Hon. Tor,A. Graven 

County AudItor 

XcLanuan county 

Waco, Texas 

Dear set 

opiaion %o. v-893 

Re: The oonatitutimalit~ of 

Sec. 1, H.Bi 339, 5ut 

Legislature,.Felative to 

the salarim OS County 

officlal8. 

ROitWOl¶O~ iS Whde t0 $W?W I'OQWtt r@t'JUWbt ia 

whioh you inquire a8 to the oonatitutionallty of Seotfon 

1 OS Home Bill Ro. 339, Aots of the 51et Legislature, 

B.S., 1949. That eeotion reaadst 

“In all oormtier irr tM# 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 aoeording to ,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 receive an 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 mm8 ratio 

aair at8 the remlndor OT the yea bears to 

'the total mnual salary provided hewin." 

(lbphaaill 10 added throughout. ) 

we asmme rr08t you~lrtter that hour question 

is, whether the above rwtlon 18 repugnant to Artlole 

ra, seation fj6 of the zexar Constitution, which pro- 

~v5dat in psrtt 
Hon. Tom A. 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 wau held in the case of Bexar County v. 

T an 

T&c 

128 Tex. 223, 97 S.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 80 by local or special lav uaa void. 

In the case of Clark V. Finlee 92 Tex. 171, 

54 S.W. 343 (189g), the Supreme CouPt @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 may be ei$hher by populatlan or 

by taxable valuea. . . . 

In City of Fort Worth v. Bobbitt, 118 Tex. 14, 

36 S,W.2d 470 (1931) the Court in holding void an Act 

of the Legislature wiote: 

‘It will be noted that section 1 of the 

act confines its application absolutely to 

olties which, acootihlnn to the United States 

ceneua of 1920, contain not less than 106 

and not more +%a.n 110,000 Inhabitants. AA 

m0’ 

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, just 
Eon. Tom A. Craven, page 3 (V-893) 

a8 alearly, and just a6 effectively 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 it3 of 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 a wholesome 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 many of 

the states the praotlce.of enacting special 

and local laws beoame ‘an efflclent means for 

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$uoh practices that auoh a ppovirlo~ was adopted in thlr, and many of 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 make olaSSlfication8 for legislative purposes and to enaot 

law8 for the regulation thereof, even though 

euoh legll)~tiOQ may be applloable only to a 

partloular olars or, in faot affeot only the 
Bon. Tom A. Craven, page 4 (V-893) 

substantial class and must 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, and where the population bears some real relation to the subject 

of legislation and affords a fair bat3113 ror 

the olassIfIcatIon.” 

In that case, a etatute dealing with county 

affairs was made appliaable to counties having a population of not less than 125,000 and not more than 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 known to the 

Legislature. The Court wrote that, “We are therefore 

met at the outset with a law which under the facts well 

known at 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 and held that the Aat vas void. 

The Millet-El Paso case has been uniformly 

followed under applicable fact situations. Thus In 

Ex Parte Carson, 159 S.U.2d 126 (Tex. Grim. 1942) the 

urt f C imlnal Appeals held void an Act SIxIng a 

febe So: oointy lav libraries where the act wa8 appllcable only to Harris and mllaa 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. 

And in Oakley v. Kent,, 181 S.U.Pd 919 (‘Per. Civ. App. 

19441, hi 0 t following an Attorney 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 shown that It applied only to Jefferron County. 

That Act was to create a oontral purohaalng agenor for 

the county. . 
Hon. Tom A. Craven, page 5 (V-895) 

Upon oonsultlng the 1948 tax valuations of the 

various countise lmthie State, we flhd that Section 1 

of H.B. 339 can only be applicable now or ln the future 

to ten oounties towltz Bexar, BraLoria, Dallas, C+alV68ton, 

Orean. Harris. Jefferson. NcLennan. liueces and Tarrant. 

The-&t 18 noif aDQliOabli. by vlrtui of the pouulatlon 

bracket. to IllcLennan and %u6oe6 Countlea only. In other 

words. there are 244 other counties which are excluded 

from ihe provleion6 of thin Aot, and perpetually 80, 

even though they may be 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. 1943 7 

ard, 2 Sutherland Statutory Con- 

'37, @aye: 

n An Act llmIted to a particular 

census is'a'fora of ldeutlfloatlon and lnvalid, a6 no subsequent changie in population 

would enable other ootummitle8 to oome wlthln the quallfIoatlon8 of the Act.” 

By analogy, we believe the name to be true oonoernltt@ en Aot limited to the tax Valuati'Qn for a partlaular year. 

We oannot 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 now included. Ye de nat believe that this 

16 a rational or reasonable olarslfloatlon but 18 arbltrary . 

In visa of the fore@olng It 16 our Opinion 

that Section 1 of Ii, B. 339 16 unoonetltutlonal in 80 far 

as It pertains to the Sh&iff, Anderson v. Wood, 137 TSX. 

201, 152 S.W.2d 1084 (1941), the County Judge, 'Ward v. 

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 of 
Hon. Tom 

Criwlial 

Attorney 

Mstrlot Atterney, since the ofSloe e? DirtrIot 

er C~lmlaal M~trlct Attorney is en inoident to 

th.4 Suaotloniag of courts whztob the Legislature or4ates 

r.isdietien and 0rgamOatlm of thoas oourtr wbicb the 

Leglslatum may ertabllsh under Art1016 V, Seotlon 1 OS 

the Constitution OS Texas, are not governod by the provlrlom of Article III, Section 56, and hence looal and 

rpeclal Acte relating thereto ar4 valid. 

Harria Cow&Y vt Croaker uph4la a etatute, 

apeoial in aharaoter, xhleb St*ed the 8al8ry of the B&r-, 

trict Atternej 4S the Crlmlnal Mstrlot Court of Harrla 

couaty. Jones v. Anderaon upheld a special law creating 

the oSSlc4 OS C lml 1 District Attorney for Bexar Counw. Tom Green ~oun~ v. Profltt upheld a law rpeclal 

In character, which Stied the salaries of co&t reporters In certain couutiea. lea1 v. Sheppard upheld a law 

creating the offioe OS Criminal District Attorney OS a 

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 may be severed from the reMWing 

portion, It ie our opinion that the mime ir valid and 

oonstttutioaal* 

It is stated in 2 Sutherland Statutory Construction (3rd ed. 1943) 178-179, Seo. 2404: 

"In determining aeparablllty, leglslativ4 

intent goveraa, but Intent that the act be enforced in 80 far 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 eems p~rpo44, or otherwise so connected together in ~anlng that it 

cannot be presumed the leglrlature would have 

peered the one without the other.' To be oaW+ 

bl,r of seD.arate en.Soroement. the valid Dortlon 
hon. Tom A. Craven, page 7 (V-893) 

of an enactment must b4 lndewndent of the lnvalid portion antl must form a comulete act 

within itself. The law enforced aSt4r separation must be r4asonable in light of the act as 

originally drafted. Th4 teat 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 now enac,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 and not unconatitutlonal. 

You have not Inquired a8 to 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 80 far 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. Bemar Counts v* Tsnan, 128 
Hon. Tom A. Craven, page 8 (V-893) 

263 S.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 i" Tex. 

Clv. App. 1945). 

Yours very truly, 

ATTOHEEi GENERAL OF TEXAS 

BAsmw:bh Aeeletant