THE AITOECNEY GENERAL 

OF -XAS 

May 25, 1971 

Honorable Bill Clayton Opinion No. M-871 

Chairman, Committee on Counties 

House of Representatives Re: Constitutionality of S. B. 

P. 0. Box 120, Capitol Station 669, 62nd Leg., R.S., 1971, 

Austin, Texas 78711 relating to the power of 

the Commissioners Courts 

in certain counties to restrict the keeping 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 a population of more than 1,000,000 

and not more than 1,500,000, by order may prohibit 

the keeping of hogs or hog pens within 500 feet of 

any residence in the county which is not within 

the jurisdiction of an incorporated city or town. 

"Sec. 2. A person who violates an order of 

the Commissioners Court under this Act, after having 

actual notice of the adoption of the order, is guilty 

of a misdemeanor and upon conviction is punishable 

by a fine of not less than $10 nor more than $200; 

and a separate offense is committed each day a violation 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 'The Legislature of 

the State of Texas'." 

Section 56 of Article III of the Constitution of Texas 

provides, in part: 

"The Legislature 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 a general law 

can be made applicable, no local or special law 

shall be enacted: . ..(I 

Section 23 of Article XVI of the Constitution of Texas 

provides: 

"The Leqislature 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 to pass general and special laws for the 

inspection of cattle, stock and hides and for the 

regulation of brands; provided, that any local law 

thus passed shall be submitted to the freeholders 

of the section to be 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 laws passed in compliance with Section 23 of 

Article XVI are exempt from the provisions of Section 56 of 

Article III. Therefore, pursuant to the provisions of Section 23 of Article XVI, the Legislature is authorized to pass 

a law regulating livestock making it applicable to the entire 

State or it might 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 a population of more than 

1,000,000 and not more than 1,500,000, in violation of Section 1 

of Article III, Texas Constitution. 

If a stock law governed by the last portion of Section 23 

of Article XVI is enacted, such local law must be submitted and 

approved by a vote of the freeholders of the locality affected. 

Armstronq v. Travlor, supra. 

Furthermore, prohibiting the keeping of hogs or hog pens 

within a certain distance of any residence in a county outside 

the corporate limits of a city or town is not a law regulating 

livestock or the protection of stock raisers nor is it a law 

providing for the inspection of cattle, stock and hides with a 

regulation or for the regulation of brands, within contemplation of Section 23 of Article XVI; therefore, Section 56 of 

Article III relating to local and special laws applies to this 

Bill. We cannot perceive any reasonable basis for prohibiting 

the keeping of hogs or hog pens within 500 feet of any residence 

which is not within the jurisdiction of an incorporated city or 

town and making such penal provisions applicable only to areas 

of a county having a population of more 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 in violation of the 

669 conabove quoted 

provisions of Section 56 of Article III. Miller v. El Paso County, 

136 Tex. 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, is unconstitutional. 

SUMMARY 

Senate Bill 669 of the 62nd Legislature, 

R-S., 1971, authorizing the commissioners court 

of a county having a population of more than 

l,OOO,OOO and not more than 1,500,000, to prohibit the keeping of hogs or hog pens within 500 

feet of any residence within the county which is 

not within the jurisdiction of an incorporated 

city or town and making a violation of such order 

a misdemeanor is unconstitutional. Sections 1 

and 56, Article III, Texas Constitution. 

Ve 

ey General of Texas 

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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