. 

THEATTORNEYGENERAL 

OF TEXAS 

March 13, 1961 

Honorable Joe N. Chapman 

Chairman, Counties Committee 

House of Representatives 

Austin, Texas 

Opinion No. !.iW-1014 

Re: 

Dear Mr. Chapman: 

Constitutionality of House 

Bill 248 of the 57th Legislature, which would create 

a civil service system of 

selection, tenure and status 

of all employees of counties 

having a population of not 

less than 314,000 and not 

more than 315,000 inhabitants 

according to the last preceding federal census. 

You have requested an opinion on the constitutionality 

of House Bill 248 of the 57th Legislature. 

Sections 1 and 2 of House Bill 248 provide as follows: 

"Section 1. From and after the effective 

date of this Act, the Commissioners1 Court of 

all counties in this State having a population 

of not less than Three Hundred and Fourteen 

Thousand (314,000) and not more than Three Hundred and Fifteen Thousand (315,000) according 

to the last preceding federal census is authorized to establish a civil service system of 

selection, tenure and status, applicable to all 

employees of such counties with the exception of 

elected officials, members of boards and commissions and of the judiciary. 

"Section 2. Such system may also include 

uniform provisions in respect to classification 

of position and salary ranges, payroll certification, attendance, vacation, sick leave, 
Honorable Joe N. Chapman, page 2 (WW-1014) 

competitive examinations, hours of work, 

tours of duty or assignments according to 

earned seniority, employee grievance procedures, disciplinary actions, layoffs and 

separations for cause subject to approval 

of a civil service commission and all other 

appropriate provisions relating to rates of 

pay, wages, hours of work, and other working conditions." 

Section 3 is the severability clause and Section 4 declares an emergency. 

There is only one county within the State which comes 

within the enumerated bracket of the Bill. According to 

the 1960 federal census report, El Paso County has a population of 314,070 inhabitants. 

Section 56 of Article III of the Constitution of Texas 

provides in part as follows: 

"The Legislature shall not, except as 

otherwise provided in this Constitution, 

pass any local or special law, authorizing: 

II 

. . . 

"Regulating the affairs of counties, 

cities, towns, wards or school districts; . , ." 

There are four counties with a greater population than 

the range from 314,000 to 315,000 inhabitants and there are 

249 counties with a lesser population than the range from 

314,000 to 315,000 inhabitants. 

It is apparent that House Bill 248 is regulating the 

affairs of counties within the meaning of Section 56 of 

Article III of the Constitution of Texas. Bexar County v. 

Tvnan. 128 Tex. 221. 97 S.W.2d 467 (1916) and 

El&o County; 136-T&. 370, 150'S:W:2d'lOOO ~?$@?In 

Bexar Cou .nty v. Tynan, supra, the Supreme Court stated: 

the Legislature may classify 

counties'upon a basis of population for the 
- . 

Honorable Joe N. Chapman, page 3 (WW-1014) 

purpose of fixing compensation of county and 

precinct officers, yet in doing so the classification must be basedupon, 

and must not be arbitrary or a device to give 

what is in substance a local or special law the 

form of a general law. . , . 

"'The rule is that a classification cannot 

be adopted arbitrarily upon a ground which has 

nofoundation in difference of situation or clrcumstances of the municipalities placed in the 

different classes. There must be some reasonable relation between the situation of municipalities classified and the purposes and objects 

to be attained. There must be something . . . 

which in some reasonable degree accounts for the 

division into classes.' 

I, 

. . . 

"In the case of Clark v. Finley, 93 Tex. 

171, 54 S.W. 343, this Court recognized that substantial differences In populations of counties 

could be made a basis of legislation fixing compensation of officers, on the theory, as the 

court clearly recognized, that the work devolving 

upon an officer was in some degree proportionate 

to the population of the county. This has frequently been recognized by courts as creating a 

sufficient distinction to justify a larger compensation for county officers in counties having a 

large population as compared with compensation to 

like officers in counties having a small vooulatlon. 

In view of the foregoing authorities, it is our opinion 

that House Bill 248 of the 57th Legislature Is in violation 
c - 

Honorable Joe N. Chapman, page 4 (WW-1014) 

of Section 56 of Article III of the Constitution prohibiting 

the enactment of local or special laws regulating the affairs 

of counties. 

SUMMARY 

House Bill 248 of the 57th Legislature authorizing the establishment of a civil service system of selection, tenure and status for all 

employees of counties having a population of 

not less than 314,000 and not more than 315,000 

Inhabitants according to the last preceding 

federal census is unconstitutional and void, 

being in violation of Section 56 of Article III 

of the Constitution of Texas, prohibiting the 

enactment of local or special laws regulating 

the affairs of counties. 

Yours very truly, 

WILL WILSON 

Attorney General of Texas 

JR:ms:mm 

APPROVED: 

OPINION COMMITTEE 

W. V. Geppert, Chairman 

William H. Pool, Jr. 

Elmer McVey 

Joe B. McMaster 

Linward Shivers 

Assistant 

REVIEWED FOR THE ATTORNEY GENERAL 

BY: Morgan Nesbitt