Hon. Tor,A. Graven County 

### AudItor XcLanuancounty Waco, Texas



### Dearset opiaion %o. v-893 Re: The oonatitutimalit~ of Sec. 1, H.Bi 339, 5ut Legislature,.Felative to the salarim OSCounty 

### officlal8.
ROitWOl¶O~ iS Whde t0 $W?W I'OQWtt r@t'JUWbtia whioh you inquire a8 to the oonatitutionallty of Seotfon 1 OSHome Bill Ro. 339, Aots of the 51et Legislature, B.S., 1949. That eeotion reaadst

“In 

### alloormtier irrtM# Bkte having a population of more than nlnoty thousand (gO,OoO) perrons 

### aacordirrq to the last preoe&k~ Federal fI.erUua,ana not more than on. hundred, forty-five thwsaml (145,000) population 

### aoeordingto,eoah FwUmal Census aad 02th a 

### tubla valuation fol, oounty purthb county attorney perfornlng the dtttles .oi a dlstrlot attoraey and the oonnty attorney shall 

### receivean annual *alar7 of Six Thousand, Floe Rm&ed Dollars ($6,500) payable in equal monthly inetallmonts. The salary of swb oiricmrr 

### from the effective date 

### of WI Aot, for the remainder of the ear i 1949, &all be ~$6 on th6 mm8ratio aair at8the remlndor OTthe yea 

### bearsto 'the total mnual salary provided hewin." (lbphaaill 10 added throughout. )

we asmme rr08tyou~lrtter that hour question is, whether the above rwtlon 18repugnant to Artlole ra, seation fj6of the zexar Constitution, which pro- 

### ~v5datin psrttHon. TomA. Craven, page 2 (v-893)

“The Legislature shall not, ,exoept ‘as otherwise provided In this Constitution, pass any looal or special law, authorizing: , . , Regulating the affairs of counties, cities, towns, wards or school districts:

. . .‘I It wauheld in the case of Bexar County v. T an T&c 128Tex. 223, 97S.X.2& 467 (1936) that an act g salaries of county officers was an’act %eRulatlng tiie affairs of counties” within the purview of the ConstltutZon, and an attempt to do 80by local or special lav uaa void.

In the case of Clark V. Finlee 92Tex. 171, 54S.W. 343 (189g), the SupremeCouPt @aid:

%.thout entering at large upon the discussion of what ie here meant by a ‘local ‘or .special law,’ it is sufficient to sag that a Statute which relates to persona or things a8 a class is a general law, while a statute which relates to partioular persons or things of a class is special, and comes within the constitutional prohibition.

. . .

“There must be a classification. That claselflcatlon maybe ei$hherby populatlan or by taxable valuea.

. . . In City of Fort Worth v. Bobbitt, 118Tex. 14, 36S,W.2d 470 (1931) the Court in holding void anAct of the Legislature wiote:

‘It will be noted that section 1 of the act 

### confinesits application absolutely to olties which, acootihlnn to the United States ceneua of 1920, contain not less than 106 andnot more +%a.n110,000 Inhabitants. AAm0 ’ examination of the oensu~ referred to dlsclo~ses that the olty of Fort Worth, Tex., is absolutely the only-oltg in the state ofTexas that has a population coming within the prOViSiOn of this act. Furthermore, the act Is eo.construated that it is absolutely impossible for any other city in the state to ever be Included within the terma or under the provision8 of the act. It i8 therefore our opinion that this act is confined In its applicatlon to the olty of Fort Worth only, justEon. Tom A. 

### Craven, page 3 (V-893)

a8 alearly, andjust 

### a6effectively aa if the stipulation with reference to 

### population had been omitted and the name ‘Fort Worth’ written therein ln Its stead.

. . .

lstlng population er upon the population ah% by specified oeaeua it3of this oha&aoter.l* In the cane of l!Uler v. Bl Paso County, 136 Tee.~~~;:l50 S.YiZd 1000 (19411, chief Justice Alexan-

“The purpose of thlr oonatltutlonal lnhlbltlon againat the enaotment of local or special lawa Is awholesome one. It is lntended to prevent ths granting of epeclal privileges and to secure unlformlty of law throughout the State aa far as possible. It lz said that at an early perlod ln manyof the states the praotlce.of enacting special and local laws beoame ‘an efflclent meansfor the ea8y enactment of law6 for the advancement of personal rather than public Interests, and encouraged the reprehensible practice of trading and “logrolllng.“f It was for the supprebrlon of r$uohpractices that auoh a ppovirlo~ 

### wasadopted in thlr, andmanyof the other atates of the Union. I 68. 25 R.C.S., p. 820,

“Ilotvlthstandlng the above constitutional provizlon, the courta recognize ln the Leglalature a rather broad power to makeolaSSlfication8 for legislative purposes and to enaot law8 for the 

### regulation thereof, even though euoh legll)~tiOQ maybe applloable only to 

### a partloular olars 

### or, in faot affeot only theBon. TomA. Craven, page 4 (V-893)

substantial class andmust be based on 

### characteristics legitimately distlnguIshlng such class from others with respect to the public purpose sought to be aocompllshed by the proposed legislation. In other words, there must be a subrtantlal reason for the classification

. . .” Resort to population brackets 

### for the purioie’of clas8IfyIng subjects for legislation IS permissible where the spread of population Is broad enough to Include or segregate a substantial class, andwhere the population bears somereal relation to the subject of legislation and affords a fair bat3113 ror the olassIfIcatIon.”
In that case, a etatute dealing with county affairs was madeappliaable to counties having a population of not less than 125,000 andnot 

### morethan 175,000 and oontainlng a city of not less than 90,000 inhabltante. The Court said It could apply only to El Paso County and that such fact must have been knownto the Legislature. The Court wrote that, “Weare therefore met at the outset with a lawwhich under the facts well knownat the time of its adoption, was applicable only to a single county. Clearly then it Is a local law and must fall as such, unless it can be fairly said that the class so segregated

. . . has charaoterletlos digtInguIshIng it from the remainder of the State

. . .

The Court 

### found no such dl8tInguiOhIng oharaoterietios andheld that the Aat vas void.

TheMillet-El Paso case has been uniformly followed under applicable fact situations. Thus In ExParte Carson, 159S.U.2d 126 (Tex. Grim. 1942) the urt f Cimlnal Appeals held void anAct SIxIng 

### a febeSo: oointy lav libraries where the act 

### wa8appllcable only to Harris andmllaa Couutles. In Jameson v Smith 161 S.Y.2d 520 (Tex. Clv. App. 1942, m Gf), the Court held void an Act Increasing the aalarler of County Co~ssioners in Coleman County only. Andin Oakley v. Kent,, 181 S.U.Pd 919 (‘Per. Civ. App. 19441, 

### hi 0 t following anAttorney Oeneral’a Oplniou, held’voy?& aot 

### l pplloable to counties of not leer than 140,000 nor more than 220,000 population 

### where it va8 shownthat It applied only to Jefferron County. That Act was to create a oontral purohaalng agenor for the county.

.Hon. TomA. Craven, page 5 (V-895)

Uponoonsultlng the 1948 tax valuations of the various countise lmthie State, weflhd that Section 1 of H.B. 339 can only be applicable nowor ln the future to ten oounties towltz Bexar, BraLoria, Dallas, C+alV68ton, Orean. Harris. Jefferson. NcLennan. liueces andTarrant. The-&t 18noifaDQliOabli. by vlrtui of the pouulatlon bracket. to IllcLennanand%u6oe6Countlea 

### only. In other words. there are 244 other counties which are excluded from ihe provleion6 of thin Aot, andperpetually 80, even though they maybe eirilarly situated in the future. This 18

### true beoawe the Aot lidto its applleatlon to oountiee having a valuation 

### of~85,000,000 according to a particular, past valuation; i.e., the"1948 tax valuation. Bo aountles, of oour6e, can ohenge their 1948 tax valuatlone. In this re rtruotlon (3rd ed. 19437ard, 2Sutherland Statutory Con- '37, @aye:
n AnAct llmIted to a particular census is'a'fora of ldeutlfloatlon and lnvalid, 

### a6no subsequent changie in population would enable other ootummitle8to oomewlthln the quallfIoatlon8 of the Act.” Byanalogy, webelieve the nameto be true oon

### oernltt@

enAot limited to the tax Valuati'Qn for a partlaular year.

Weoannot oonoelve of any be618 for permanently excluding 244 count&e6 from the provisions of this Act, any one of whleh could in the future be similarly sltuat&d a6 those nowincluded. Ye de nat believe that this 16a rational or reasonable olarslfloatlon but 18 arbltrary

. 

### Invisa 

### ofthe fore@olng 

### It 16 our Opinion that Section 1 of Ii, B. 339 16unoonetltutlonal in 80far as It pertains to the Sh&iff, Anderson v. Wood, 137TSX. 201, 152 S.W.2d 1084 (1941), the County Judge, 'Wardv.

209 S.W. 792 (Tex. Clv. App. 19lm ~%?$%!%triot Clerk Duclos v. ,Barris Cou&,~$~ Tex: i4?. 263 S.W. 562 (14241. the Counts Clerk, th Asaesao~'andCollec~&,‘t~e &nty Attorney and-the Comty Attorney perfoxmlng the dutlee of a Matriot Attorney.

Although Section 1 of H.B. 339 16 unoonatltutlonal as being In vlolatlon of Artiole III, Section 56 in eo far a8 it pertains to the above mentlon6d oounty offloere, the bill Is not governed by said constitutional provl6lon6 in 80 far as it pmtaine to the office ofHon. Tom



### Criwlial Attorney Mstrlot Atterney, since the ofSloe e? 

### DirtrIot

er C~lmlaal M~trlct Attorney is en inoident to th.4Suaotloniag of 

### courts whztobthe Legislature or4ates

r.isdietien 

### and0rgamOatlm ofthoasoourtr wbicbthe Leglslatum mayertabllsh under Art1016 V, Seotlon 1 OS the Constitution OSTexas, are not governod by the provlrlom of Article III, Section 56, 

### andhencelooaland rpeclal Acte relating thereto ar4 valid.

Harria Cow&Y vt 

### Croakeruph4la 

### aetatute, apeoialinaharaoter, xhlebSt*edthe8al8ryoftheB&r-, trict Atternej 4Sthe Crlmlnal Mstrlot Court of Harrla couaty. Jones v. Anderaon upheld a special law creating the oSSlc4 OSClml 1District Attorney for Bexar Counw. Tom

### Green ~oun~ v. Profltt upheld a law rpeclal In character, which Stied the salaries of co&t 

### reporters 

### Incertain

couutiea. lea1 v. Sheppard upheld a law creating the offioe OSCriminal District Attorney OSa Mntrlat Court of general jurisdiction in Gr4gg County whloh alao fixed the ralary for the Cririnal District Attorney. IS that part of the Aat psrtainlng to the Crlnlnal Mstriat~Attorney maybe severed from the 

### reMWing portion, It ie our opinion that the mimeir valid and oonstttutioaal*

It is stated 

### in2Sutherland Statutory

Construction(3rded.1943) 178-179, Seo. 2404:

"In determining aeparablllty, leglslativ4 intent goveraa, but Intent that the 

### actbeenforced in 80far as valid Is not the sole consideration. If the legislature so intended, the valid parts of an act will be uphela 'unless all the provisions are connected in Subject matter, dependent on each other, operating together for the 

### eemsp~rpo44, 

### orotherwise so connected together in ~anlng that it cannot be 

### presumed

theleglrlature would have 

### peeredthe one without the other.' Tobe oaW+ 

### bl,r ofseD.arate en.Soroement. the valid Dortlonhon. 

### TomA.Craven, page 7 (V-893)

of an enactment must b4 lndewndent of the lnvalid portion antlmust form a comulete act within itself. The law enforced aSt4r separation must be r4asonable in light of the act as originally drafted. Th4teat is whether or not the lealslature would have Passed the statute had it been gresent4d with the invalid Seatures removed," It la our opinion that the valid portion of Section 1 of B.B. 339 to wit, the Increasing of compensation of the Criminal District Attorney, forms a complete act within Itself capable of separate enforcement and the Legislature has declared that it would have enacted such ortion with the r4mainder of the Act removed by Section $ of the Aot, which reads as follows:

"IS any part, S4ctlon, subseation, paragraph, sentenae, claum, phrallb, or word oontalned In this Act ahall be held by the courts to be unoonstltutional or Invalid, such holding shall not affect the validity of the remaining portions of this Act, and the Leglslature hereby declare8 that It would have enacted, and does here nowenac,t such remaFlng portiona despite any suoh invalidity. Ther4fore, that portion of the Act pertaining to the compensation of Crlml.nal Mstrict Attorn4g Is valid andnot unconatitutlonal.

You have not Inquired a8to the constitutionality of Section 2 of R.B. 339; therefore, this opinion is not to be construed as pa.ssing on the validity of said Section,

Sectlen 1 of H.B. 339, Aote of the 514t Legislature, 1949, Slxlng the salaries of county officiali in certain counties la a local and special law in violation of Article III, Section 56 of th4 Constitution of Texas In 80far as It psrtalaa to the Sheriff, County Judg4, Diatriot Clark, County Clerk, Tax Asaeesor-Collecter, County Attorney and the County Attorney performlag the duties 

### of Distrlot Attorney. 

### BemarCountsv* 

### Tsnan,128Hon. TomA. Craven, page 

### 8 (V-893)

263S.W.562(1924). Section 1 of 

### H.B. 339 58 valid and oonstitutional in eo 

### far aa It pertains to the office of Cririrral District Atterney. Veal v She, 8rd 209 S.U.2d 

### 388(Tex. Clv. 

### A Itim#fs v,. Aal deraon, 189 S.Y.2d 

### 65 Tex. i" Clv. App. 1945). Yours very truly, ATTOHEEi

GENERAL

OFTEXAS



### BAsmw:bh Aeeletant