Commissioners Court of a county having apopulation ofmore than 1,000,000 and not more than 1,500,000, by order may prohibit thekeeping ofhogs orhog pens within 500 feet of any residence in the county which isnotwithin the jurisdiction of an incorporated city or town. "Sec. 2. A person who violates an order of the Commissioners Court under thisAct, after having actual notice of the adoption of the order, isguilty of amisdemeanor and upon conviction ispunishable by a fine of not less than $10 nor more than $200; and a separate offense is committed each day aviolation continues.

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Honorable Bill Clayton, page 2 (M-871)
Article III, Section 1,of the Constitution of Texas, provides: "The legislative power of this State shall be vested in a Senate and House of Representatives, which together shall be styled 'TheLegislature of the State of Texas'." Section 56ofArticle III of the Constitution of Texas provides, inpart:

"TheLegislature shall not, except as otherwise provided in this Constitution, pass any local or special law, authorizing: ,I

... "Regulating the affairs of counties, cities, towns, wards or school districts: 4,

. . . "And in all other cases where ageneral law canbe made applicable, no local or special law shall be enacted: ...(I Section 23 ofArticle XVI of the Constitution ofTexas provides: "TheLeqislature may pass laws for the requlation of live stock and the protection of stock raisers in the stock raisins portion of the State, and exempt from the oreration of such laws other portions, sections, or counties: and shall have power topass general and special laws for the inspection of cattle, stock andhides and for the regulation ofbrands; provided, that any local law thus passed shall be submitted to the freeholders of the section tobe affected thereby, and approved by them, before it shall go into effect." (Emphasis added.)

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Honorable Bill Clayton, page 3 (M-871)
Stock lawspassed in compliance with Section 23 of Article XVI are exempt from theprovisions of Section 56 of Article III. Therefore, pursuant to theprovisions of Section 23 ofArticle XVI, the Legislature is authorized topass a law regulating livestock making itapplicable to the entire State or itmight exempt any county from the operation of such law. Armstronq v. Traylor, 30 S.W. 440, (Tex.Sup. 1895); Mulkey v. State, 201 S.W. 991 (Tex.Crim. 1918); Ex Parte Thompkins, 83 S.W. 379 (Tex.Crim. 1904); Ex Parte Winslow, 164 S.W.2d 682 (Tex.Crim. 1942). Senate Bill 669 neither makes the law applicable to the entire State nor makes the law applicable to any particular county. Rather, it delegates such legislative power to the commissioners court of a county having apopulation of more than 1,000,000 and notmore than 1,500,000, inviolation of Section 1 ofArticle III, Texas Constitution. If a stock lawgoverned by the last portion of Section 23 of Article XVI is enacted, such local lawmust be submitted and approved by avote of the freeholders of the locality affected. Armstronq v. Travlor, supra. Furthermore, prohibiting thekeeping ofhogs orhog pens within a certain distance of any residence ina county outside the corporate limits of a city or town isnot a law regulating livestock or theprotection of stock raisers nor is ita law providing for the inspection of cattle, stock andhides with a regulation or for the regulation ofbrands, within contemplation of Section 23 ofArticle XVI; therefore, Section 56 of Article III relating to local and special laws applies to this Bill. We cannot perceive any reasonable basis forprohibiting thekeeping ofhogs orhog pens within 500 feet of any residence which isnotwithin the jurisdiction of an incorporated city or town andmaking such penal provisions applicable only to areas of a county having apopulation ofmore than l,OOO,OOO and not more than 1,500,OOO and excluding all other areas in the State.

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Honcrable Bill Clayton, page 4 (M-871)
Therefore, it is our opinion that Senate Bill stitutes a local or special law inviolation of the 669 conabove quoted provisions of Section 56ofArticle III. Miller v. El Paso County, 136Tex. 370, 150 S.W.2d 1000 (1941);Bexar County v. Tvnan, 128 Tex. 223, 97 S.W.2d 467 (1936). You are therefore advised that Senate Bill 669 of the 62nd Legislature, R.S., 1971, isunconstitutional. SUMMARY Senate Bill 669 of the 62nd Legislature, R-S., 1971, authorizing the commissioners court of a county having apopulation of more than l,OOO,OOO and not more than 1,500,000, toprohibit thekeeping ofhogs orhog pens within 500 feet of any residence within the county which is not within the jurisdiction of an incorporated city or town andmaking aviolation of such order amisdemeanor isunconstitutional. Sections 1 and 56,Article III, Texas Constitution. Ve

ey General ofTexas Prepared by John Reeves Assistant Attorney General APPROVED: OPINION COMMITTEE Kerns Taylor, Chairman W. E.Allen, Co-Chairman Pat Bailey Lonny Zwiener Bob Lattimore Max Hamilton

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Honorable Bill Clayton, page 5

MEADE F. GRIFFIN Staff Legal Assistant ALFRED WALKER Executive Assistant NOLA WHITE First Assistant (M-871)

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