Honorable Wardlow Lane, 

Chairman, State Affairs, 

Senate of Texas, 

Austin, Texas Opinion WW-34. 

Re: Constitutionality of Senate Bill 

103, of the 55th Legislature, 

Dear Senator Lane: 

prescriving the maximum working hours for Firemen, on a 

graduated basis in ,regard to the 

population of a County, and 

related questions. 

You have requested an opinion on the constitutionality of Senate Bill 103 

of the 55th Legislature, and the Amendments thereto, currently pending before the 

Senate Committee on State Affairs, Senate Bill 103 is to amend Section 6, of Chapter 38, Acts of the 49th Legislature, as amended (codified as Section 6 of Article 

1583-1, Vernon’s Texas Penal Code), so as to delete provisions relating to maximum working hours of policemen; to prescribe the maximum working hours of 

firemen in cities with more than Ten Thousand (10,000) inhabitants, on a graduated 

basts in relation to the population of the county; and to provide for the minimum 

number of platoons in certain cities; and the sequence of tours of duty of platoon 

members. This bill as written, or as amended by Senate Committee Amendment 

No. 2 by Senator Krueger, would apply to all counties having a population of more 

than Ten Thousand (10,000) inhabitants. The maximum working hours of firemen 

in each category is graduated in relation to the population of the county. 

Section 56 of Article 111 of the Constitution of Texas provides: 

“The Legislature shall not, except as otherwise 

provided in this Constitution, pass any local or specLa1 

law,. . , . ,‘I 

4. I. 

. . . . . 

“Regulating the affairs of cdunties, cities, towns, 

wards or school districts; 

‘I ,, 

. . . . . 

In the case of Miller v. El Paso County, 130 Tex. 370, 150 S. W. 2d 1000, 

the Court stated: 
Hon. Wardlow Lane, Page 2, (WW-34) 

“Notwithstanding the above constitutional provision 

/Art. III; Sec. 5G;the courts recognize,,in the.Legislatare 

a rathes,broad ~$%wer to make classiG~&ions fsr legislative,, 

pur.pos’$s:and to,enact laws for the regulation thereof, even. 

though ,such legisl:tion may be applicable only to a particular 

class or, in fact, affect only the inhabitants of a particular 

locality; but such legislation must bs intended to apply uniformly to all who may come within the classification designated in the Act, and the classification must be broad enough 

to include a substantial class and must be based on characteristics legitimately distinguishing such class from others with 

respect to the public purpose sought to be accomplished by 

the proposed legislation. ln other words, there must be a 

substantial reason for the classification. . . . .” 

1, 

. . . . Resort to population brackets for the purpose 

of classifying 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 basis 

for the classification. . . . .” 

This principle of law has been consistently recognized by the courts 

and by the Attorneys General of this State. Rodriguez vs. Gonzales, 148 Tex. 537, 

227 S.W. 2d, 791 (1950); Bexar County vs. Tyner, 128 

(1936): Oaklev vs. Kent.3 

Tex. 228 97 S.W. 2d, 467 

,-.~~,. - ~~~~~~, Bl S. W. 2d 919 (Tex. Civ. App., 1944), Anderson vs. Wood, 

137 Tex. 201, 152 S. W. id, 1084 (1941j, Attorney General’s Opinion R-2461. 

Clark vs. Finley, 93 Tex. 171, 54 S. W. 343, recognized that substantial 

differences in population,s of counties was a basis for legislation fixing compensation 

of officers on the theory that the work devolved upon an officer was directly proportionate to the population of the county. This was recognized as sufficient to 

justify a larger compensation for officers in counties having a large population 

as compared with compensation to like officers in counties having a smaller population. 

This same doctrine applies in like manner to regulation of the working 

hours of firemen by means of a graduated bracket regulation on a population basis. 

Since it has be,en clearly recognized that the work devolving upon officers is 

directly proportionate to the population of the county, a sufficient basis to justify 

a graduated scale of maximum working hours is thus established. It follows that 

the Legislature may determine that the work load of firemen in counties with a 

large population is more strenuous than that in counties with a small population. 

Therefore, a more restricted number of maximum work hours is a reasonable 

regulation. 

Senate Committee Amendment No. 1 restricts the application of the 

bill to cities containing the population of “not more than 400,000 inhabitants”, 

and eliminates at least three cities from the Act, i. e. Dallas, Houston and San 

Antonio. Amendment No. 1 is based upon the determination that cities having 
Hon. Wardlow Lane, Page 3 (WW-34) 

the larger population would not have as great or greater need for regulated maximum working hours as would small cities. The Legislature cannot determine the 

positive and the negative of the same propostion and expect the Act to pass the 

test of being based upon a reasonable classification. 

In Attorney General’s Opinion R-2414, quoting Oakley vs. Kent, Supra, 

the following reasoning was adopted: 

“If population affords a ground for creating the office 

of county purchasing agent, it must be upon one of two theories: 

“(1) The smaller the population of the county the gr,eater 

the need for such an office. 

“(2) The greater the population of the county the greater 

the need of such an office.” 

“The bracket is from 140,000 to 220,000. Upon the first 

theory the law is arbitrary and discriminatory because it excludes 

counties below 140,000, which would have a greater need than the 

counties in the bracket, Upon the second theory, the law is likewise 

arbitrary and discriminatory in that it does not embrace counties 

having a population above 220,000 which counties would have a 

greater need for a purchasing agent than counties within the bracket, 

Neither Senate Bill 103 of the 55th Legislature, nor Senate Committee 

Amendment No. 2, by Senator Krueger sets the maximum working hours of firemen 

in cities with a population of less than 10,000 inhabitants. The Legislature can 

determine that there is no need for regulation in cities of such size. Therefore, 

the exclusion of coverage of such cities in the Bill as written and Senate Committee Amendment No. 2, does not prevent the Bill as written nor Amendment 

No. 2 from being a general law within the meaning of Section 56 of Article III of 

the Constitution of Texas. 

In order for a population bracket to be used as a classification device, 

the premises upon which it is based must be consistent. 

SUMMARY 

Senate Bill No. 103 and Senate Committee 

Amendment No. 2 use a consistent classification 

cLeiric~e:and are don.stitutional. Amendment No. 1 is 

inconsistent with the basic premise of the classification device that the work load in counties with 
Hon. Wardlow Lane, Page 4 (WW-34) 

a larger population is more strenuouq. If adopted, 

it would make this Act a “local or special law” in 

violation of Section 56 of Article III of the Constitution of Texas. 

Very truly yours, 

WILL WI,LSQN 

ATTORNEY GENERAL 

ByB d -, 

B, H. Timmins, Jr. 

Assistant 

BHTji :F 

APPROVED: 

OPINTON COK%TlTW 

By H. Grady Chandler, 

Chairman