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### THEATTOWNEY 

### GENERAL OFTEXA~

Honorable T.J. Rodgers OpinionNo. C- 481 DistrictAttorney 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 constitutionalityof an amendment to Article 2094,Vernon's Civil Statutes,which amendmentwas enactedby the 59th Legislature, and reads in part as follows:

“Article 2094. Selectingnames for jury wheel. "(a) Between the first and fifteenthdays of August of eachyear, in each county specified in this Article, the tax collector, sheriff, county clerk and district clerk of the county, each in person or representedby one of his deputies, shall meet at the county courthouse and select from the list of qualified jurors of the county as shownby the tax lists in the tax assessor's office for the currentyear the jurors to serve the district and county courts of the county for the ensuingyear, in the manner providedby law. *l(b)All population figuresmentioned in this Article refer to the populationaccording to the last preceding federal census. "(c) The provisions of subsection (a) of this Article apply to a countyhaving 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.

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"(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 iswithin a judicial district common to one or more other counties all ofwhich employ the jury wheel system. "(9) The provisions of subsection (a) of this Article also apply to a countywhich has two or more district courtsholding sessionswithin the county, unless the county has a population of less than 18,500 and the judicial districts ofwhich 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 19,000but not more than 19,800, and containing a city having a population of at least 12,000but not more than 12,500. "(i) The provisions of subsection (a) of this Article also apply to a countyhaving a population of at least 21,000 and containing a city having a population of at least 7,000but not more than 7.200." You advise us thatyoung County fits the population bracket established in subsection (e)above, and desire the advice of this officebefore instituting the jury wheel system inYoung County, for the reason that the quoted statute appears tobe a local or special law, at least in part. Examination of the 1960 Federal Census figures leads us tobelieve that only three counties,Young, Titus and Kerr, out of the 254 counties in this State, are included in thebracket established by subsection (e).

Article III, Section 56, of the Texas Constitution, reads in part as follows:

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"TheLegislature shall not, except asotherwise provided in this Constitution,pass any local or special law authorizing: II

. . .

II

. . . Summoning or empanelling grand or petit juries; II II

. . . The power of the Legislature tomake 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, theremust be a reasonablebasis for the classification. Rodrisuezvs. Gonzales, 148 Tex. 537, 540, 227 S.W.2d 791, 793 (1950),states the rule tobe as follows: "Theprimary and ultimate test of whether a law is general or special iswhether there is a reasonable basis for the classificationmade 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 differentiateda general law from a special law in the following language:

"No&withstandingthe-above constitutionalprovision LArt. III, Sec. 5g, the courts recognize in the Legislature a ratherbroad power to make classifications for legislativepurposes and to enact laws for the regulation thereof, even though such legislationmay be applicable only to a particular class or. in fact, affect only the inhabitants of a particular locality:but such legislationmust be intended to apply uniformly to all who may come within the classificationdesignated in theAct, and the classi- -2277-Hon. T.J. Rodgers, page 4 (C- 481)

ficationmust be broad enough to include a substantial class and~mustbe based on characteristics legitimatelydistinguishingsuch class from otherswith respect to the public purpose sought tobe accomplishedby the proposed legislation. In otherwords, theremust be a substantial reason for the classification. It must not be a mere arbitrary device resorted to for the purpose of givingwhat is, in fact, a local law the appearance of a general law."
We think this further language in the Miller case is applicablehere:

"Thepeculiar limitationsemployedby the Legislature in this instance to segregate the class to be affectedby the legislationnot onlybears no substantialrelation to the objects sought to be accomplished by theAct, but the purported class attempted tobe so segregated is, in fact, not a class distinct in any substantialmanner from others in this State." H. at 375, 150 S.W.2d at 1002.
In the light of the foregoingcases,we are of the opinion that subsection (a) of the amendment toArticle 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 objectionsand are also unconstitutional. SeeAttorney 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 entireAct fall, since such a severability clause providesmerely a rule of construction to aid in determining the legislative intent. Citv of Houston vs. State em rel Citv ofWest 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 integralparts 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 accordancewith the foregoing, it is the,opinion of this office thatArticle 2094,Vernon's Civil Statutes, as amendedby the 59th Legislature, contains three subsections, (e), (h)and (i),which are unconstitutionalas being local or special laws. It is further the opinion of this office that the aforementioned subsectionsare severable from the remainder of the statute, and that the statute does not fall in its entirety.

This opinion is not tobe construed as holding that all of the remaining provisions ofArticle 2094 are constitutional. Rather, this opinion is directed solely to those provisions of the statutewhich are clearly unconstitutional in the application of populationbrackets.

SUMMARY Subsections (e), (h)and (I) of Article 2094, V.C.S., as amendedby the 59th Legislature, are unconstitutionalasbeing 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 THEATTORNEY GENERAL By: T.B.Wright

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