i%TlXDRNEY ENERAL 

Honorable John Lawhon 

District and County Attorney 

County Courthouse 

Denton, Texas 76201 

Dear Mr. Lawhon: 

Opinion No. M-932 

Re: Construction of H.B. 1754, 

Acts 62nd Leg., R.S. 1971, 

Ch. 583, p. 1927, relating 

to the allowances for traveling expenses of members of 

the commissioners court in 

certain counties. 

You have requested the opinion of this office concerning 

the effective date of House Bill 1754, Acts 62nd Legislature, R.S. 

1971, Ch. 583, page 1927. You have further asked our opinion as 

to whether House Bill 1754 allows the commissioners court to set 

"travel expenses and depreciation" of one or more of the commissioners at a different sum, from that set for the county judge or 

from that set for another commissioner. 

For the reasons which-follow, we hold that House Bill 

1754 is unconstitutional and therefore never became a valid and 

effective law. It Is therefore unnecessary to answer your questions. 

The relevant portions of House Bill 1754 read as 

follows: 

'Section 1. In any county having a populatlon of not less than 73,000 nor more than 75,750 

:ccording to the last preceding federal census, the 

commissioners court may allow each member of the 

commissioners court not more than $150 per month 

for traveling expenses and depreciation on his 

automobile while on official business within the 

county. Each member of the commissioners court 

shall pay all expenses in the operation of his 

automobile and keep It in repair free of any other 

charge to the county. 

'Sec. 2. As used in this Act, 'members of 

the commissioners court' means the county commissioners 

-4544- 
Hon. John Lawhon, page 2 (M-932) 

and the county judge. 

'Sec. 3. This Act applies only to counties 

not furnishing an automobile or truck or by other 

means providing for the traveling expenses of 

members of their commissioners courts while on 

official business within the county. 

"Sec. 4. In any county in this state having 

a population of not less than 11,870 and not more 

than 12,000, according to the last preceding federal census, the commissioners court is hereby 

authorized to allow each member of the court the 

sum of not exceeding $125 per month for traveling 

expenses and depreciation on his automobile while 

on official business within the county. Each 

member of the court shall pay all expenses In 

the operation of such automobile and keep the 

automobile in repair free of any other charge 

to the county. 

'Sec. 5. As used in this Act, 'the last 

preceding federal census' means the 1970 census 

or any future decennial federal census. This is 

despite any legislation that has been or may be 

enacted during any session of the 62nd Legislature delaying the effectiveness of the 1970 census for g:neral state and local governmental 

purposes. 

Section 56 of Article III of the Texas Constitution prohlbits the Legislature from passing any local or special law where 

a general law can be made applicable. The purpose of this constitutional provision has been very ably explained in Miller v. 

El Paso County, 136 Tex. 370, 150 S.W.2d 1000 (1941) at page 

001-1002: 

"The purpose of this constitutional lnhibition against the enactment of local or special 

laws is a wholesome one. It is intended to prevent the granting of special privileges and to 

secure uniformity of law throughout the State 

as far as possible. It is said that at an early 

period in many of the states the practice of 

enacting special and local laws became 'an 

efficient means for the easy enactment of 

laws for the advancement of personal rather 

-4545- 
Hon. John Lawhon, page 3 (M-932) 

than public interests, and encouraged the 

reprehensible practice of trading and "logrolling."' It was for the suppression of such 

practices that such a provision was adopted 

in this and many of the other states of the 

Union. 25 R.C.L., p. 820, $68. 

'Notwithstanding the above constitutional 

provision, the courts recognize in the Legislature a rather broad power to make classifications 

for legislative purposes and to enact laws for 

the regulation thereof, even though such legislation may be applicable only to a particular class 

or, in fact, affect only the Inhabitants of a 

particular locality; but such legislation must 

be Intended to apply uniformly to all who may 

come within the classification designated In 

the Act, and the classification must be broad 

enough to Include a substantial class and must 

be based on characteristics legitimately distinguishing such class from others with respects 

to the public purpose sought to be accomplished 

by the proposed legislation. In other words, 

there must be a substantial reason for the 

classification. It must not be a mere arbitrary 

device resorted to for the purpose of giving what 

is, In fact, a local law the appearance of a 

general law. City of Fort Worth v. Bobbitt, 

121 Tex. 14, 36 S.W.2d 470, 41 S.W.2d 228; 

Bexar County V. Tynan, 128 Tex. 223, 97 S.W.2d 

467; Clark v. Finley, Comptroller, 93 Tex. 171, 

178, 54 S.W. 343; Supreme Lodge United Benevolent 

Ass'n v. Johnson, 98 Tex. 1, 81 S.W. 18; Smith 

v. State, 120 Tex.Cr.R. 431, 49 S.W.2d 739; 

Randolph v. State, 117 Tex.Cr.R. 80, 36 S.W.2d 

484; Fritter v. West, Tex.Civ.App., 65 S.W.2d 

414, writ refused; State v. Hall, Tex.Civ.App., 

76 S.W.2d 880; Wood v. Marfa Ind. School Dist., 

Tex.Civ.App., 123 S.W.2d 429. As said in 

Leonard v. Road Maintenance District No. 1, 

187 Ark. 599, 61 S.W.2d 70, 71: 'The rule 

is that a classification cannot be'adopted 

arbitrarily upon a ground which has no foundation'ln difference of situation or circumstances 

of the municipalities placed in the different 

classes. There must be some reasonable relation 

-4546- 
Hon. John Lawhon, page 4 (M-932) 

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." 

Because population as a basis for classification has 

been sustained by the courts with respect to legislation on 

certain subjects, /-City of Ft. Worth v. Bobbltt, 121 Tex. 14, 

41 S.W.2d 228 (193n; Clark V, Fi nley, 93 T 1'11, 54 S.W. 343 

(1899) 7, it has been widely, and erroneous:;; assumed that population bFackets may be resorted to in all instances to avoid the prohibition of Section 56 of Article III of the Texas Constitution. 

This erroneous assumption emanates from a lack of appreciation 

for the fact that population has been sustained as a basis for 

classification only In those instances where population bears a 

reasonable relation to the objects and purposes of the law and 

the chosen population bracket was founded upon rational differences 

in the conditions, status, duties or circumstances of the groups 

included and excluded from the operable effect of the law. Bexar 

County v. Tynan, 128 Tex. 223, 97 S.W.2d 467 (1936). Where it 

been determined that, considering the objects and purposes of the 

law, differences in population afford no rational basis for discriminating between groups of the same natural class, classification has been termed arbitrary selection, and the law has been 

held to be special and local within the prohibition of Section 56 

of Article III. Smith V. Decker, 158 Tex. 416, 312 S.W.2d 632 

(1958); San Antonio Retail Grocers v. Lafferty, 156 Tex. 574, 

297 S.W.2d 813 (195',)* Rodrigues v. Gonzales, 148~Tex. 537, 227 

S.W.2d 791 (1950); Anderson v. Wood, 137 Tex. 201, 152 s.W.2d 

1084 (1941). 

Reference to House Bill 1754 shows that it creates two 

categories of counties for the purpose of the allowance of traveling expenses and automobile depreciation for county judges and 

county commissioners. One category is those counties having a 

population of not less than 73,000 nor more than 75,750. In 

these counties the allowance may be set at any sum up to $150.00 

per month. The second category is counties having a population 

of not less than 11,870 and not more than 12,000. In these counties 

the allowance may be set at a sum not exceeding $125.00 per month. 

These provisions must be construed in light of the provisions of 

Article 23500 of Vernon's Civil Statutes, which is the general 

statutory provision pertaining to the allowance for travel expenses and automobile depreciation for the members of the commissioners court. The provisions of that act read as follows: 

-4547- 
Hon. John Lawhon, page 5 (M-932) 

'Section 1. In any county in this State 

having a population of not more than twenty-one 

thousand, five hundred (2l,5OO), according to 

the last preceding or any future Federal Census, 

the Commissioners Court is hereby authorized to 

allow each member of such Commissioners Court 

the sum of not exceeding Seventy-five Dollars 

($75.) per month for traveling expenses and 

depreciation on his automobile while on official business within the county. Each member 

of such Commissioners Court shall pay all ex- .e 

penses in the operation of such automobile and 

keep same in repair free of any other charge 

to the county, 

'Sec. 2. In any county in this State having 

a population In excess of twenty-one thousand, 

five hundred (21,500) but not in excess of one 

hundred twenty-four thousand (124,000), according 

to the last preceding or any future Federal Census, the Commissioners Court is hereby authorized 

to allow each member of the Commissioners Court 

the sum of not exceeding One Hundred Dollars 

($100) per month for traveling expenses and 

depreciation on his automobile while on official 

business within the county. Each member of such 

Commissioners Court shall pay all expenses in 

the operation of such automobile and keep same in 

repair free of any other charge to the county. 

"Sec. 3. In any county in this State having 

a population in excess of one hundred twenty-four 

thousand 124 000 but not in excess of six hundred 

thousand 1600:000] according to the last preceding 

or any future FedeGal Census, the Commissioners 

Court is hereby authorized to allow each member 

of the Commissioners Court the sum of not exceeding 

One Hundred and Twenty-five Dollars (8125) per 

m~onth for traveling expenses and depreciation on 

his automobile while on official business within 

the county. Each member of such Commissioners 

Court shall pay all expenses in the operation of 

such automobile and keep same in repair free of 

any other charge to the county. 

"Sec. 4. In any county of this State having 

a population in excess of six hundred thousand 

-4548- 
Hon. John Lawhon, page 6 (M-932) 

(~OO,OOO), according to the last preceding or 

any future Federal Census, the Commissioners 

Court is hereby authorized to allow each member 

of the Commissioners Court the sum of not exceeding One Hundred and Fifty Dollars ($150) 

per month for traveling expenses and depreciation 

on his automobile while on official business 

within the county. Each member of such Commissioners Court shall pay all expenses in the 

operation of such automobile and keep same in 

repair free of any other charge to the county. 

"Sec. 5. The term 'members of the Commissioners Court' when used herein means the County 

Commissioners and the County Judge. 

"sec. 6. The provisions of this bill shall 

apply only to those counties not furnishing an 

automobile, truck, or by other means providing 

for the traveling expenses of Its commissione$s, 

while on official business within the county. 

A comparison of the two acts makes it readily apparent 

that the sole purpose of House Bill 1754 is to create two very 

narrow exceptions to the provisions of Section 1 and Section 2 

of Article 23500. According to the 1970 census figures, Section 

1 of House Bill 1754 could apply only to Denton County, Texas, 

and Section 4 could apply only to Comanche County, Texas. Under 

the provisions of Article 23500, Denton County is in a classification of counties where the maximum sum allowable for travel expenses and automobile depreciation is $100.00. House Bill 1754 

would place Denton County In a category of counties now limited 

to those having a population in excess of 600,000, thus, in 

effect, jumping Denton County over that category of counties 

specified in Section 3 of Article 23500. Section 4 of House 

Bil~l 1754 removes Comanche County from that classification of 

counties established by Section 1 of Article 23500, and places 

it in the category established by Section 3 of that Article, 

which applies to counties having a population in excess of 

124,000, but not in excess of 600,000. We are aware of no 

unique circumstance or situation which exists in Denton and 

Comanche Counties which would warrant their removal from the 

general classification already established by Article 23500, 

Vernon's Civil Statutes, and place them on a par with counties 

having much larger population for the purposes of travel expense 

and automobile depreciation allowance for the members of the 

commissioners court. For this reason, and upon the rationale 

of Miller v. El Paso County, supra, we hold that House Bill 1754 

-4549- 
Hon. John Lawhon, page 7 (M-932) 

is a local or special law within the meaning of Section 56 of 

Article III of the Texas Constitution and is therefore invalid. 

SUMMARY 

House Bill 1754, Acts 62nd Leg., R.S. 1971, 

Ch. 583, p. 1927, is a local or special law 

within the meaning of Section 56 of Article III 

of the Texas Constitution and is therefore unconstitutional. 

/7 

ey General of Texas 

Prepared by W. 0. Shultz 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

Kerns Taylor, Chairman 

W. E. Allen, Co-Chairman 

Bob Lattimore 

Sam McDaniel 

Ben Harrison 

Ivan Williams 

MEADE~F. GRIFFIN 

Staff Legal Assistant 

ALFRED WALKER 

Executive Assistant 

NOLA WHITE 

First Assistant 

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