The Honorable Dan Kubiak State House of Representatives Room 154, State Capitol Austin, Texas 78767 Opinion No. H- 393
Re: Validity of

Article 2676a. V. T. C.S. Dear Representative Kubiak: On behalf ofthe House Education Committee you have asked whether Article 2676a, V. T. C.S., is prohibited by Sec. 56of Article 3of the Texas Constitution as a local or special law. Article 2676a provides in part:

Section 1. From and after the effective date ofthis Act in any county in this State having a population of not less than one hundred thousand (100.000) and not more than one hundred hventy thousand (120,000). according to the last preceding federal census, the general management and control ofthe public free schools and high schools in each county unless otherwise provided by law shall be vested in five (5) county school trustees elected from the county, one ofwhom shall be elected from the county at large by the qualified voters ofthe county and one from each commissioners precinct by the qualified voters of each commissioners precinct, who shal1 hold office for a term oftwo (2) years. Section 7is applicable only to count.ies within the population bracket defined above, and provides:

sec. 7. The county school trustees shall not detach terri.tory from any i,ndependent school district in such county and annex such territory to another independent school district without the prior consent ofthe school trustees of the

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district from which such territory is being detached as well as the prior consent ofthe school trust.ees ofthe district towhich such detached terri.tory is to be annexed. Section 56ofArticle 3provides: The Legislature shall not, except as otherwise provided in this Constitution, pass anylocal or special law, authorizing:

. . . Regulating the affairs of counties, cities, towns, wards or school districts:

. . . Regulating the management ofpublic schools, the building or repairing of school houses, and the raising ofmoney for such purposes. Section 7prevents county school trustees in counties with populations between l@O,OOOand 120,000 from detaching school lands from an independent school distri,c? without the prior approval ofthe trustees ofthe independent school district. The,re is nothing unreasonable in this requirement. It is, however, mole restrictive than the general law applicable to all other counties ofthe state. See Sec. 19.261(d). Texas Education Code, V. T. C.S. Howewr, we find it impossibl~e to esc,ape the conclusion that Article 2676a is intended to apply specially and exclusively to Brazoria County. When first enacted by the Legislature in 1963the population classification wa,s se, at 75,000 t.o80.000 persons. 1.960Federal, Census:’ Accordi,ng to the only Rrazoha Counly qualified by population under the statut.e. By 1970 Brazoria Cou”ty has apopulation of 1,08,312persons. Consequently, Brazoria County had moved out ofthe original classification and other counties had moved irlto it. In 1971the Legislature amended Sec. 1of Article 2676a by changing the population classification to include only counties with populations between 100.000 and 120,000 persons. Even though the bracket is expanded, Brazoria County is again the only county covered by the Article’s special provisions.
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The Honorable Dan Kubiak, page 3 (H-393)

The ti.tle ofthe amending act of 1971leaves no doubt as to the reason for the change. It provides:

An Act amendi.ng laws pertaining to the affairs of counties, cities, and school districts in order to recognize the effect of the recent federal census; . . . (Acts 1971, 62nd Leg., ch. 542, p.1817, amendi,ng Article 2676a,, V. T. C.S., in Sec. 71, p. 1833). R As we have said in previous Attorney General Opinions, Texas courts permit statutes t:odefine the scope oftheir application by: population classifications which are open-ended, that is, not confined absolutely to certain counties or cities. However, the distinction made between counties or cities within the population bracket and those outside ofit must be based on a real and sub: stant.ial difference that is reasonably related to variations in population. Attorney General Opinion H-8 (1973). The theory is that even though the statute is limited in scope it will apply to any county or city moving into the population classification in the future, and will cease to apply to counties or cities moving out ofthe classification as changes in;pcpulat~ion are reflected in subsequent federal census reports. This is the purpose and intent of statutory language referring to the “last precedi.ng federal census. ” Obviously, very little is left to the theory i.f. after each federals census, the Legislature adjusts a so-called open-ended populai:ion classification to cancel out the effect ofthe new census on the scope of aparticular statute. In Citv of Fori Worth v. Bobbitt, 36S.W. 2d 470 (Tex. 1931)a statute conferred special benefits upor?al.1cities within apopulation classi.fication according to the 1920 federal census. The court held that the statil!.e was aprohi.bited speci.al, l.awwithout discussing the necessity or reasonableress ofthe l.aw si.nce it found that Fort Worth was the only r,iiy tow’hic11it-cou1.dever appl.:;. Likewi,se, i.nFritter v. West, 65S.W. 2d 4?4 (Te:<. Cic-.ApnagSan Antonio 1933, err. ref ’d. ) no consi,derat:ion was g%ve.nto the wasonableness ofa statute abolishing a county-wide common school d!st ci:t sir,,:c’tht~st:atute express1.y applied on1.yto Kir.nq Cou~tv. The same cor?clilr.ior, must be rra.iwd under Section S6ofArticle 3, when it is apparent, as it.is ht~re, tJ:Jaf. a rwmin,all,yopen-ended bracketThe Honorable Dan Kubiak, page 4 (H-393)

is actually intended to include only Brazoria County. By amending the population bracket ofArticle 2676a in 1971so that it again applies only to Brazoria County, and excludes every other county, the Legislature indicates to us that the population classification is an arbitrary device that is merely used to give what is in substance a local or special law, the form of a general law. Bexar County v. Tyman, 97S.W. 2d 467 (,Tex. 1936). In our opinion, the courts will hold Article 2676a, V. T. C.S., to be unconstitutional. SUMMARY

Article 2676a. V. T. C.S., is a special or local law pertaining to the affairs of one county, and is unconstitutional and void under Section 56ofArticle 3 ofthe Texas Constitution. Very truly yours,



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L. HILL // Attorney General of Texas A

LAR \F. YOR , & - ‘rst A sistant 

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DAVID M. KENDALL, Chairman Opinion Committee

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