c- - 

R-488 

THEATTOEWEYGENERAL 

BFTEXAS 

PRICE DANIEL 

ATTORNEY GENERAL 

June 5, 1947 

Hon. H. L. Roberts Opinion No. O-235 

County Auditor 

Hutchinson County 

Stinnett, Texas - 

Dear Sir: 

Re: Constitutionality of 

an Act which only applies to counties 

within population 

brackets shown by 

the census of 1940. 

We refer to your letter of May 12, 1947, in 

which you submit the following: 

"Our Commissioners' Court desires a 

ruling by your Department as to the constitutionality of that part of Chapter 

50, H.B. No. 51, amending Article 5142, 

passed by the present Legislature, which 

reads as follows: 

'"'Provided further that in counties 

having a population of not less than Nih+ 

teen Thousand (19,000) and not more than 

fifty thousand (50,000) as shown by the 

1940 Federal Census and whi.ch has an assessed valuation of taxable property of not 

less than Twenty-five Milli.on Dollars (#25,- 

OOO,OOO), one juvenile officer may be appointed by the Commissioner's' Court, whose 

salar may not exceed Three Hundred Dollars 

(33OOV P er month and expenses not to exceed 

Six Hundred Dollars ($600) per year.' 

"Hutchinson County has a population of 

19,069 as shown by the 1940 Federal Census, 

and a Tax Roll valuation of $29,394, 725.00 

as shown by the 1946 tax roll." (Emphasis 

added) 

The language "having a population of not less 

than nineteen thousand (19.000) and not more than fiftv 

thousand (50,000), as shown by.the 1940 Federal census; 

and which has an assessed valuation of taxable property 

of not less than Twenty-five Million Dollars ($25,OOO,- 

OOC)," definitely confines the application of the Act 

,to ,the counties which met those requirements at the ef- 
-- 

Hon. II. L. Roberts, Page 2 

feotive date of the Act. No other county can ever 

come into the same class because of the tie to the 

1940 census and to the present tax rolls of the 

counties now in the class. The provisions of the 

Act only apply to the oounties of Bell, Brazoria, 

Duval, Ellis, Fort Bend, Gray, Hutchinson,,Jim 

Wells, Montgomery, Tom Green, Van Zandt, Victoria, 

Wharton and Wood. 

Section 56 of Article III of the State Constitution reads in part: 

"The Legislature shall not, except as 

otherwise provided in this Constitution, 

pass any local or speoial.law, authorizing... 

"Regulating the affairs of counties, 

oities, towns, wards or school districts." 

The Supreme Court of Texas held in the case 

Of Altgelt v. Gutzeit, 109 Tex..l23, 201 S.W. 400, 

tha t an Act fixing the salaries of County Commissioners 

was an Act "regulating the affairs of counties" within 

the purview of the Constitution, and that an attempt to 

do so by local or special law was void. 

In the case of,City of Fort ,Worth v. Bobbitt, 

36 S.W. 2d, 470, the Court had the question of the 

validity of an Act which applied to cities having a 

population of not.less than 106,000 inhabitants and 

not more than 110,000 inhabitants according to the 

census of 1920. The Court said: 

"The Constitution in plain and simple 

,. terms prohibits the enactment of any local 

or special law regulating the affairs of .' 

cities, or changing their charters. It cannot be denied that this law does have ref-' 

erenoe to regulating the affairs of cities. 

If it is a local or special law, it is 

therefore.unconstitutionsl and void... 

"If we should hold this law to be constitutional when it describes and confines 

its application to one city, we would in 

effect be holding the constitutional provision under discussion an idle and vain 

thing, and can be evaded by a subterfuge. 

We therefore hold that the Act in question 

is unoonstitutional and void." 
Hon. H. L. Roberts, Page 3 

The Court then quotes, from Lewis' Sutherland 

Statutory Construction'(26 ed) p. 397, et seq., as follows: 

"A classifioation based upon existing 

or past conditions or facts and which would 

exclude the persons, places, things or objeots,thereafter coming into the sit;;",;o; 

or condition, isspecial and void. 

classification of cities or counties based 

upon existing population or upon the population shown by specific census is of this 

character." 

The Texas Court of Criminal Appeals quoted extensively from the City of Fort Worth case and followed 

its conclusions in Smith v. State, 49 S.W. 2d 739. 

The case of City of Fort Worth v. 'Bobbitt, 

Attorney General, supra, should not be confused with 

City of Fort Worth v. Bobbitt, Attorney General, 41 

S.X. '2d 228. 'In the latter case the Court held a statute constitutional which applied to "cities in the 

State of Texas, having a population of more than 100,000 

inhabitants according to the last receding United States 

census." (Emphasis added). -<ording, *'last preoedingn census, allows other cities or counties tocome 

within the situation or condition in the future, and. 

when based upon otherwise reasonable olassifioations, 

such laws have been upheld. Such cases only emphasize 

the invalidity of a special a,ot limited to the 1940. 

census and 1947 valuations. 

We are of the opinion that the provision of 

E. B. No. 51 passed by the 50th Legislature inquired 

about in your letter is a local or special law and unconstitutional. 

That part of H. B. No. 51, Acts of the 

50th Legislature amending Article 5142,R.C.S. 

which fixes salaries of juvenile officers 

and which definitely confines its application 

to counties between a maximum and a minimum 

population according to the census of 1940; 

or which only applies to counties having a 

taxable valuation of more than a stated 

amount at the effective date of the Act, is 
Hon. H. L. Roberts, Page 4 

a local or special law regulating the affairs of counties and is unconstitutional. 

Const. Art. III, Sec. 56; Altgelt v. Gutzeit, 109 Tex. 123, 201 S.W. 400; City ol 

Fort Worth v. Bobbltt, 36 S.W. 26 470. 

Very truly yours, 

ATTORNEY GENERAL OF TEXAS 

BY 

T. Williams 

Assistant 

API'ROVED JUNE 5, 1947 

,’ j!2lddld 

ATTORNEY GENER&L 

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