NEY GENERAL

A-I-IWBRNEZY

GENERAI. October 13, 1969

Honorable J. W. Edgar Commissioner of Education Texas Education Agency 201 East 11th Street Austin, Texas 78711 OpinionNo. M- 488
Re: Constitutionalityof House Bill 1274, Chapter 443, Acts of the 61st Legislature, Regular Session, 1969 (codified as Article 2775a-2, Dear Dr. Edgar: Vernon's Civil Statutes.)

You have recently requested the opinion of this office as to the constitutionalityof H.B. 1274,Acts of the 61st Legislature (1969),which reads, in part:

,f

. . . The board of trustees of an independent schooldistrict in a countyhaving a population of more than 8,605 but less than 8,615, according to the last preceding federal census, shall order that each trusteeposition be designatedby number and that each candidate be designated on the officialballot by the number of the position sought.

Candidatesreceiving the vo{eH cast shallbe entitled trustees." a majority of to serve as

Your request letterpoints ,outthat Article 2775a-1, Vernon's Civil Statutes, is a general law providing for a numbered or place system of election of trustees of Independent schooldistricts having 500 or more scholastics,and that said Article 2775a-1provides that only a plurality,rather than a majority, Is required for election; t;hatthe only county In the State of Texas with a population of

. . .more than 8,605 but less than 8,615, according to the last preceding federal census

. . . is Brooks County; that the Brooks County IndependentSchool District Is the only independent school district in Brooks County; and, that there are no known or apparent reasons why the Brooks County Independent School District should elect its board of trustees in anymanner different from thatmethod employedby other independent schooldistricts.

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Dr. J. W. Edgar, page 2 (~-488)

Section 56 of Article III, Texas Constitution,provides: "The Legislature shall not, except as otherwiseprovided in this Constitution,pass any local or special law, authorizing: II

. . . 'For the opening and conducting of elections, or fixing or changing the places of voting; 1,

. . . "Regulatingthemanagement of public schools, the building or repairing of schoolhouses, and the raising ofmoney for such purposes; 1, 0

. . "And in all other cases where a general law can be made applicable,no local or special law shall be enacted;

. . .'
In the case of Miller v. El Paso County 136Tex. 370, 150 S.W.2d 1000 (1941), the questionpresentedwai very similar to that under considerationherein, i.e., whether the population classlffcation establishedby a particular statutewas constitutional. Referring to Section 56 of Article III of the Texas Constitution, the Supreme Court said:

"Thepurpose of this constitutionalinhibition against the enactment of local or special laws is a wholesome one. It is intended to prevent the granting of specialprlvflegesand to secureuniformity of law throughout the State as far as possible.

. . . "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 legislationmay 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 whomay
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come within the classificationdesignated in the Act, and the classificationmust be broad enough to Include a substantialclass andmust be based on characteristicslegitimatelydistinguishing such class from others with respect to the public purpose sought to be accomplishedby the proposed legislation. In otherwords, 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 Lodge United Benevolent Ass'n v. Johnson, 98Tex. 1, 81 S.W. 18; Smith v. State, 120Tex.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 MaintenanceDistrictNo. 1, 187 Ark. 599, 61 S.W12d 70, 71: 'Therule is that a classificationcannot be adopted arbitrarilyupon a ground which has no foundation in difference of situation or circumstancesof themunicipalities placed in the different classes. There must be some reasonable relationbetween the situation ofmunicipalities classifiedand the purposes and objects to be attained. There must be something * * * which in some reasonabledegree accounts for the division Into classes.'" The Attorney General of Texas has repeatedly followed the guidelines set forth in the Miller case when dealing with a statute such as the one herein c-red /;jke Attorney General's Opinions 0-4206 (1941)and R-2424 (1951 7,and will continue to do so in this instance. As it appearsh,at the Brooks County Independent School District is the only school district in the state which would be affectedby H.B. 1274, due to the unreasonably narrow population classification set out by the bill ( **a** population range of eight persons), and therebeing no known or apparent reason why said school district should elect Its school board trustees in a manner different from that employedby other schooldistricts similarly sftuated, it is the opinion of this office that saidH.B. 1274 is unconstitutional.

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SUMMARY
House Bill 1274, Chapter 443, Acts of the 61st Legislature,Regular Session, 1969 (codifiedas Article 2775a-2,Vernon's Civil Statutes) violates the terms of Section 56 of Article III, Texas Constitution, in that it attempts to establish an unreasonable classificationbased on population, and it is, therefore.unconstitutional.

Preparedby Bill Corbusier Assistant Attorney General General of Texas

APPROVED: OPINION COMMITTEE
Kerns Taylor, Chairman George Kelton,Vice-Chairman Gordon Cass Charles Parrett Louis Neumann Jim Swearingen
MEADE F. GRIFFIN Staff Legal Assistant
HAWTHORNE PHILLIPS Executive Assistant
NOLA WHITE First Assistant

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