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THEATTOWNEY GENERAL 

OFTEXA~ 

Honorable T.J. Rodgers Opinion No. C- 481 

District Attorney 

Young County Courthouse Re: Constitutionality of ChapGraham, Texas tsr 180, page 373, Acts, 

59th Legislature, codified 

Dear Mr. Rodgers: as Article 2094, V.C.S. 

You have requested the opinion of this office as to 

the constitutionality of an amendment to Article 2094, Vernon's 

Civil Statutes, which amendment was enacted by the 59th Legislature, and reads in part as follows: 

“Article 2094. Selecting names for jury wheel. 

"(a) Between the first and fifteenth days of 

August of each year, in each county specified in this 

Article, the tax collector, sheriff, county clerk and 

district clerk of the county, each in person or represented by one of his deputies, shall meet at the 

county courthouse and select from the list of qualified 

jurors of the county as shown by the tax lists in the 

tax assessor's office for the current year the jurors 

to serve the district and county courts of the county 

for the ensuing year, in the manner provided by law. 

*l(b) All population figures mentioned in this 

Article refer to the population according to the last 

preceding federal census. 

"(c) The provisions of subsection (a) of this 

Article apply to a county having a population of at 

least 46,000. 

" Id) The provisions of subsection (a) of this 

Article also apply to a county containing a city having 

a population of at least 18,000. 

-2275- 
Hon. T.J. Rodgers, page 2 (C- 481) 

"(e) The provisions of subsection (a) of this 

Article also apply to a county having a population of 

at least 16,700 and containing a city having a population of at least 8,000 but not more than 8,950. 

"(f) The provisions of subsection (a) of this 

Article also apply to a county having a population of 

at least 20,000 and containing a city having a population of at least 13,000 if the county is within a 

judicial district common to one or more other counties 

all of which employ the jury wheel system. 

"(9) The provisions of subsection (a) of this 

Article also apply to a county which has two or more 

district courts holding sessions within the county, 

unless the county has a population of less than 18,500 

and the judicial districts of which it is a part embrace 

more than two counties. 

"(h) The provisions of subsection (a) of this 

Article also apply to a county having a population of 

at least 19,000 but not more than 19,800, and containing a city having a population of at least 12,000 but 

not more than 12,500. 

"(i) The provisions of subsection (a) of this 

Article also apply to a county having a population of 

at least 21,000 and containing a city having a population of at least 7,000 but not more than 7.200." 

You advise us that young County fits the population 

bracket established in subsection (e) above, and desire the advice of this office before instituting the jury wheel system 

in Young County, for the reason that the quoted statute appears 

to be a local or special law, at least in part. Examination 

of the 1960 Federal Census figures leads us to believe that 

only three counties, Young, Titus and Kerr, out of the 254 

counties in this State, are included in the bracket established 

by subsection (e). 

Article III, Section 56, of the Texas Constitution, 

reads in part as follows: 

-2276- 
Hon. T.J. Rodgers, page 3 (C- 481) 

"The Legislature shall not, except asotherwise 

provided in this Constitution, pass any local or special 

law authorizing: 

II . . . 

II 

. . . Summoning or empanelling grand or petit 

j uries ; 

II II . . . 

The power of the Legislature to make classifications 

in prescribing the method of selecting juries is recognized 

in Northern Texas Traction Co. vs. Danforth, 116 S.W. 147 

(Tex.Civ.App., 1909~, error ref.), and a number of other cases. 

See Merkel vs. State, 75 Tex.Crim. 551, 171 S.W. 738 (1914), 

and Herrera vs. State, 78 Tex.Crim. 259, 180 S.W. 1097 (1915). 

But in order for the statute to escape the condemnation of being a local or special law, there must be a reasonable basis 

for the classification. Rodrisuez vs. Gonzales, 148 Tex. 537, 

540, 227 S.W.2d 791, 793 (1950), states the rule to be as 

follows: 

"The primary and ultimate test of whether a law is 

general or special is whether there is a reasonable 

basis for the classification made by the law, and 

whether the law operates equally on all within the 

class." 

In Miller vs. El Paso County, 136 Tex. 370, 374, 

150 S.W.2d 1000, 1001 (1941), the court differentiated a general law from a special law in the following language: 

"No&withstanding the-above constitutional provision LArt. III, Sec. 5g, the courts recognize in 

the Legislature a rather broad power to make classifications for legislative purposes and to enact laws 

for the regulation thereof, even though such legislation may be applicable only to a particular class 

or. in fact, affect only the inhabitants of a particular locality: but such legislation must be intended 

to apply uniformly to all who may come within the 

classification designated in the Act, and the classi- 

-2277- 
Hon. T.J. Rodgers, page 4 (C- 481) 

fication must be broad enough to include a substantial class and~must be based on characteristics legitimately distinguishing such class 

from others with respect to the public purpose 

sought to be accomplished by the proposed legislation. In other words, there must be a substantial reason for the classification. It must 

not be a mere arbitrary device resorted to for 

the purpose of giving what is, in fact, a local 

law the appearance of a general law." 

We think this further language in the Miller case 

is applicable here: 

"The peculiar limitations employed by the Legislature in this instance to segregate the class to 

be affected by the legislation not only bears no 

substantial relation to the objects sought to be 

accomplished by the Act, but the purported class 

attempted to be so segregated is, in fact, not a 

class distinct in any substantial manner from 

others in this State." H. at 375, 150 S.W.2d at 

1002. 

In the light of the foregoing cases, we are of the 

opinion that subsection (a) of the amendment to Article 2094, 

Vernon's Civil Statutes, is a local or special law and is 

therefore.unconstitutional. We must also observe that subsections (h) and (i) are subject to the same objections and 

are also unconstitutional. See Attorney General's Opinions 

R-2382 (1951); C-227 (1964): C-220 (1964); C-473 (1965). 

We note that the statute in question does not contain a severability clause. Of course, this in itself does 

not require that the entire Act fall, since such a severability clause provides merely a rule of construction to aid 

in determining the legislative intent. Citv of Houston vs. 

State em rel Citv of West Universitv Place, 171 S.W.2d 203 

(T~.Civ.App., 1942, reversed on other grounds in 142 Tex. 

190, 176 S.W.2d 928). The invalid portions of our present 

statute are not integral parts of the statute and their removal will have no effect upon the operation of the remaining portions. 

-2278- 
Hon. T.J. Rodgers, page 5 (C- 481) 

In accordance with the foregoing, it is the,opinion 

of this office that Article 2094, Vernon's Civil Statutes, as 

amended by the 59th Legislature, contains three subsections, 

(e), (h) and (i), which are unconstitutional as being local 

or special laws. It is further the opinion of this office 

that the aforementioned subsections are severable from the 

remainder of the statute, and that the statute does not fall 

in its entirety. 

This opinion is not to be construed as holding that all 

of the remaining provisions of Article 2094 are constitutional. 

Rather, this opinion is directed solely to those provisions of 

the statute which are clearly unconstitutional in the application of population brackets. 

SUMMARY 

Subsections (e), (h) and (I) of Article 

2094, V.C.S., as amended by the 59th Legislature, are unconstitutional as being local 

or special laws. 

The aforementioned subsections (e), (h) 

and (i) are severable from the remainder of 

the statute. 

Yours very truly, 

WAGGONBRCARR 

Attorney General 

Assistant 

MLQ:ra 

APPRGVRD; 

OPINION COMMITTEE 

W.V. Geppert, Chairman 

Roy Johnson -2279- 

John Banks 
___ . 

Hon. T.J. Rodgers, page 6 (C- 481) 

Robert Lemens 

APPR0IE.D FOR THE ATTORNEY GENERAL 

By: T.B. Wright 

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