i%TlXDRNEY ENERAL

Honorable John Lawhon District and CountyAttorney County Courthouse Denton, Texas 76201

Dear Mr. Lawhon: OpinionNo. 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 commissionerscourt to set "travel expenses and depreciation"of one ormore of the commissionersat 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 unconstitutionaland thereforenever became a validand effective law. It Is thereforeunnecessary to answer your questions.

The relevant portions of House Bill 1754 read as follows:

'Section 1. In any countyhaving a populatlon of not less than 73,000 nor more than 75,750 :ccording to the last preceding federal census, the commissioners courtmayalloweachmember of the commissioners court notmore than $150 per month for traveling expensesand depreciation on his automobilewhile on officialbusiness within the county. Each member of the commissionerscourt shallpay 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, 'membersof the commissioners court'means the county commissioners

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and the county judge.

'Sec. 3. This Act applies only to counties not furnishingan automobile or truck or by other
means providing for the traveling expenses of members of their commissionerscourtswhile on officialbusiness 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 commissionerscourt is hereby authorized to allow eachmember of the court the
sum of not exceeding $125 per month for traveling expenses and depreciation on his automobilewhile
on officialbusiness within the county. Each member of the court shallpay 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, 'thelast preceding federal census'means the 1970 census or any future decennial federal census. This **is** despite any legislationthat has been or may be enacted during any session of the 62nd Legislature delaying the effectivenessof the 1970 census for g:neral state and local governmental purposes.
Section 56 of Article III of the Texas Constitutionprohlbits the Legislature from passing any local or special law where
a general law can be made applicable. The purpose of this constitutionalprovision has been very ably explained in Miller v. El Paso County, 136 Tex. 370, 150 S.W.2d 1000 (1941)at page 001-1002:

"Thepurpose of this constitutional lnhibition against the enactment of local or special laws is a wholesome one. It is intended to prevent the granting of specialprivileges and to
secureuniformity of law throughout the State
as far as possible. It is said that at an early period inmany of the states the practice of enacting special and local laws became 'an efficientmeans for the easy enactment of laws for the advancement of personal rather

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than public interests,and encouraged the reprehensiblepractice of trading and "logrolling."' It was for the suppressionof such practices that such a provisionwas adopted in this and many of the other states of the Union. 25R.C.L., p. 820, $68.
'Notwithstandingthe above constitutional provision, the courts recognize in the Legislature a rather broad power to make classifications for legislativepurposes 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 Inhabitantsof a particular locality;but such legislationmust be Intended to apply uniformly to all who may come within the classificationdesignated In the Act, and the classificationmust be broad enough to Include a substantial class and must be based on characteristics legitimately distinguishing such class from otherswith respects to the public purpose sought to be accomplished by the proposed legislation. In other words, theremust be a substantialreason 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 LodgeUnited 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: 'Therule is that a classification cannotbe'adopted arbitrarilyupon a ground which has no foundation'ln difference of situation or circumstances of the municipalitiesplaced in the different classes. There must be some reasonable relation

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between the situationofmunicipalities classified and the purposes and objects to be attained. There must be something * * * which in some reasonabledegree accounts for the division into classes."

Because population as a basis for classificationhas been sustainedby the courtswith respect to legislation on certain subjects, /-City of Ft. Worth v. Bobbltt, 121Tex. 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 bFacketsmay be resorted to in all instancesto 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 populationhas been sustainedas a basis for classificationonly In those instanceswhere populationbears a reasonable relation to the objects and purposes of the law and the chosenpopulationbracket was foundedupon rational differences in the conditions, status,duties or circumstancesof 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 rationalbasis for discriminatingbetween 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 AntonioRetail 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 automobiledepreciation for county judges and county commissioners. One category is those countieshaving a population of not less than 73,000 normore than 75,750. In these counties the allowancemay be set at any sumup to $150.00 permonth. The second category is countieshaving a population of not less than 11,870 and notmore than 12,000. In these counties the allowancemay be set at a sum not exceeding $125.00per month. These provisionsmust be construed in light of the provisions of Article 23500 ofVernon's Civil Statutes,which is the general statutoryprovisionpertaining to the allowance for travel expenses and automobiledepreciation for themembers of the commissioners court. The provisions of that act read as follows:

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'Section 1. In any county in this State having a population of notmore than twenty-one thousand, five hundred (2l,5OO),according to the lastpreceding or any futureFederal Census, the CommissionersCourt is hereby authorized to allow each member of such CommissionersCourt the sum of not exceeding Seventy-fiveDollars ($75.) per month for traveling expensesand depreciation on his automobilewhile on official business within the county. Each member of such CommissionersCourt shallpay 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 lastpreceding or any future Federal Census, the CommissionersCourt is hereby authorized to allow eachmember of the CommissionersCourt the sum of not exceedingOne Hundred Dollars ($100)per month for traveling expenses and depreciation on his automobilewhile on official businesswithin the county. Each member of such CommissionersCourt shallpay 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 lastpreceding
or any future FedeGal Census, the Commissioners Court is hereby authorized to allow eachmember of the CommissionersCourt the sum of not exceeding One Hundred and Twenty-fiveDollars (8125)per m~onthfor traveling expenses and depreciation on his automobilewhile on officialbusiness within the county. Each member of such Commissioners Court shallpay 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

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(~OO,OOO),according to the lastpreceding or any future Federal Census, the Commissioners Court is hereby authorized to allow eachmember of the CommissionersCourt the sum of not exceeding One Hundred and Fifty Dollars ($150) per month for travelingexpenses and depreciation
on his automobilewhile on officialbusiness within the county. Each member of such CommissionersCourt shallpay 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 'membersof the Commissioners Court' when used hereinmeans the County Commissionersand the CountyJudge.

"sec. 6. The provisions of this bill shall apply only to those counties not furnishingan automobile, truck, or by othermeans providing for the traveling expenses of Its commissione$s, while on officialbusinesswithin 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 countieswhere themaximum sum allowable for travel expenses and automobiledepreciation 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, jumpingDenton County over that category of counties specified in Section 3 of Article 23500. Section 4 of House Bil~l1754 removes ComancheCounty from that classificationof counties establishedby Section 1 of Article 23500, and places it in the category establishedby Section 3 of that Article, which applies to countieshaving a population in excess of 124,000,but not in excess of 600,000. We are aware of no unique circumstanceor situationwhich exists in Denton and Comanche Countieswhich would warrant their removal from the general classificationalready establishedby Article 23500, Vernon's Civil Statutes, and place them on a par with counties havingmuch largerpopulation for the purposes of travel expense and automobiledepreciation allowance for themembers of the commissionerscourt. For this reason, and upon the rationale of Miller v. El Paso County, supra,we hold that House Bill 1754

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is a local or special law within themeaning of Section 56 of Article III of the Texas Constitutionand is therefore invalid.

SUMMARY

House Bill 1754, Acts 62nd Leg., R.S. 1971, Ch. 583, p. 1927, is a local or special law within themeaning of Section 56 of Article III of the Texas Constitutionand is thereforeunconstitutional. /7

ey General of Texas
Preparedby W. 0. Shultz Assistant Attorney General

APPROVED: OPINION COMMITTEE

Kerns Taylor, Chairman W. E. Allen, Co-Chairman Bob Lattimore Sam McDaniel Ben Harrison IvanWilliams

MEADE~F. GRIFFIN Staff Legal Assistant

ALFRED WALKER Executive Assistant

NOLA WHITE First Assistant

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