          THE       AITOECNEY         GENERAL
                       OF   -XAS




                       May 25, 1971


Honorable Bill Clayton                Opinion No. M-871
Chairman, Committee on Counties
House of Representatives              Re: Constitutionality of S. B.
P. 0. Box 120, Capitol Station            669, 62nd Leg., R.S., 1971,
Austin, Texas 78711                       relating to the power of
                                          the Commissioners Courts
                                          in certain counties to re-
                                          strict the keeping of hogs
                                          or hog pens in certain
                                          circumstances.

Dear Mr. Clayton:

       You have requested our opinion on the constitutionality of
Senate Bill 669 of the 62nd Legislature, R.S., 1971, which pro-
vides:

           "Section 1. The Commissioners Court of a
      county having a population of more than 1,000,000
      and not more than 1,500,000, by order may prohibit
      the keeping of hogs or hog pens within 500 feet of
      any residence in the county which is not within
      the jurisdiction of an incorporated city or town.

           "Sec. 2. A person who violates an order of
      the Commissioners Court under this Act, after having
      actual notice of the adoption of the order, is guilty
      of a misdemeanor and upon conviction is punishable
      by a fine of not less than $10 nor more than $200;
      and a separate offense is committed each day a vio-
      lation continues.




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Honorable Bill Clayton, page 2                (M-871)


      Article III, Section 1, of the Constitution of Texas,
provides:

           "The legislative power of this State shall
      be vested in a Senate and House of Representatives,
      which together shall be styled 'The Legislature of
      the State of Texas'."

      Section 56 of Article III of the Constitution of Texas
provides, in part:

           "The Legislature shall not, except as other-
      wise provided in this Constitution, pass any local
      or special law, authorizing:
           ,I
            ...

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

           4,
            . . .

           "And in all other cases where a general law
      can be made applicable, no local or special law
      shall be enacted: ...(I

      Section 23 of Article XVI of the Constitution of Texas
provides:

            "The Leqislature may pass laws for the requ-
      lation of live stock and the protection of stock
      raisers in the stock raisins portion of the State,
      and exempt  from the oreration of such laws other
      portions, sections, or counties: and shall have
      power to pass general and special laws for the
      inspection of cattle, stock and hides and for the
      regulation of brands; provided, that any local law
      thus passed shall be submitted to the freeholders
      of the section to be affected thereby, and approved
      by them, before it shall go into effect." (Emphasis
      added.)



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Honorable Bill Clayton, page 3           (M-871)


      Stock laws passed in compliance with Section 23 of
Article XVI are exempt from the provisions of Section 56 of
Article III. Therefore, pursuant to the provisions of Sec-
tion 23 of Article XVI, the Legislature is authorized to pass
a law regulating livestock making it applicable to the entire
State or it might exempt any county from the operation of such
law. Armstronq v. Traylor, 30 S.W. 440, (Tex.Sup. 1895);
Mulkey v. State, 201 S.W. 991 (Tex.Crim. 1918); Ex Parte Thompkins,
83 S.W. 379 (Tex.Crim. 1904); Ex Parte Winslow, 164 S.W.2d 682
(Tex.Crim. 1942).

      Senate Bill 669 neither makes the law applicable to the
entire State nor makes the law applicable to any particular
county. Rather, it delegates such legislative power to the
commissioners court of a county having a population of more than
1,000,000 and not more than 1,500,000, in violation of Section 1
of Article III, Texas Constitution.

       If a stock law governed by the last portion of Section 23
of Article XVI is enacted, such local law must be submitted and
approved by a vote of the freeholders of the locality affected.
Armstronq v. Travlor, supra.

      Furthermore, prohibiting the keeping of hogs or hog pens
within a certain distance of any residence in a county outside
the corporate limits of a city or town is not a law regulating
livestock or the protection of stock raisers nor is it a law
providing for the inspection of cattle, stock and hides with a
regulation or for the regulation of brands, within contempla-
tion of Section 23 of Article XVI; therefore, Section 56 of
Article III relating to local and special laws applies to this
Bill. We cannot perceive any reasonable basis for prohibiting
the keeping of hogs or hog pens within 500 feet of any residence
which is not within the jurisdiction of an incorporated city or
town and making such penal provisions applicable only to areas
of a county having a population of more than l,OOO,OOO and not
more than 1,500,OOO and excluding all other areas in the State.




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Honcrable Bill Clayton, page 4              (M-871)


      Therefore, it is our opinion that Senate Bill 669 con-
stitutes a local or special law in violation of the above quoted
provisions of Section 56 of Article III. Miller v. El Paso County,
136 Tex. 370, 150 S.W.2d 1000 (1941); Bexar County v. Tvnan, 128
Tex. 223, 97 S.W.2d 467 (1936).

      You are therefore advised that Senate Bill 669 of the 62nd
Legislature, R.S., 1971, is unconstitutional.

                           SUMMARY

               Senate Bill 669 of the 62nd Legislature,
           R-S., 1971, authorizing the commissioners court
           of a county having a population of more than
           l,OOO,OOO and not more than 1,500,000, to pro-
           hibit the keeping of hogs or hog pens within 500
           feet of any residence within the county which is
           not within the jurisdiction of an incorporated
           city or town and making a violation of such order
           a misdemeanor is unconstitutional.  Sections 1
           and 56, Article III, Texas Constitution.

                                      Ve




                                            ey General of Texas

Prepared by John Reeves
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Kerns Taylor, Chairman
W. E. Allen, Co-Chairman
Pat Bailey
Lonny Zwiener
Bob Lattimore
Max Hamilton



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Honorable Bill Clayton, page 5    (M-871)


MEADE F. GRIFFIN
Staff Legal Assistant

ALFRED WALKER
Executive Assistant

NOLA WHITE
First Assistant




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