Eon. John C. Xarburger 

county Attorney 

Opinion Bo. v-386 

Fayette County Be: Constltutlonallty of 

La Grange, Texas IL&.~;7; A~tb or 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 1, 95,000 1 lnhabltants 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 combined 
i 

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

population of not more than sixtytwo thousand (62,000) inhabitants according to such 

last preceding Federal Census, one (1) or 

more counties In which districts border on 

the International Boundary between the 

United States and the Republic of 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 composing such 

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 P 

or 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) 

ìëBa o a ua e pop ula tio n a s l besls for 

olaaslfioatlon haa been sustained b7 the 

co&t8 ln rerpeot to leglsfatlon on certain 

subjeots, It has been aasimed, erroneously, 

that population braokets ~111 serve in all 

Instancea to avoid the oondemnatlon of the 

differeiices in population afford uo rstlonal 

basis for dlscrimInating betveen groups of the 

same natural clam, claasiiicatlon on the 

ba8i8 Of pOpti8tIon has been termed arbitrary 

selectlon, and the lav haa been held to be 

special and local. 

(Rmphasis ours) 

Randolph v. Sthte, supra." 

For additional authorities, see HIllor, 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; Supreme Lodge 

Benevolent ~ss'n. v. Johnson, g8 Tex. 1, 81 S.W. 18; 

Smith v. State, 49 S.W. (26) 739; Rand01 h v. State, 36 

S.Y. (26) 464; Fritter v. Weat, 65 9.W.~ P 26) 414, writ 

refused; State v. Hall, 76 S.Y. (26) 880; Wood v. MsPfa 

Ind. School Diet., 123 3.W. (26) 429; Leonard v. Road 

Maintenance Dlst. 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 county having a 

population of 100,000 or over the judges of~the several 

district court8 and crlmIna1 district court8 of such county, 

together vIth the county judge of such county, are.constItutcd s juvenile board, and fixes the annual salary of each 

of such district judges as members of said Board at $1500 

In addition to that paid the other bistrlct judges of the 

State. There vas no couuty of 100,000 popul8tion or over 

oaitted, and the court held that this vas a reasonable 

claB8Iflcrtion. It is of co10n Lnovledge that In the 

larger olties and counties of our State juvenile delinquency is more prevalent than in the smaller tovne 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 counties of the State. 

Hovever, the olassIfIcatIon8 contained In the provisions vhich were added to Artlole 5139 by H. B. 257 

are not based on populstlon or any other condition of 

the countiee alone, but are based upon population of 

judICla1 districts and other condltlons which lie outBid0 the boundaries of the counties affected. The 

classlflcatlona do not bear a reasonable relation to 

the object8 and purposes of the lav and nre not founded upon ratlonal differences in the neoessltles or 

conditions of groups subjected to different laws. 

It is our further oplnlon that even If the 

clas3Iflcations should bear a reasonable relation to 

the object8 or purposes of the law, they me e@bItiw 

because there are numeroue oountles VIthIn this State 

with a much greater populetlon than those Included In 

the provisions vhIch were added to Article 5139 by 

II. B. 257 and coming vIthIn the same category vhIch 

have no such juvenile board. Belpg arbitrary clasalficatlons, the Bill I3 ln substance a local and special law In violation of 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 juvenile boards 

In certain special counties within certain 

brackets, Is a local and special law with 

arbitrary clas3IflcatIon3 and therefore unconstItutIonal. Art. III, Sec. 56, Texas 

Constitution. 

SR:dja Assistant