Eon. John C. Xarburger         Opinion Bo. v-386
county Attorney
Fayette County                 Be:   Constltutlonallty     of
La Grange, Texas                     IL&.~;7;     A~tb or   the
                                               ., relative    to
                                     county juvenile boards
                                     In certain counties.
Dear Sir:

             You have requested this 0rrm to determlne
the cdnstltutlonality    of H. B. 257, Acts o? the 50th
Legislature,    p. 560,~Vernon’s Texas’ SedsioiLaw   Service.
H. B. 257 Is an Act amending Article     5139, V.C.S.,  so
as to create Couqty Juvenile Boards In certain counties.
The provisions    vhlch were added to Article   5139 by II. B.
2.576re as r0ii0ws:
            “In any county having a population 0r
     less than seventy thousand (70,000) inhabl-
     tants according to the lest preceding Federal
     Census, which county Is Included in, and forms
     a part of a Judicial     District     of aeven (7) or
     more counties having a combined populstion            of
     more than fiity-two    thousand (52,000) inhsbi-
     tank,     or which county is included in and forms
     a part of a Judicial     District     or five (5) or
     more counties having a combined population of
     more than seventy-two     thousand       72 000 and
     lesa than ninety-five     thousand 1,95,000 1 lnhabl-
     tants according to the last preceding Federal
     Census, or which county Is included In and
     forms a part or a Judicial        District   of five
     (5) or more counties,     in one (1) or more or,
     which counties the civil      and criminal jwis-
     diction vesting by General Law in the County
     Court has been or hereafter        shell be trans-
     ferred to the exclusive      jurisdiction      of the Dis-
     trict Court of such county or counties,            and
     having a comblned~populationln           such Judicial
     District    of more than thirty-five       thouaand (35,-
     000) inhabitants,    according     to the last preced-
     ing Federal Census; or which county is included
     in and forms a art of a Judicial           District    com-
     posed of four ( $ ) counties having a combined
                             i




Hon. John C. Wsrburger - Page 2           (v-386)


    population of not more than sixtytwo thou-
    sand (62,000) inhabitantsaccording to such
    last preceding Federal Census, one (1) or
    more counties In which districts border on
    the InternationalBoundary between the
    United States and the Republic of Mexico;
     the Judge of such Judicial   District,   to-
     gether with the County Judge of such county
     are hereby constituted   a Juvenile Board for
     such county.    The members composing such
     Juvenile Board in each such county shall
     each be allowed additional   compensation of
     not less than One Hundred Dollars ($100)
                  and not more than Three Hundred
     x:;1~~4300)       or annum, which shall be
     paid in twelve P12) equal installments       out
     of either the general fund or the jury fund
     or such county, such additional     compensation
     to be fixed by the Commissioners Court of
     such county. ”
          Article   III,    Section    56, provides   in part:
           ‘The Legislature  shall not, except           as
     othervise  provided in this Constitution,            pass
     any local or special   law, . . .
           “Regulating     the affairs    of counties.     . .,
          “Creating ofrlces,   or prescribing   the
     powers and duties of officers,    in counties.          . .”
          Article   V, Section        1, provides:
           “The judicial  power of this State shall
     be vested in one Supreme Court, in COUrta   Of
     Civil Appeals, in a Court of Criminal Appeals,
     in District   Courts, in County Courts, In Com-
     missioners’   Courts, in Courts of Justlces of
     the Pesce, and in such other courts as may be
     provided by law.
           II. . .

           “The Legislature    may establish   such other
     courts as it may deem necessa.ry and prescribe
     the jurisdiction    and organization    thereof, and
     may conform the jurisdiction      of tht District
     and other inferior     courts thereto.
..

     Eon. John C. Marburger - Page 3   (V-386) '


               It may be contended that this Act is governed
     by Article V, Section 1 of the Texas Constitution, and
     therefore is not subject to the provisions of Article
     III, Section 56, (See Harris County v. Crooker, 224 S.W.
     792, affirmed 112 Tex. 459, 248 S.W. 652; Garvey v.
     Matthews, 79 S.W. (2d) 335, error refused; Jcnes v.
     Anderson, 189 S.W. (26) 65, error refused. and Tom
     Green County v. Proffit, 95 S.W. (26) 8451; however, the
     Supreme Court, citing numerous authorities of analogous
     situations, held in the case of Jones v. Alexander, 59
     S.W. (26) 1380, that the county juvenile boards do not
     have, nor do they exercise, any judicial power or func-
     tion.
               It was further held that the Legislature, when
     authorizing additions1 salaries to be paid to the mem-
     bers of juvenile boards for such services, may take into
     consideration the population and size of the county,~its
     taxable values and general conditions existing therein,
     but in any event, the cla.ssificationmust be based upon
     a real distinction. See 81~0  Clark v. Finley, 93 Tex.
     171, 54 S.W. 343. In view of the foregoing, it is ap-
     parent that R. B. 257 is subject to the provisions of
     Article III, Section 56.
               Thereforz, the question for declzign iz whether
     the classifications present a reasonable relation to the
     objects and purposes of the law snd are founded upon ra-
     tionsl differences in the necessities and conditions of
     the countlez effected by the Bill.
          In the csze of County of Bexar v. Tynen, 97 S. W.
     (2d) 467, the Supreme Court of Texas announced the prin-
     ciple which controls the matter herein:
               "votwithztending it is true that the
          Legislature may ola.szifycounties upon the
          basis of population for the purpose of fix-
          ing compensation of county and precinct
          officers, yet in doing so the classlfica-
          tion must be based upon a real distinction,
          and must not be arbitrary or R device to
          give what is in substance a local OF zpe-
          cial law the form of a~generel law.
               We quote the following cram Oakley v. Kent, 181
     S.W. (26) 919:
                                             .                  ;:
               /                                                     ..
               i


Hon. John C. lIarburger- ?age 4         (V-386)


                           p o p u la tio n a s l besls for
             “‘B a o a u a e
        olaaslfioatlonhaa been sustainedb7 the
        co&t8 ln rerpeot         to leglsfatlonon certain
        subjeots,It has been aasimed, erroneously,
        that population      braokets ~111 serve in all
        Instanceato avoid the oondemnatlonof the




        differeiicesin population afford uo rstlonal
        basis for dlscrimInatingbetveen groups of the
        same natural clam, claasiiicatlonon the
        ba8i8 Of pOpti8tIonhas been termed arbitrary
        selectlon,and the lav haa been held to be
        special and local. Randolph v. Sthte, supra."
        (Rmphasisours)
          For additional authorities,see HIllor, et al, 0.
El Paso County (Su Ct.) 150 S.Y. (26) 1000; Xx ?arte
              App.7'159 S.U. (26) 126; Jameson v. Smith,
              520; Clt of Ft. Uorth v. Bobbitt, 121 Tex.
                       1 S.Y. (26) 228; Supreme Lodge
             26) 470, 3;
Benevolent ~ss'n. v. Johnson, g8 Tex. 1, 81 S.W. 18;
Smith v. State, 49 S.W. (26) 739; Rand01 h v. State, 36
S.Y. (26) 464; Fritter v. Weat, 65 9.W.~P26) 414, writ
refused; State v. Hall, 76 S.Y. (26) 880; Wood v. MsPfa
Ind. School Diet., 123 3.W. (26) 429; Leonard v. Road
MaintenanceDlst. Ro. 1, 187 Ark. 599, 61 S.W. (26) 70.
          In the case of Jones v. Alexander, supra, the
CoUPt    VaB   PSBSiIlg
                  Upon the ~OllStitUtiOMlft~       Of &tiOlS
5139, V.C.S., which provides  that     In   a county having a
population of 100,000 or over the judges of~the several
district court8 and crlmIna1 district court8 of such county,
together vIth the county judge of such county, are.constI-
tutcd s juvenileboard, and fixes the annual salary of each
of such district judges as members of said Board at $1500
In addition to that paid the other bistrlct judges of the
State. There vas no couuty of 100,000 popul8tionor over
oaitted, and the court held that this vas a reasonable
claB8Iflcrtion. It is of co10n Lnovledgethat In the
larger olties and counties of our State juvenile delinquen-
cy is more prevalent than in the smaller tovne and coun-
tfis3, Therefore,there oould be a reason for having such
.
    Bon. John 0. Narburger'- Page 5     +386)


    a Board In all of the large counties of the State.
    Hovever, the olassIfIcatIon8contained In the pro-
    visions vhich were added to Artlole 5139 by H. B. 257
    are not based on populstlon or any other condition of
    the countiee alone, but are based upon population of
    judICla1 districts and other condltlonswhich lie out-
    Bid0 the boundaries of the counties affected. The
    classlflcatlonado not bear a reasonable relation to
    the object8 and purposes of the lav and nre not found-
    ed upon ratlonal differences in the neoessltles or
    conditions of groups subjectedto different laws.
              It is our further oplnlon that even If the
    clas3Iflcationsshould bear a reasonable relation to
    the object8 or purposes of the law, they me e@bItiw
    because there are numeroue oountles VIthIn this State
    with a much greater populetlon than those Included In
    the provisions vhIch were added to Article 5139 by
    II.B. 257 and coming vIthIn the same category vhIch
    have no such juvenile board. Belpg arbitrary clasal-
    ficatlons, the Bill I3 ln substance a local and spe-
    cial law In violation of Article III, Section 56, of
    our State Constitution. It 13 our opinion that the new
    portion of Article 5139 which was edded by B. B. 257 is
    unconstItutIonaland VOIU.
                              SUMMARY
              H. B. 257, Regular Session, 50th Leg-
         islature, providing county juvenile boards
         In certain special counties within certain
         brackets, Is a local and special law with
         arbitrary clas3IflcatIon3and therefore un-
         constItutIonal. Art. III, Sec. 56, Texas
         Constitution.




    SR:dja                               Assistant
