OF TEXAS 

AUSTIN. TUCXAS 78711 

February 12, 1973 

Honorable Jim Wallace 

Chairman, Intergovernmental 

Relations Committee 

1114 Texas Avenue Bldg. 

Houston, Texas 77002 

Opinion No. H- 8 

Re: Whether Senate Bill 13 

is a general bill and 

therefore constitutional 

under Article 3, Section 

56 of the Texas ConstiDear Senator Wallace: tution. 

You have submitted to us a copy of S. B.. 13 and have asked our 

opinion as to (1) whether the population spread included in the bill is 

“such as would create a substantial class to be covered by this legislation? ” and (2) whether the bill would be constitutional under Article 3, 

Section 56 of the Constitution of Texas “if the Legislature determined 

that a reasonable basis existed for the classification. ” 

Your letter concludes with the statement that such clas.sifications 

are used in many bills and “these questions will be of great urgency to 

our committee and the Legislature as a whole this session. ” For t,his 

reason our answer to your question will, perhaps, be more comprehensive than it would otherwise need to be. 

Article 3, Section 56, is not a general prohibition of speciirl or 

local laws. Rather it lists some 30 categories in which there shall 

be no such law including “all other cases where a general, law can be 

made applicable, no local or special law shall be enacted. ” 

It provides specifically that there shall be no local or special law 

“regulating the affairs of counties, cities, towns, wards or school 

districts, ” “relating to ferries or bridges. . . . ” Therefore, your 

proposed S. B. 13, dealing as it does with the maintenance of safe bridges 

by municipal corporations, would fall within the prohibition and would be 

invalid if classified as a local or special law. 

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IHonorable Jim Wallace, page 2, (H-8) 

Population classifications are not automatically void. However, if 

the court concludes that the classification is so defined as to limit 

application of the statute to OIE city only,then the law will be held a 

special one and unconstitutional. 

This is best exemplified by City of Fort Worth V. Bobbitt, 121 

Tex. 14, 36 S. W. 2d 470 (1931). As first enacted, the statute in question 

applied to cities “having not less than 106, 000 inhabitants and not more 

than 110, 000 inhabitants, according to the United States Census of 1920 

. . . . ” This was held by the Supreme Court to apply only to the City 

of Fort Worth, the only city in the State which would ever be included 

within the terms of the Act. 

The Legislature then amended the act to make it applicable to 

cities “having a population of more than 100, 000 inhabitants according 

to the last preceding United States census. ” Holding this legislation to 

be a general law and valid the Texas Commission of Appeals in City 

of Fort Worth V. Bobbitt, 121 Tex. 14, 41 S. W. 2d 228 (1931) said: 

“From the statement we have made, it is 

evident that the new law is not subject to the objection 

that it is a local or special law in violation of section 

56, of article 3 of our State Constitution, as was the 

old law. ” (41’s. W. 2d at 229) 

But not for long was it held that, merely because the bracket was 

open-ended and that more than one city might be included in the future, 

the cl&ssification was constitutional. In Bexar County v. Tyman,. 128 

Tex. 223, 97 S. W. 2d 467 (1936) the statute applied to counties in which the 

population was as much as 290,000 and less than 310,000 according to 

the last preceding federal census. Bexar County was the only one within 

the classification but the Court held that this alone did not make the 

statute a special or local law. However, the Court did limit the Legislature’s right to classify according to population, stating: 

II 

. . . Yet in doing so the classification must 

be based upon a real distinction, and must hot be 

arbitrary or a device to give what is in substance a 

local or special law the form of a general law. . . . ” 

(97 S. W. 2d at 470) 

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, 

Honorable Jim Wallace, page 3, (H-8) 

The court quoted from the decision of the Supreme Court of 

Arkansas in Leonard v. Road Maintenance Dist. No. 1. 187 Ark. 599, 

61 S. W. 2d 70 (1933) as to the factors required to justify a classification: 

“The rule is that a classification cannot be 

adopted arbitrarily upon a ground :which has no 

foundation in differences of situation or circumstances 

of the municipalities placed in the different classes. 

There must be some reasonable relation between the 

situation of municipalities classified and the purposes 

and objects to be attained. There must be something 

. . . which in some reasonable degree accounts for 

the division into classes. ” 

More recently Justice Steakley, speaking for a unanimous Supreme 

Court in Railroad Commission of Texas v. Miller, 434 S. W1’2d.670 

(Tex. 1968) stated: 

‘A classification is reasonable if it is based 

on a real and substantial difference having relationship 

to the subject in the particular enactment and operates 

equally on’,all%ithin .the same ‘Yclass; ” 

In Smith v. Davis, .426 S. W. 2d 827 (Tex. 1968) the cou.rt used 

similar language in defining what is a reasonable classification. It 

recognized the presumption that a statute is valid and that the Legislature had not acted unreasonably or arbitrarily. It also recognized 

the possibility of differing opinions as to reasonableness and that such 

differences would not be sufficient to declare legislation arbitrary or 

unreasonable. “The wisdom or expedience of the law is the Legislature’s 

prerogative, not ours. . . ” (426 S. W. 2d at 831). See also ~County of. 

Cameron v. Wilson, 160 Tex. 25. 326 S. W. Zd 162 (1959). 

In each of the foregoing cases it is important to note that the court, 

in determining whether or not a classification was reasonable, discussed 

the facts concerning the classification. 

Examples of some classifications which have been held unreasonable 

might be helpful. 

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, 

Honorable Jim Wallace, page 4, (H-8) 

In Anderson v. Wood, 137 Tex. 201, 252 S. W. 2d 1084 (1941). the 

statute having to do with employment of traffic officers applied to all 

counties with a population in excess of 125, 000 but excluded those not 

less than 195, 000 nor more than 205, 000. The only county falling 

in that category was Tarrant County. The Court was unable to find 

any reason why Tarrant County should be treated differently and 

held this to be a special law. 

In Rodrivuez v. Gonzales, 148 Tex. 537, 227 S. W. 2d 791 (1950), 

the act having to do with collection of delinquent taxes was made applicable only to counties boarding the Rio Grande River; to tracts in excess 

of 1,000 acres owned by ten or more persons and with title emanating 

from a grant of the King of Spain. The Court was unable to find any 

reasonable bas is for the classification and held it to be a special law. 

San Antonio Retail Grocers v. Laff-. 156 Tex. 574, 297 S. W. 2d 

813 (1957) involved the Sales Limitation Act (Article llllm, Vernon’s 

Texas Penal Code) which was limited in its application to grocers. 

Reviewing the facts which showed the effect of the act would be to give 

an advantage to some retailers over others, the Court concluded that 

there was no reasonable basis for the classification. 

Smith v. Decker, 158 Tex. 416, 312 S. W. 632 (1958) involved a 

bail bond law applicable to any county containing a city of 350,000 or 

more or to a county having a city of not less than 73,000 nor more than 

100,000 population. The Court could see no basis for excluding from the act 

counties having cities of 100, 000 to 349,999 inhabitants and held it to 

be a special act. 

Whether or not a classification is reasonable is a decision which 

would have to be made, in the first instance, by the Legislature and will 

be determined, secondly, by a court if and when the constitutionality of 

the statute is raised. Whether or not a classification is reasonable is 

a determination based on questions of fact and we do not conceive it 

to be one within our jurisdiction in advising the Legislature as to the 

law. 

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. 

I 

Honorable Jim Wallace, page 5, (H-8) 

We would suggest that, with particular reference to S. B. 13, a 

court will see that the only city presently falling within the classification 

is San Antonio and will ask why San Antonio and any other city which may 

in the future fall within the classification should be treated differently 

as to its liability for the maintenance of safe bridges. It will ask 

questions such as: is there any basis for saying that cities of over 

600, 000 are better able to provide safe bridges and that it: is more 

important in those cities that the bridges be safe than in smaller cities? 

It will ask why this greater responsibility, for some reason, terminates 

when the city reaches 800, 000 in population? It is our feeling that 

unless the act recites valid reasons for the classification, there is a 

strong possibility that a court will hold that the classification in S. B. 

13. as presently drawn, is not a reaeonable one and that the act is a 

special law and thus unconstitutional under Article 3, Section 56. 

-SUMMARYWhether or not a population bracket or spread 

determining application of a law is sufficiently broad, 

or whether application of a statute limited to a class 

determined by population is constitutional under 

Article 3, Section 56 of the Constitution of Texas depends 

on the reasonableness of the classification, based upon 

the existence of substantial differences and the circumstances of the affected classes. 

Yours very truly, 

APPROVED: 

J&-I& M. BARRON 

Attorney General of Texas 

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DAVID M. KENDALL, Chairman 

Opinion Committee 

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