Eon. John C. Xarburger county Attorney 

### Opinion Bo. v-386 Fayette County Be: Constltutlonallty of La Grange, Texas 

### IL&.~;7; 

## A~tbor the

., relative to county juvenile boards In certain counties. Dear Sir:
You have requested this 

## 0rrm to determlne the cdnstltutlonality of H. B. 

### 257, Acts o? the 50th Legislature, p. 

### 560,~ Vernon’s Texas’ SedsioiLaw Service. H. B. 257 Is an Act amending Article 5139, V.C.S., so as to create Couqty Juvenile Boards In certain counties. The provisions vhlch were added to Article 5139 by II. B. 

### 2.57 6re 

## as r0ii0ws:

“In any county having a population 

## 0r less than seventy thousand (70,000) inhabltants according to the lest preceding Federal Census, which county Is Included in, and forms
a part of a Judicial District of aeven (7) or more counties having a combined populstion of more than fiity-two thousand (52,000) inhsbitank, or which county is included in and forms
a part of a Judicial District or five 

### (5) or more counties having a combined population of
more than seventy-two thousand 72 000 and lesa than ninety-five thousand 95,000 lnhabl1, 1 tants according to the last preceding Federal Census, or which county Is included In and forms a part or a Judicial District of five 

### (5) or more counties, in one (1) or more 

## or, which counties the civil and criminal jwisdiction vesting by General Law in the County Court has been or hereafter shell be transferred to the exclusive jurisdiction of the District Court of such county or counties, and having a comblned~populationln such Judicial District of more than thirty-five thouaand 

### (35,- 000) inhabitants, according to the last preceding Federal Census; or which county is included in and forms a $art of a Judicial District composed of four ( ) counties having a combinedi



### Hon. John C. Wsrburger - Page 2 (v-386)

populationof not more than sixtytwo thousand (62,000)inhabitantsaccordingto such last precedingFederal Census,one (1) or more counties In which districts border on 

### the InternationalBoundary between the United States and the 

### Republicof Mexico; the Judge of such Judicial District, together with the County Judge of such county are hereby constituted a Juvenile Board for such county. 

### The members composingsuch Juvenile Board in each such county shall each be allowed additional compensation of not less than One Hundred Dollars ($100)

and not more than Three Hundred 

### x:;1~~4300) paid in twelve 

### Por annum,which shall be

12) equal installments out of either the general fund or the jury fund
or such county, such additional compensation to be fixed by the Commissioners Court of such county. ”
Article III, Section 

### 56, provides in part:

‘The Legislature shall not, except as othervise provided in this Constitution, pass any local or special law,

. . .

“Regulating the affairs of counties.

. .,

“Creating ofrlces, or prescribing the powers and duties of officers, in counties.

. .”
Article V, Section 

### 1, provides:

“The judicial power of this State 

### shall be vested in one Supreme Court, in **COUrta Of**  Civil Appeals, in a Court of Criminal Appeals, in District Courts, in County Courts, In Commissioners’ Courts, in Courts of Justlces of the Pesce, and in such other courts as may be provided by law. II

. . .

“The Legislature may establish such other courts as it may deem necessa.ry and prescribe the jurisdiction 

### and organization 

### thereof,and may conform the jurisdiction of tht District and other inferior courts thereto... Eon. John C. Marburger - Page 

### 3 (V-386) '

It may be contended that this Act is governed by Article V, Section 1 of the Texas Constitution, and therefore is not subject to the provisions of Article III, Section 

### 56, (See Harris County v. Crooker, 224 S.W. 792, affirmed 112 Tex. 

### 459, 248 S.W. 652; Garvey v. Matthews, 79 S.W. (2d) 335, error refused; Jcnes v. Anderson, 189 S.W. (26) 65, error refused. and Tom Green County v. Proffit, 95 S.W. (26) 8451; however, the Supreme Court, citing numerous authorities of analogous situations, held in the case of Jones v. Alexander, 59 S.W. (26) 1380, that the county juvenile boards do not have, nor do they exercise, any judicial power or function.

It was further held that the Legislature, when authorizing additions1 salaries to be paid to the members of juvenile boards for such services, may take into consideration the population and size of the county,~ its taxable values and general conditions existing therein, but in any event, the cla.ssification must be based upon a real distinction. 171, 54 S.W. 343. See 81~0 Clark v. Finley, 93 Tex. In view of the foregoing, it is apparent that R. B. 257 is subject to the provisions of Article III, Section 

### 56.

Thereforz, the question for declzign iz whether the classifications present a reasonable relation to the objects and purposes of the law snd are founded upon rationsl differences in the necessities and conditions of the countlez effected by the Bill.

In the csze of County of Bexar v. Tynen, 97 S. W. (2d) 467, the Supreme Court of Texas announced the principle which controls the matter herein:

"votwithztending it is true that the Legislature may ola.szify counties upon the basis of population for the purpose of fixing compensation of county and precinct officers, yet in doing so the classlfication must be based upon a real distinction, and must not be arbitrary or R device to give what is in substance a local OF zpecial law the form of a~generel law.

We quote the following cram Oakley v. Kent, 181 S.W. (26) 919:. / i



### Hon. John 

### C. lIarburger - ?age 4 (V-386)ìë Baoauae population as l 

### besls for olaaslfioatlon

haa been sustained b7 the co&t8 ln rerpeot 

### to leglsfatlonon certain subjeots,It has been aasimed,erroneously, that population 

### braokets~111 servein all Instanceato avoid the oondemnatlon of the

differeiices

in populationafforduo rstlonal basis for dlscrimInating betveengroups 

### of the same naturalclam, claasiiicatlon on the ba8i8 Of pOpti8tIonhas **been** 

### termedarbitrary selectlon,

and the lav haa been held to be specialand local. (Rmphasisours) Randolphv. Sthte, supra."

For additionalauthorities,seeHIllor, et al, 0. El Paso County (Su

7' Ct.) 150 S.Y. (26)1000; Xx ?arte App. 159 S.U. (26) 126; Jameson 

### v. Smith, 520; Clt 26) 470, 3;of Ft. 

### Uorth v. Bobbitt,121 Tex.

1 S.Y. (26) 228; SupremeLodge Benevolent~ss'n.v. Johnson, g8 Tex. 1, 81 S.W. 18; Smith v. State, 49 S.W. (26) 739; Rand01h v. State, 36 S.Y. (26) 464; Fritter v. Weat, 65 9.W.~ P26) 414,writ refused; State v. Hall, 76 S.Y. (26) 880; Wood v. MsPfa Ind. SchoolDiet., 123 3.W. (26) 

### 429; Leonardv. Road MaintenanceDlst. Ro. 1, 187 Ark. 599, 61 S.W. **(26)** 

### 70.

In the case of Jones v. Alexander,supra,the
**CoUPt VaB**  **PSBSiIlg Upon**  

### the **~OllStitUtiOMlft~ Of**  **&tiOlS** 

### 5139, V.C.S.,which provides that In a 

### countyhaving a populationof 100,000 or over the judgesof~the several districtcourt8and crlmIna1districtcourt8of such county, togethervIth the county judge of such county,are.constItutcd s juvenile

board, and fixes the annual salaryof each of such district judgesas members of saidBoard at $1500 In additionto that paid the otherbistrlct judgesof the State. There vas 

### no couuty of 100,000popul8tionor over oaitted,and the courtheld that this vas a reasonable claB8Iflcrtion. It is of co10n Lnovledgethat In the larger oltiesand countiesof our State juveniledelinquency is more prevalentthan in the smallertovne and countfis3, Therefore,there oould be a reason for having such ;:

... 

### Bon. John 0. Narburger'-Page 5 +386)

a Board In all of the large countiesof the State. Hovever, the olassIfIcatIon8 containedIn the provisionsvhich were added to Artlole 5139 by H. B. 257 are not based on populstlonor any other conditionof the countieealone, but are based upon populationof 

### judICla1districts and other condltlons which lie outBid0 the boundariesof the countiesaffected. The classlflcatlona

do not bear a reasonablerelation to the object8and purposes 

### of the lav and nre 

### not founded upon 

### ratlonal differences 

### in the neoessltlesor conditionsof 

### groups subjectedto different laws.

It is our further oplnlonthat even If the clas3Iflcationsshouldbear a reasonablerelation to the object8 or purposes 

### of the law, they me e@bItiw because there are numeroue oountlesVIthIn this State with a much greater populetlonthan those Included In the provisionsvhIch were 

### added to Article 5139 by II. B. 257 and comingvIthIn the same categoryvhIch have no such juvenileboard. Belpg arbitrary clasalficatlons,the Bill 

### I3 ln substancea local and special law In violationof Article III, Section 56, of


### our State Constitution. It 13 our opinion that the new portion of Article 5139 which was edded by B. B. 257 is unconstItutIonal

and VOIU.

SUMMARY

H. B. 257, Regular Session, 50th Legislature,providing county juvenileboards In certain special countieswithin certain 

### brackets, Is a local and special law with arbitraryclas3IflcatIon3 and thereforeunconstItutIonal. Art. III, Sec. 56, Texas 

### Constitution.

SR:dja Assistant