QBffice of tfie IZIttotnep Qkneral 

iibtatt of Qcxas 

DAN MORALES 

ATTOINEY GWEnAL 

Setptember 16,199l 

Honorable Rddie Cavaxos 

House Committee on Jnsurance 

Texas House of Representatives 

P. 0. Rex 2910 

Austin Texas 78769 

Opinion No. DM-42 

Re: Validity of statute releasing real 

estate brokers in certain geographic areas 

from continuing education requirements 

(RQ-112) 

Dear Representative Cavaxos: 

You ask about the validity of a 1991 amendment to section 7A of the Real 

Estate License Act, article 6573a, V.T.C.S. Acts 1991,72d Leg., ch. 553, # 1.041, at 

1910. Subsection (a) of section 7A provides for contin~g education requirements 

for the renewal of real estate brokers’ and real estate salesmens’ licenses. The 

amendment in question added a new subsection (e) directing the Real Estate 

Commission, on or before September 25, 1991, to ident@ each real estate broker 

licensed under the act for ten years or more, and having on June 1, 1991, his 

principal place of business in a county with a 1980 census population of 225,000 or 

less, and to notify him that he may opt out of the continuing education requirements 

of the act in the manner provided for in subsection (0. New subsection (f) permits a 

real estate broker so identified and notified to opt out of the contimdng education 

requirements for renewing his license if, after October 1, 1991, and on or before 

October 31,1991, the broker notifies the commission in writing that he is opting out 

and pays a fee to cover administrative costs in an amount to be determined by the 

commission but not to exceed $100. 

You ask speciScaUy 1) whether such an exemption from a professional 

licensing requirement based on geographic locale is permissible, and 2) whether it 

is legal to deny certain consumers the same protection accorded other consumers 

based on geographical location.” We understand your questions to be whether the 

geographical classifications of the exemption in question are valid under the equal 

protection provisions of the federal and state constitutions and under the state 

constitution’s prohibitions regarding local and special laws. See U.S. Const. amend. 

XIV, Tex. Cmst. art. I, 9 3, art. JR, 9 56. We limit our consideration here to those 

specific constitutional issues. 

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Honorable Eddie Cavazos - Page 2 (DM-4 2 1 

Federal equal protection challenges to statutory classiCcations made in 

regulating occupational pursuits are ordinarily reviewed under the so-called 

“rational basis” test. PoUd v. Cocknrg, 578 F2d 1002,1012-13 (5th Cir. 1978). 

The general rule is that legislation is presumed to be valid and 

will be sustained if the clamification drawn by the statute is 

rationally related to a legitimate state interest, 

Cf.@ of Clkbume v. Ckbume Living Center, 473 U.S. 432,440 (1985). 

In contrast to the “strict scrunny” applied to statutory classifications 

burdening “suspect classifications” or “fundamental rights,” judicial review under the 

rational basis test has, as a rule, upheld statutory classifications. The plurality 

opinion of the United States Supreme Court in C&me& v. Fushhg, 457 U.S. 957 

(1982) stated that unless a state statute burdens a “suspect classification” or a 

“fundamental right,” dassiScations made by the statute “are set aside only if they are 

based solely on reasons totally unrelated to the pursuit of the State’s goals and only 

if no grounds can be conceived to justify them.” 457 U.S. at 963; see aIs0 L TRIBE, 

AMERICAN INSTITUTIONAL LAW 5 16-3 (1978) (‘The Conceivable Basis Test”). 

It is not apparent that a “suspect classification” or “fundamental right” is 

burdened by the geographical classifications made by the contimring education 

exemption here. See, cg., Koremarsu v. United States, 323 U.S. 214 (1944) (race, 

ancestry as “suspect” criteria); SIr@u v. T?wmprwt, 394 U.S. 618 (1969) (right to 

interstate travel as “fundamental”). Although the numerous letters and briefs we 

have received in connection with your request have raised substantial concerns as 

to the “rational basis” for the statutory &ssifications in question,t in view of the 

rather minimal level of scrutiny it appears a court would apply under federal equal 

protection standards we cannot say that the geographical classitkations in the new 

continuing education exemption on their face run afoul of then federal equal 

protection clause. We think that resolution of this constitutional issue would 

require findings of fact, which we would be unable to make in an attorney general 

p. 206 
HonorableEddieCavaxos - Page 3 (DM-42) 

opinion See, eg , Attorney General Opinion JM-1267 (1990). only a court with its 

powers to take evidence on the relevant aspects of the real estate industry in Texas, 

aud the reasonableness in that context of the exemptions in question, could make 

such a determination. 

Texas’ constitutional counterpart of the federal equal protection clause, 

found in article III, section 1, provides that “[a]ll tiee men, when they form a social 

compact, have equal rights.” Modem Texas courts have generally held that no 

greater protection is afforded thereby than under the federal provision. See Texas 

Optometry Bd v. Lee Vibion Center, Ine, 515 S.W.2d 380 (‘TX. Civ. App.-Eastland 

1974, writ refd n.r.e.); Attorney General opinion JM455 (1986) (and authorities 

cited therein). 

We do find several earlier Texas cases which amrounce that statutory 

occupational regulations that classify solely on the basis of locale contravene article 

III, section 1. See Ex patte Dmibelbir, 109 S.W.2d 476 (T’ex. Grim. App. 1937) 

(municipal ordinance imposing license “fee” only on merchants engaged in business 

less than a year); Er porte B&cr, 78 S.W.2d 610 (Tex. Grim. App. 1934) and Linen 

Serv. Cwp. v. City ofAbilene, 169 S.W.2d 497 (T’ex. Civ. App.-Eastiand 1943, writ 

rePd) (municipal ordinances requiring license fee for businesses located outside 

municipality but doing business in municipality); Jackton v. State, 117 S.W. 818 

(Tex. Crim. App. 1908) (statute exempting barbers in, inter Olin, towns of 1.000 

population or less from license tax). We note first that these earlier opinions either 

included other grounds for their holdings or were directed to situations significantly 

different from the one here. (Jackron also struck down any license tax on barbers as 

violative of article VIII, section 1; the other cases cited involved exclusionary 

municipal ordinances.) More importantly, we believe a modem court would apply a 

different equal protection analysis, patterned on the contemporary federal 

approach, from that applied in these older cases. But again, and most significantly, 

while the above-mentioned opinions emanated from court proceedings in which 

evidence could be taken and findings of facts made as to the reasonableness of the 

provisions under attack, we cannot so take evidence or find facts in an attorney 

general opinion. Only a court could determine the validity, ti a ti article I, section 

3, of the geographical &ssXcations in question here. 

Similarly, the resolution of whether the geographical classifications are viable 

under the prohibition on “local or special laws” in article ITf, section 56, of the state 

constitution would require findings of fact on such matters as the numbers of 

brokers having their designated principal places of business in locales falling within 

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Honorable Eddie Cavazos - Page 4 (DM-4 2 1 

and without the pqpulation bracket created for purposes of the exemption and the 

problems experienced witb brokers’ competence in such locales2 Such findings 

couldonlybemadebyacomt. See,cg.,ExpvteSpring.586S.W2d482(Bx.Crim. 

App. 1978). 

Whether the use of geographical classifications in the 

exemption for certain real estate brokers in section 74 

subsections (e) and (f) of the Real Estate License Act, from the 

continuing education requirements for license renewal violates 

federal or state constitutional equal protection requirements or 

the state constitutional prohibition on local or special laws 

involves questions of fact that c8Mot be resolved in an attorney 

general opinion 

DAN MORALES 

Attorney General of Texas 

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WILL PRYOR 

First Assistant Attorney General 

MARYKELLER 

Exeadve Assistant Attorney General 

JUDGEZOLLIE STEARLEY (Ret.) 

Special Assistant Attorney General 

RENEAHIcK!s 

Special Assistant Attorney General 

MADELElNE B. JOHNSON 

Chair, Opinion Committee 

Prepared by William Walker 

Assistant Attorney General 

p. 209