Honorable Wallace E. Dingus Opinion No. M-916 

County Attorney 

Coleman Count!? Courthouse Re: Constitutionality of House 

Coleman, Texas 76:‘34 Bill 1089, Acts 62nd Leg., 

R.S. 1971, requiring certain 

county officials to report 

and pay to the county certain 

monies received by them from 

the operation of a private 

Dear Mr. Dingus: business on public property. 

You have requested our opinion on the constitutionality 

of House Bill 1089, Acts 62nd Legislature, R.S. 1971. Sections 

1 and 2 of House Bill 1089 provide: 

"Section 1. No county official, his agents, 

servants, deputies, or employees shall operate a 

private business on public property unless he 

shall: 

"(a) keep an accurate and detailed record 

of all monies received and disbursed by him; and 

"(b) file with the county auditor, or the 

auditing authority of the county, a report covering all of said receipts and disbursements during 

the immediately preceding calendar year on or 

before January 1 of each year; and 

"(Cl make available to the county auditor all 

records of said receipts and disbursements, 

"provided however that this Act shall not 

apply to compensation received by justices of the 

peace and official court reporters for performance 

of an act not required by law of such official. 

'Sec. 2. Any and all monies received and required to be reported under Section 1 of this Act 

together with any interest thereon which has been 

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Hon. Wallace E. Dingus, page 2 (M-916) 

paid by any financial institution as a result of 

the deposit of said funds over and above any disbursements required to be reported under Section 

1 of this Act shall be delivered to the county 

treasurer at the time of filing said report or 

at such other regular intervals throughout the year 

as may be prescribed by the county auditor or 

auditing authority of the county, provided, however, that this section shall not be applicable 

to any person, firm or corporation operating or 

doing business under or bx virtue of any written 

contract with the county. 

Sections 3 and 4 provide the method for enforcing the provisions 

of the Act. 

In construing the provisions of Section 3 of Article I 

of the Constitution of Texas and the Fourteenth Amendment to the 

Constitution of the United State !S, it was held in Rucker v. State, 

342 S.W.2d 325, 327 (Tex.Crim. 1961): 

II 

. . . As these provisions have been construed by the highest courts of this state as well 

as by the Supreme Court of the United States, a 

state law is not repugnant to either constitutional 

provision so long as unequal treatment of persons 

is based upon a reasonable and substantial classification of persons. Unequal treatment of persons 

under a state law which is founded upon unreasonable and unsubstantial classification constitutes 

discriminatory state action and xiolates both the 

state and federal constitutions. (Citing numerous 

authorities). 

The Court concluded: 

'There appears no reasonable and substantial 

classification of persons which justifies the 

imposition of a $25 fine upon peddlers, salesmen, 

and solicitors and a $200,,fine upon all other 

persons for the same act. 

We believe the same principle is applicable to the provisions of House Bill 1089. There appears no reasonable or substantial classification of persons which justifies requiring certain 

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Hon. Wallace E. Dingus, page 3 (M-916) 

county officials to report and pay to the county monies received 

by them in the operation of a private business on public property 

and not require other officials to do likewise. 

It is therefore our opinion that the provisions of House 

Bill 1089 violate the provisions of Article I, Section 3 of the 

Constitution of Texas and the Fourteenth Amendment to the Constitution of the United States. 

Section 17 of Article I of the Constitution of Texas 

provides: 

‘Sec. 17. No person's property shall be 

taken, damaged or destroyed for or applied to 

public use without adequate compensation being 

made, unless by the consent of such person; and, 

when taken, except for the use of the State, such 

compensation shall be first made, or secured by 

a deposit of money; and no irrevocable or uncontrollable grant of special privileges or immunities, shall be made; but all privileges and 

franchises granted by the Legislature, or created 

under its authority shall be subject to the control thereof." 

Section 19 of Article I of the Constitution of Texas provides: 

"Sec. 19. No citizen of this State shall be 

deprived of life, liberty, property, privileges or 

immunities, or in any manner disfranchised, except 

by the due course of the law of the land." 

Section 17 of Article I of the Constitution of Texas 

has reference to the exercise of the right of emminent domain, 

while Section 19 of Article I constitutes a limitation on the 

exercise of the police power by the State. Livingston v. Ellis 

County, 68 S.W. 723 (Tex.Civ.App. 1902, no writ); State v. Richards, 

166 301 S W 2d 597 (1957); State v. City of Austin, lb0 T 

$%?%i S.WI2d 737’(ig6o). 

ex. 

The test that should be used in determining whether a 

statute is an arbitrary or unreasonable exercise of police power 

is stated in Houston & T.C. Ry, Co. v. City of Dallas, 98 Tex. 

396, 84 S.W. 648 (1905), as follows: 

"The power is not an arbitrary one, but has 

its limitations. It is commensurate with but 

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Hon. Wallace E. Dingus, page 4 (M-916) 

does not exceed the duty to provide for the real 

needs of the people in their health, safety, comfort, and convenience as consistently as may be 

with private property rights. As those needs 

are extensive, various, and indefinite, the power 

to deal with them is likewise broad, indefinite, 

and impracticable of precise definition or limitation. But as the citizen cannot be deprived of 

his property without due process of law, and as 

a privation by force of the police power fulfills 

this requirement only when the power is exercised 

for the purpose of accomplishing, and in a manner 

appropriate to the accomplishment of, the purposes 

for which it exists, it may often become necessary 

for courts, having proper regard to the constitutional safeguard referred to in favor of the 

citizen, to inquire as to the existence of the 

facts upon which a given exercise of the power 

rests, and into the manner of its exercise, and 

if there has been an invasion of property rights 

under the guise of this power, without justifying 

occasion, or in an unreasonable, arbitrary, and 

oppressive way, 

protection which 

to give to the injured parky that 

the Constitution secures. 

Applying the foregoing principles to the provisions of 

House Bill 1089, it is our opinion that its provisions ;at;zt 

the proper exercise of the police power of the State. 

exercise of the police power of the State, the Legislature of 

course could prohibit the use of public buildings by private 

businesses and prohibit the conduct of private business in 

public offices. In exercising such power, however, the Legislature must treat every private business alike and not arbitrarily 

apply such provisions to only a few unless there is a reasonable 

basis for the classification. In the instant case it does not 

prohibit the use of public buildings by private businesses. 

See Tarrant County v. Rattikin Title Co., 199 S.W.2d 269 (Tex. 

Civ.App. 1947), recognizing the authority of the commissioners 

court-to furnish space in the courthouse-to an abstract company 

in which to conduct its business. It demands forfeiture of 

monies without adjudication and does not treat all public officials 

or private businesses alike. 

It is therefore our opinion that the provisions of House 

Bill 1089, Acts 62nd Legislature, R.S. 1971, are unconstitutional, 

being in violation of Sections 3 and 19 of Article I of the Constitution of Texas and the Fourteenth Amendment to the United States 

Constitution. 

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Hon. Wallace E. Dingus, page 5 (M-916) 

SUMMARY 

House Bill 1089, Acts 62nd Leg., R.S. 1971, 

requiring certain county officials to report and 

pay to the county certain monies received by them 

from the operation of a private business on public 

nroverts. is unconstitutional. beina in violation 

bf Sections 3 

tion of Texas 

United States 

and 19 of Articie I o? the Constituand the Fourteenth Amendment to the 

Prepared by John Reeves 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

Kerns Taylor, Chairman 

W. E. Allen, Co-Chairman 

J. C. Davis 

Larry Craddock 

Jim Broadhurst 

Roland Allen 

MEADE F. GRIFFIN 

Staff Legal Assistant 

ALFRED WALKER 

Executive Assistant 

NOLA WHITE 

First Assistant 

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