### OF TEXAS AUSTIN. TUCXAS 

### 78711

February 12, 1973
Honorable Jim Wallace Chairman, Intergovernmental Relations Committee 1114Texas 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 ofthe Texas ConstiDear Senator Wallace: tution. You have submitted to us acopy ofS.B.. 13and have asked our opinion as to (1)whether the population spread included inthe bill is
“such as would create a substantial class tobe covered by this legislation? ” and (2) whether the bill would be constitutional under Article 3, Section 56ofthe 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 inmany bills and “these questions will be of great urgency to our committee and the Legislature as awhole this session. ” For t,his reason our answer toyour question will, perhaps, be more comprehensive than itwould otherwise need to be. Article 3, Section 56, is not a general prohibition of speciirl or local laws. Rather itlists some 30 categories inwhich 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. ” Itprovides specifically that there shall be nolocal 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 itdoes with the maintenance of safe bridges bymunicipal corporations, would fall within the prohibition andwould be invalid ifclassified as a local or special law.

-31-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 ofthe statute to OIE city only,then the law will be held a special one and unconstitutional. This is best exemplified by City ofFort 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 tothe United States Census of 1920

. . . .” This was held by the Supreme Court to apply only tothe City of Fort Worth, the only city inthe State which would ever be included within the terms ofthe Act. The Legislature then amended the act tomake itapplicable to cities “having apopulation of more than 100, 000 inhabitants according to the last preceding United States census. ” Holding this legislation to be a general law andvalid the Texas Commission ofAppeals inCity of Fort Worth V. Bobbitt, 121Tex. 14, 41S.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 alocal or special law inviolation of section 56, of article 3of our State Constitution, as was the old law. ” (41’s. W. 2dat 229) But not for long was itheld that, merely because the bracket was open-ended andthat more than one city might be included inthe future, the cl&ssification was constitutional. InBexar County v. Tyman,. 128 Tex. 223, 97 S.W. 2d 467 (1936) the statute applied to counties inwhich 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 indoing 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)

-32-, Honorable Jim Wallace, page 3, (H-8)

The court quoted from the decision ofthe Supreme Court of Arkansas inLeonard v. Road Maintenance Dist. No. 1. 187Ark. 599, 61S.W. 2d 70 (1933) as to the factors required tojustify a classification: “The rule is that a classification cannot be adopted arbitrarily upon a ground :which has no foundation indifferences of situation or circumstances ofthe municipalities placed inthe 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 aunanimous Supreme Court inRailroad Commission of Texas v. Miller, 434 S.W1’2d.670 (Tex. 1968) stated:

‘A classification is reasonable ifit is based

on a real and substantial difference having relationship to the subject inthe particular enactment and operates equally on’,all%ithin .the same ‘Yclass; ” InSmith 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. Italso 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 ofthe law is the Legislature’s prerogative, **not** ours. . .” (426 S.W. 2d at 831). See also ~Countyof. Cameron v. Wilson, 160Tex. 25. 326 S.W. Zd 162 (1959). Ineach ofthe foregoing cases it is important to note that the court, indetermining 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)

InAnderson v. Wood, 137 Tex. 201, 252 S.W. 2d 1084 (1941). the statute having to dowith employment oftraffic officers applied to all counties with apopulation in excess of 125, 000 but excluded those not less than 195, 000 nor more than 205, 000. The only county falling inthat 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. InRodrivuez v. Gonzales, 148 Tex. 537, 227 S.W. 2d 791 (1950), the act having to dowith 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 ofthe King of Spain. The Court was unable to find any reasonable bas is for the classification and held itto be a special law. SanAntonio 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 inits application to grocers. Reviewing the facts which showed the effect ofthe 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, 312S.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 nobasis for excluding from the act counties having cities of 100, 000 to 349,999 inhabitants and held itto be a special act. Whether or not a classification is reasonable is a decision which would have to be made, inthe first instance, by the Legislature andwill be determined, secondly, by a court ifandwhen the constitutionality of the statute is raised. Whether or not a classification is reasonable is a determination based on questions offact and we donot conceive it to be one within ourjurisdiction inadvising the Legislature as to the law.

-34-.

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 andwill ask why San Antonio and any other city which may inthe future fall within the classification should be treated differently as to its liability for the maintenance of safe bridges. Itwill 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 inthosecities that the bridges be safe than in smaller cities? Itwill ask why this greater responsibility, for some reason, terminates when the city reaches 800, 000 inpopulation? Itis 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 inS.B. 13. as presently drawn, is not a reaeonable one andthat the act is a special law and thus unconstitutional under Article 3, Section 56.-SUMMARYWhether or not apopulation bracket or spread determining application of alaw is sufficiently broad, or whether application ofa statute limited to a class determined by population is constitutional under Article 3, Section 56ofthe Constitution of Texas depends onthe reasonableness ofthe classification, based upon the existence of substantial differences and thecircumstances ofthe affected classes.Yours very truly,

APPROVED:

J&-I& M. BARRON Attorney General of Texas

- 7 DAVID M. KENDALL, Chairman Opinion Committee -35-