HonorableWallace E. Dingus OpinionNo. M-916

County Attorney Coleman Count!?

Courthouse Re: Constitutionalityof 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 privatebusiness on public propertyunless 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 disbursementsduring the immediatelypreceding 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, "providedhowever that thisAct shall not apply to compensationreceived 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 allmonies received and required to be reportedunder Section 1 of this Act togetherwith any interest thereonwhich has been

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paid by any financial institutionas a result of the deposit of said funds over and above any disbursements required to be reportedunder Section 1 of this Act shallbe delivered to the county treasurer at the time of filing said report or at such other regular intervals throughout the year as may be prescribedby the county auditor or auditing authority of the county,provided,however, that this section shallnot be applicable to any person, firm or corporationoperating or doing businessunder or bx virtue of any written contractwith 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 FourteenthAmendment 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 provisionshave been construedby 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 substantialclassification of persons. Unequal treatment of persons under a state lawwhich is foundedupon unreasonable and unsubstantial classificationconstitutes discriminatory state action and xiolatesboth the state and federal constitutions. (Citingnumerous authorities).
The Court concluded:

'Thereappears no reasonable and substantial classificationof personswhich justifiesthe imposition of a $25 fineupon peddlers, salesmen, and solicitorsand a $200,,fine upon all other persons for the same act.

We believe the sameprinciple is applicable to the provisions of House Bill 1089. There appears no reasonable or substantial classificationof persons which justifiesrequiring certain

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county officials to report and pay to the countymonies received by them in the operation of a privatebusiness 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'sproperty shallbe taken, damaged or destroyed for or applied to publicuse without adequate compensationbeing made, unless by the consent of such person; and, when taken, except for the use of the State, such compensation shallbe firstmade, or securedby a deposit ofmoney; and no irrevocableor uncontrollablegrant of specialprivileges or immunities, shallbe made; but all privileges and franchisesgrantedby the Legislature, or created under its authority shallbe subject to the control thereof."
Section 19 of Article I of the Constitution of Texas provides:

"Sec. 19. No citizen of this State shallbe 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 Constitutionof Texas has reference to the exercise of the right of emminent domain, while Section 19 of Article I constitutesa limitationon 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 shouldbe used in determiningwhether a statute is an arbitrary or unreasonable exercise of policepower is stated in Houston & T.C. Ry, Co. v. City of Dallas, 98 Tex. 396, 84 S.W. 648 (1905),as follows:

"Thepower is not an arbitrary one, but has its limitations. It is commensuratewith but

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does not exceed the duty to provide for the real needs of the people in their health, safety,comfort, and convenienceas consistentlyas may be with private property rights. As those needs are extensive, various,and indefinite,the power to deal with them is likewisebroad, indefinite, and impracticableof precise definition or limitation. But as the citizen cannotbe deprived of his propertywithout due process of law, and as a privation by force of the police power fulfills this requirement onlywhen the power is exercised for the purpose of accomplishing,and in a manner appropriate to the accomplishmentof, the purposes for which it exists, itmay oftenbecome necessary for courts,having proper regard to the constitutional safeguardreferred to in favor of the citizen, to inquire as to the existence of the factsupon which a given exercise of the power rests, and into themanner 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 oppressiveway, protectionwhichto give to the injuredparky that the Constitution secures. Applying the foregoingprinciples 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 publicbuildingsby private businesses and prohibit the conduct of private business in public offices. In exercising suchpower, however, the Legislaturemust treat every private business alike and not arbitrarily apply such provisions to only a fewunless there is a reasonable basis for the classification. In the instant case it does not prohibit the use of public buildingsby private businesses. See Tarrant County v. RattikinTitle Co., 199 S.W.2d 269 (Tex. Civ.App. 1947), recognizing the authority of the commissioners court-to furnish space in the courthouse-toan abstract company in which to conduct its business. It demands forfeitureof 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 violationof Sections 3 and 19 of Article I of the Constitution of Texas and the Fourteenth Amendment to theUnited States Constitution. -4468-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 certainmonies received by them from the operation of a private business on public nroverts. isunconstitutional.beina in violation bf Sections 3 tion of Texas United States and 19 of Articie I o? the Constituand the FourteenthAmendment to the

Preparedby 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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