Hon. Richard S. Morris 

County Attorney 

Armstrong County 

Claude, Texas 

Dear Sir: Opinion No. O-2127 

Re: Constitutionality of Senate Bill 

367 of the 46th Legislature of 

Texas 

Your request for opinion of this department as to 

the constitutionality of Senate Bill 367 of the 46th Legislature of Texas has been received and carefully considered. 

Senate Bill 367 of the 46 Legislature of Texas, 

reads as follows: 

"COUNTY COMMISSIONERS - TRAVELING EXPENSES 

S. B. No. 367 

Acts of the 46th Legislature 

"AN ACT authorizing the Commissioners Court in 

all counties having a pop~ulation of not less 

than three thousand three hundred (3,300) and 

not more than three thousand four hundred (3,400), 

according to the last preceding Federal Census, 

and in all counties ha'ving a population of not 

less than ten thousand three hundred ninety-nine 

(10,399), and not more than ten thousand four 

hundred ninety-nine (10,499), according to. the 

last preceding Federal Census, to allow each County 

Commissioner certain traveling expenses while traveling on official business; and declaring an 

emergency. 

"BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF 

TEXAS: 

"Sec. 1. In all counties in this State having a population of not less than three thousand 

three hundred (3,300) and not more than three 

thousand four hundred (3,400), according to the 

last preceding Federal Census, and in all counties 
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Hon. Richard S. Morris, Page 2 

having a population of not less than ten thousand 

three hundred ninety-nine (10,399), and not more 

than ten thousand four hundred ninety-nine (10,499), 

according to the last preceding Federal Census, 

the Commissioners' Court in such counties is hereby 

authorized to allow each commissioner the sum of 

Fifty ($50.00) Dollars per month for traveling 

expenses when traveling in the discharge of his 

official duties. 

"Sec. 2. The fact that in counties affected by 

this Act, there is a great deal of traveling over 

rough country roads by the County Commissioners in 

the discharge of their duties; and the fact that 

under the present law said Commissioners are underpaid: and the fact that more effective service can 

be rendered by said Commissioners if more adequately 

paid: and the fact that the allowance of traveling 

expenses as herein set out, is reasonable, just and 

equitable, creates an emergency and imperative 

public necessity that the Constitutional Rule requiring that all bills be read on three several days in 

each house be suspended, and said Rule is hereby 

suspended, and this Act shall take effect and be in 

force from and after the'date of its passage, and 

it is so enacted. 

"Filed without Governor's signature, May 3, 1939. 

"Effective May 3, 1939." 

Armstrong County, Texas, according to the last preceding Federal Census of 1930, has Three Thousand, Three Hundred, Twenty-nine (3,329) inhabitants and is the only county 

in Texas coming within the population brackets of not less than 

three thousand three hundred (3,300) and not more than three 

thousand four hundred (3,400) inhabitants. 

Willacy County, Texas, according to the last preceding Federal Census, has ten thousand four hundred ninety-nine 

(10,499) inhabitants and is the only county in Texas coming 

within the population brackets of not less than ten thousand 

three hundred ninety-nine (10,399) and not more than ten thousand four hundred ninety-nine (10,499) inhabitants. 

The question arises as to whether or not this is a 

local or special act attempting to regulate the affairs of 

counties in violation of Article 3, Section 56 of the Constitution of Texas. 
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Hon. Richard S. Morris, Page 3 

The case of Altgelt vs. Gutzeit, 201 SW 400, holds 

that a Bexar County Road Law, providing for an annual salary 

for commissioners of county for acting in all capacities, was 

unconstitutional, as an attempted regulation of county affairs 

by local and special law. 

The case of Smith vs. State, 49 SW (2d) 739, holds 

that the constitutional prohibition against special laws cannot be evaded by making a law applicable to a pretended class 

and that a statute classifying municipalities by population 

is "special" if the population does not afford a fair basis 

for classification but that the statute merely designates a 

single municipality under the guise of classifying by population. We quote from the court's opinion in said case as follows: 

"A consideration of the classification created by the act involved in the present case in the 

light of Article 3, Section 56 of the Constitution, 

primarily calls for the application of the rule that 

the Legislature cannot evade the prohibition of the 

Constitution by making a law applicable to a pretended class, which is, as manifested by the act, in 

fact, no class. Clark vs. Finley, 54 S.W. 343, supra. 

Some of the tests for determining whether a pretended class is manifested by an act are laid down by 

McQuillan on Municipal Corporations, Wolume 1, pages 

298, 299. We quote: 

"'The classification adopted must rest 

in real or substantial distinction, which 

renders one class, in truth, distinct, or 

different from another class.... There must 

exist a reasonable justification for the 

classification: that is, the basis of the 

classification invoked must have a direct 

relation to the purpose of the law...."' 

We quote from the court's opinion in the case of 

wood vs. Marfa Independent School District, 123 S.W. (2d) 

429, as follows: 

"We take judicial knowledge that no other 

county in Texas has the qualification of area and 

population demanded by the statutes.... It is 
Hon. Richard S. Morris, Page 4 

sufficient to say here that when we look to the 

practical operation of the act, we are led to the 

conclusion that beyond doubt it was the purpose 

of the Legislature to single out Presidio County 

and make the act applicable to that county alone. 

Bexar County vs Tynan, 97 S.W. (2d) 467. For 

that reason the act is a local act and one which 

it was beyond the power of the Legislature to 

enact. Vernon's Annotated Civil Statutes, Texas 

Constitution, Article 3 Section 56; Brownfield vs. 

Tongate, 109 S.W. (2d) 352; City of Fort Worth vs. 

Bobbitt, 36 S.W. (2d) 470; Fritter vs. West, 65 

S.W. (2d) 414; Austin Bros. vs. Patton, 288 S.W. 

182; Smith vs. State, 49 S.W. (2d) 729 

This department held in its opinion No. O-18 on 

March 6, 1939, that Articles 2372-l and 5221b-23, Revised 

Civil Statutes of Texas, 1925, the former being applicable 

to counties having a population of less than fortyeight thousand, nine hundred (48,900) and not more than 

forty-nine thousand (49,000) and the latter applying to 

counties with population of not less than forty-eight 

thousand, nine hundred (48,900) and not more than forty 

eight thousand, nine hundred and seventy-five (48,975) and 

counties with population of not less than ten thousand, 

three hundred and seventy (10,370) and not more than ten 

thousand, three hundred and eighty (10,380), according to 

the last preceding Federal .Census, were unconstitutional 

and void as special laws under Section 56, Article 3, of the 

State Constitution, citing the case of the City of Fort 

Worth vs. Bobbitt, 36 S.W. (2d) 470. 

This department held in its opinion No. O-364, 

on March 1, 1939, that Article 3902, Section 3a thereof, 

Revised Civil Statutes of Texas, 1925, providing for an 

office assistant, bookkeeper and stenographer in counties having a population of not less than forty-eight thousand, none hundred (48,900) and not more than forty-nine 

thousand (49,000 inhabitants, according to the last preceding Federal Census, was void under Article 3, Section 

56, of the State Constitution. 

This department held in its opinion No. O-462, 

on March 21, 1939, that House Bill 632, 46th Legislature, 

which provides for the attachment of adjacent territory 

for zoning purposes by towns of not less than four thousand (4,000) inhabitants within counties of not less than 
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Hon. Richard S. Morris, Page 5 

three hundred thousand (300,000) and not more than three 

hundred and fifty thousand (350,000) inhabitants according to the last preceding Federal Census, was unconstitutional in that it attempted to enact a local law and fell 

within the prohibition of Article 3, Section 56, of the 

Constitution of Texas. 

This department held in its opinion No. O-899, 

on June 1, 1939, that House Bill 866 of the 46th Legislature of Texas, providing for traveling expenses for county 

commissioners of counties having a population of not less 

than (22,X00) and not more than (22,500), acording~to the last 

preceding Federal Census, was unconstitutional in that it 

was a local and special law attempting to regulate the 

affairs of a county and fell within the prohibition of 

Section 56 of Article 3 of the Constitution of Texas. 

This department held in its opinion No. O-1986 

on February 29, 1940, that H. B. 876, 46th Legislature and 

H. B. 1122, 45th Legislature, were unconstitutional and 

void in that the same were local and special laws attempting to regulate the affairs of county and fell within the 

prohibition of Section 56 of Article 3 of the Constitution of 

this State. These bills applied only to Montgomery County, 

Texas. We have heretofore sent you a copy of this opinion. 

This department has held a large number of similar 

acts to be unconstitutional on the grounds above stated. 

Therefore, you are respectfully advised that it 

is the opinion of this department that Senate Bill 367 of 

the 46th Legislature of Texas is unconstitutional and in 

violation of Section 56 of Article 3 of the Constitution of 

Texas in that said Act attempts to regulate the affairs of 

counties by local and special law. 

Very truly yours 

ATTORNEY GENERAL OF TEXAS 

APPROVED APR 15, 1940 

/s/ Wm. J. Fanning 

/s/ Gerald Mann Assistant 

ATTORNEY GENERAL OF TEXAS 

WJF:AW APPROVED OPINION COMMITTEE 

By BWB 

Chairman