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 of the House Education Committee you have asked 

whether Article 2676a, V. T. C. S., is prohibited by Sec. 56 of 

Article 3 of the Texas Constitution as a local or special law. 

Article 2676a provides in part: 

Section 1. From and after the effective date 

of this 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 of the 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 of whom shall be elected from 

the county at large by the qualified voters of the 

county and one from each commissioners precinct 

by the qualified voters of each commissioners precinct, who shal1 hold office for a term of two (2) 

years. 

Section 7 is 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 of the school trustees of the 

p. 1840 
The Honorable Dan Kubiak, page 2 (H- 393) 

district from which such territory is being 

detached as well as the prior consent of the 

school trust.ees of the district to which such 

detached terri.tory is to be annexed. 

Section 56 of Article 3 provides: 

The Legislature shall not, except as otherwise 

provided in this Constitution, pass any local or 

special law, authorizing: 

. . . 

Regulating the affairs of counties, cities, towns, 

wards or school districts: 

. . . 

Regulating the management of public schools, 

the building or repairing of school houses, and 

the raising of money for such purposes. 

Section 7 prevents county school trustees in counties with populations 

between l@O,OOO and 120,000 from detaching school lands from an independent school distri,c? without the prior approval of the trustees of the 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 of the 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 1963 the population 

classification wa,s se, at 75,000 t.o 80.000 persons. 

1.960 Federal, Census:’ 

Accordi,ng to the 

only Rrazoha Counly qualified by population under 

the statut.e. By 1970 Brazoria Cou”ty has a population of 1,08,312 persons. 

Consequently, Brazoria County had moved out of the original classification 

and other counties had moved irlto it. In 1971 the Legislature amended 

Sec. 1 of 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. 

pe 1841 
. 

The Honorable Dan Kubiak, page 3 (H-393) 

The ti.tle of the amending act of 1971 leaves 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:o define the scope of their 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 of it 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 of the 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 of the new census on the scope of a particular statute. 

In Citv of Fori Worth v. Bobbitt, 36 S. W. 2d 470 (Tex. 1931) a 

statute conferred special benefits upor? al.1 cities within a population 

classi.fication according to the 1920 federal census. The court held 

that the statil!.e was a prohi.bited speci.al, l.aw without discussing the 

necessity or reasonableress of the l.aw si.nce it found that Fort Worth 

was the only r,iiy to w’hic 11 it- cou1.d ever appl.:;. Likewi,se, i.n Fritter 

v. West, 65 S. W. 2d 4?4 (Te:<. Cic-. Apna g San Antonio 1933, err. ref’d. ) 

no consi,derat:ion was g%ve.n to the wasonableness of a statute abolishing 

a county-wide common school d!st ci:t si r,,:c’ t ht~ st:atute express1.y 

applied on1.y to Kir.nq Cou~tv. 

The same cor?clilr. ior, must be rra.iwd under Section S6 of Article 3, 

when it is apparent, as it. is ht~re, tJ:Jaf. a rwmi n,all,y open-ended bracket 
The Honorable Dan Kubiak, page 4 (H-393) 

is actually intended to include only Brazoria County. By amending the 

population bracket of Article 2676a in 1971 so 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, 97 S. 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 56 of Article 3 

of the Texas Constitution. 

Very truly yours, 

bs% 

L. HILL 

// 

Attorney General of Texas 

A 

LAR \F. YOR , & 

- 

‘rst A sistant 

.&LA@ 

DAVID M. KENDALL, Chairman 

Opinion Committee 

p. 1843