                               ATTORNEY GENERAL OF TEXAS
                                           GREG        ABBOTT


                                               October 8, 2008



The Honorable Richard J. Miller                           Opinion No. GA-0670
Bell County Attorney
Post Office Box 1127                                      Re: Constitutionality of sections 143.088 and
Belton, Texas 76513                                       143.1041, Local Government Code
                                                          (RQ-0699-GA)

Dear Mr. Miller:

       You inquire about the constitutionality under article III, section 56, Texas Constitution, of
two sections in chapter 143 ofthe Local Government Code.! Chapter 143 establishes a civil service
system for municipal police and fire departments. See generally TEx. Lac. GOy'T CODE ANN. §§
143.001-.363 (Vernon 2008). The purpose of chapter 143 is to "secure efficient fire and police
departments composed of capable personnel who are free from political influence and who have
permanent employment tenure as public servants." Id. § 143.001(a).

        The first section about which you ask is section 143.088, which prohibits a person from either
accepting money or anything of value from, or giving money or anything of value to, another for
retiring or resigning from a civil service position. See [d. § 143.088(b)-(c). Section 143.088(a)
excludes from the prohibition municipalities with a population of 1.5 million or more. See [d. §
143.088(a). And you point out that there is no comparable prohibition found elsewhere that is
applicable only to municipalities with a population of 1.5 million or more. See Request Letter, supra
note 1, at 1.

         The second section about which you inquire is section 143.1041, concerning entrance exam
requirements. See [d. at 1. Entrance exams are required for beginner positions in civil service fire
and police departments. See TEx. Loc. GOy'T CODE ANN. § 143.025(a) (Vernon 2008). Under
section 143.025, entrance exams are open to "each person who makes a proper application and meets
the requirements" ofchapter 143. Id.; see also [d. § 143.025(k) (providing that section 143.025 does
not "apply to a police department located in a municipality with a population of 1.5 million or
more"). In contrast, section 143.1041 operates in municipalities with a population of 1.5 million or
more and limits the applicants who may take the entrance exam to only those applicants who have
been admitted to or who are enrolled in a police officer training academy. See [d. § 143.1041(b)(2),
(c); see also [d. § 143.101 (providing that subchapter G, which includes section 143.1041, applies
to only a municipality with a population of 1.5 million or more).


          'See Letter from Honorable Richard J. Miller, Bell Connty Attorney, to Honorable Greg Abbott, Attorney
General of Texas, at I (Apr. 3, 2008) (on file with the Opinion Committee, also ""ai/able at http://www
.texasattorneygeneral.gov) [hereinafter Reqnest Letter].
The Honorable Richard J. Miller - Page 2                   (GA-0670)



        You observe that the City of Houston is the only city in Texas that satisfies the 1.5 million
population requirement. See Request Letter, supra note I, at 1; see also http://factfinder.census.gov/
(2000 census data showing Houston population of 1,953,631). You state that these sections, which
provide requirements exclusive to the City of Houston that are different from therequirements for
all other municipalities subject to chapter 143, "differ solely because of a population bracket
determination."2 Request Letter, supra note I, at I. And you argue there is no legitimate rationale
for the differences. See id. at 3. You thus contend the two sections are local or special laws that
violate article ill, section 56, Texas Constitution. See Request Letter, supra note 1, at 1-3.

        Article ill, section 56, Texas Constitution, prohibits the Legislature, except as otherwise
authorized by the constitution, from passing any local or special law regulating, among other things,
the affairs of cities. See TEX. CONST. art. ill, § 56(a)(2). Section 56 also provides that "in all other
cases where a general law can be made applicable, no local or special law shall be enacted." Id. art.
ill, § 56(b). A general law is distinguished from a local or special law in that "'a statute which
relates to persons or things as a class is a general law, while a statute which relates to particular
persons or things as a class is special, and comes within the constitutional prohibition.'" Pub. Uti!.
Comm 'n ofTex. v. Sw. Water Servs. Inc., 636 S.W.2d 262, 265 (Tex. Civ. App.-Austin 1982, writ
rei'd n.r.e.) (quoting Clarkv. Finley, 54 S.W. 343, 345 (Tex. 1899)). The Texas Supreme Court has
stated that the purpose of article ill, section 56 is to "prevent the granting of special privileges and
to secure uniformity oflaw throughout the State as far as possible." Miller v. El Paso County, 150
S.W.2d 1000, 1001 (Tex. 1941).

        Texas courts also recognize, notwithstanding the constitutional prohibition, that the
Legislature has broad powers to make classifications for legislative purposes and to enact laws
pertaining to the classifications. See id. But the Legislature's power to make legislative
classifications is limited in that "such legislation must be intended to apply uniformly to all who may
come within the classification . . . , and the classification must be broad enough to include a
substantial class and must be based on characteristics legitimately distinguishing [the] class from
others with respect to the public purpose sought to be accomplished by the proposed legislation."
Id. at 1001-02. In other words, the "primary and ultimate test ofwhether a law is general or special
is whether there is a reasonable basis for the classification made by the law, and whether the law
operates equally on all within the class." Maple Run Mun. Uti!. Dist. v. Monaghan, 931 S.W.2d 941,
945 (Tex. 1996); see also Smith v. Davis, 426 S.W.2d 827, 830 (Tex. 1968); Rodriguezv. Gonzales,
227 S.W.2d 791, 793-94 (Tex. 1950); Miller, 150 S.W.2d at 1002; Bexar County v. Tynan, 97
S.W.2d 467,470 (Tex. 1936).




          'You point out that chapter 143 contains other provisions that use a population bracket of 1.5 million. See
Request Letter, supra note I, at 3; see, e.g., TEX. Loc. GOy'T CODE ANN. §§ 143.01O(i) (Vernon 2008) (applicability
based on municipality of 1.5 million or more), .014(a), .023(g), .030(a), .033(c), .036(e), .101-.135. You inquire
specifically about only sections 143.088 and 143.1041, and we limit our opinion accordingly. Moreover, we note that
analysis under article III, section 56 involves consideration of the specific provision and the relationship between the
legislative classification and the "public purpose sought to be accomplished by the proposed legislation." Miller, 150
S.W.2d at 1001-02. Thus, any determination we make with respect to sections 143.088 and 143.1041 has no implication
for other statutes containing a population bracket.
The Honorable Richard J. Miller - Page 3                     (GA-0670)



        With respect to classification by population, as is the case here, the Texas Supreme Court has
said that "[t]he use of population brackets alone, ... ,does not necessarily render a law special in
nature and contrary to the constitutional prohibition against same." Smith v. Decker, 312 S.W.2d
632,635 (Tex. 1958). But, it has also long "been held that the use of population brackets alone to
direct legislation toward a particular county needing a particular type oflegislation will not in itself
save the law from being unconstitutional as a special law if the classification bears no reasonable
relationship to the objects sought to be accomplished." ld. at 635-36. The population classification
"must be based upon a real distinction, and must not be arbitrary or a device to give what is in
substance a local or special law the form of a general law." Bexar County, 97 S.W.2d at 470.

        We received briefs in connection with your request that contend these two sections are
constitutional because the population limitation ofl.5 million does not limit these provisions to only
the City of Houston. 3 This argument is based on court opinions that have used a "closed class"
analysis wherein a statute is held unconstitutional "when [the population bracket] can never apply
to any but one city in any possible event." Gould v. City olEI Paso, 440 S.W.2d 696, 700 (Tex. Civ.
App.-El Paso 1969, writ ref'd n.r.e.). Under that analysis, ifthe population bracket allows another
entity such as a city or county to subsequently enter the bracket, the law is upheld. See Gould, 440
S.W.2d at 696-700. But the closed or open nature of a population bracket is not dispositive. See
Pub. Uti!. Comm 'n., 636 S.W.2d at 264 (comparing statutes with a "closed class" that have been held
constitutional with "open class" statutes held to be unconstitutional, the court stated "[w]e have
concluded the 'closed class' test is an over-simplified and inaccurate way to analyze whether a
statute is a local or special law"); Oakley v. Kent, 181 S.W.2d 919, 923-24 (Tex. Civ.
App.-Eastland 1944, no writ) ("Because population as a basis for classification has been sustained
by the courts in respect to legislation on certain subj ects, it has been assumed, erroneously, that
population brackets will serve in all instances to avoid the condemnation ofthe Constitution. This
mistaken assumption proceeds from a failure to note that population [bracket] has been sustained
as a basis for classification only in those instances where it bore a reasonable relation to the objects
and purposes of the law and was founded upon rational difference in the necessities or conditions
of the groups subjected to different laws.") (adopting entirety of analysis from Tex. Att'y Gen. Gp.
No. 0-5326 (1943) at 1-6). Thus, even in statutes classified by population, the Texas Supreme
Court has opined, most recently in 1996, that the central question is whether the population
classification bears a reasonable relationship to the object sought to be accomplished. See Maple


          'See Brieffrom Richard W. Carter, Attorney for Combined Law Enforcement Associations ofTexas, to Nancy
S. Fuller, Chair, Opinion Committee, Office of Attorney General, at 3 (May 13, 2008) (stating that the "population
requirement does not limit the classification strictly to one municipality[; r]ather, it is a valid identifier of the
municipalities that require certain procedures to handle the distinct situations that may arise") [hereinafter CLEAT Brief];
BrieffromAaron J. Suder, StaffAttorney, HoustonPolice Officers' Union, to Honorable Greg Abbott, Attorney General
ofTexas, at3 (May 16, 2008) (stating that provisions in question "will apply equally to any municipality that eventually
reaches [the] population threshold"); BrieffromRichard C. Mumey, on behalfofthe Houston Professional Fire Fighters
Association, to Honorable Greg Abbott, Attorney General ofTexas, at 6 (May 19, 2008) (stating the population bracket
''will apply to any city which may grow to such size in the future[; bloth Dallas and San Antonio are currently within
striking distance at 1.2 million and 1.3 million, respectively"); Brief from Arturo G. Michel, Houston City Attorney, to
Honorable Greg Abbott, Attorney General of Texas, at I (August 4, 2008) [hereinafter Houston Brief] ("With the
inexorable growth in the population of municipalities across the state, other cities will eventually be in that class.") (all
briefs on file with the Opinion Committee).
The Honorable Richard J. Miller - Page 4            (GA-0670)



Run, 931 S.W.2d at 945; see also Decker, 312 S.W.2d at 635-36; Rodriguez, 227 S.W.2d at 794
(condemning law as prohibited local and special law where court detennined that "[n]o valid reason
can be perceived for limiting the operation ofthe Act to border counties"); Smith v. State, 49 S.W.2d
739, 744 (Tex. Crim. App. 1932) (striking down law as an unconstitutional local or special law
because the "classification does not rest in real and substantial distinctions rendering the class
involved distinct [and] the basis of the classification-the population involved-has no direct
relation to the purpose ofthe law").

         In examining the constitutionality ofsections 143.088 and 143.1041 under article III, section
56, we are mindful that a Texas court will begin by presuming the statutes are valid. See Davis, 426
S.W.2d at 831. The Legislature is presumed to have not acted unreasonably or arbitrarily. See id.
A court will also presume that the Legislature "'understands and correctly appreciates the needs of
its own people, that its laws are directed to problems made manifest by experience, and that its
discriminations are based upon adequate grounds.'" Id. (quoting Nat'l Guard Armory Bd. v.
McCraw, 126 S.W.2d 627, 634 (Tex. 1939)). And when considering a law challenged under article
III, section 56, "[i]fthere could exist a state of facts justifying the classification or restriction ... ,
[a court] will assume that it existed." Scurlock Permian Corp. v. Brazos County, 869 S.W.2d 478,
485 (Tex. App.-Houston [1st Dist.] 1993, writ denied). The Legislature, however, may not
authorize an action that the constitution prohibits. See Tex. Mun. League Intergov 'tl Risk Pool v.
Tex. Workers' Compo Comm 'n., 74 S.W.3d 377,381 (Tex. 2002).

        We consider the most recent enactment first. Section 143.1041 was added to chapter 143 by
the 80th Legislature. See Act of Apr. 25, 2007, 80th Leg., R.S., ch. 27, § 1,2007 Tex. Gen. Laws
25,25-26. We find no express statement ofpurpose or intent in section 143.1041. Absent express
statements in legislative enactments challenged under article III, section 56, Texas courts have
looked to other sources for possible justifications. See Maple Run, 931 S.W.2d at 945-46
(examining court record for legitimate reason for statute), Davis, 426 S.W.2d at 831 (taking judicial
notice ofnumber ofstate-supported medical schools and assuming existence ofspecial requirements
and obligations of schools identified in classification). Here, we examine the bill analysis
accompanying the enrolled version ofthe bill enacting section 143.1041. It indicates the Legislature
intended to address

                a need to speed up the pre-employment process for applicants to
                certain police departments and to get more officers on the street in a
                timely fashion. The practice of giving the civil service examination
                prior to admission into a police training academy is a burden on the
                resources of police departments because many people who take the
                examination fail at a later portion in the application process.

TEX. SENATE COMM. ON INTERGOVERNMENTAL RELATIONS, BILL ANALYSIS, Tex. S.B. 339, 80th
Leg., R.S. (2007). Providing for a faster application process for the hiring ofpolice departments in
larger municipalities is reasonable. Under article III, section 56, however, the question is whether
the 1.5 million population limitation bears a reasonable relationship to the faster application process
for police officer candidates. See Maple Run, 931, S.W.2d 945. We note that the Chairman ofthe
The Honorable Richard J. Miller - Page 5                   (GA-0670)



Senate Intergovernmental Connnittee indicated section 143.1041 has potential application in other
municipalities. See Hearings on Tex. S.B. 339 Before the Senate Comm. on Intergovernmental
Relations, 80th Leg., R.S. (Feb. 28, 2007), available at http://www.senate.state.tx.us. In the
connnittee hearing at which the bill enacting section 143.1041 was discussed, the Chairman stated
he thought the idea behind section 143.1041 was good and inquired whether it should be applicable
to other cities subject to chapter 143. See id. He noted that the provision could be made uniformly
applicable to all cities subject to chapter 143 by simply removing the population provision. See id.
The failure ofthe Legislature to remove the population limitation knowing the benefits ofthe statute
to all municipalities subject to chapter 143 could lend support to the argument that the population
limitation in section 143.1041 is "arbitrary or a device to give what is in substance a local or special
law the form of a general law." Bexar County, 97 S.W.2d at 470.

        Nevertheless, given the general presumption that a statute is valid and the specific
presumption under article ill, section 56 that a state of facts could exist that justifies the
classification, we cannot saythat the Legislature had no reasonable basis for the classification. Thus,
we cannot conclude as a matter oflaw that section 143.1041 is unconstitutional under article ill,
section 56. See Tex. Att'y Gen. Op. Nos. JM-l130 (1989) at 4 ("[W]e cannot say that it is violative
of[article ill, section 56] as a matter oflaw[,] ... we cannot determine factual matters in the opinion
process ... , and there is an insufficient factual basis for reaching a decision as a matter oflaw."),
MW-421 (1982) at 2-3 ("We cannot say as a matter oflaw that there is no rational basis for the
classification created by the [statute]."), H-1080 (1977) at 3 ("[W]e cannot conclude that a court
would hold that [the provision] is a local or special law on the basis of the classification created
[therein].").

         We next consider section 143.088, which was adopted by the Legislature in 1985. See Act
of May 26, 1985, 69th Leg., R.S., ch. 910, § 4, sec. 14D(8)(a), 1985 Tex. Gen. Laws 3046, 3051.
We find no express statement of purpose or intent regarding section 143.088 that informs us of the
Legislature's intent with the enactment of the section. The overall purpose of chapter 143 is to
secure "capable personnel who are free from political influence and who have permanent
employment tenure as public servants.'" TEX. Loc. GOV'TCODEANN. § 143.001(a) (Vemon2008).
Briefing we received suggests that by excluding larger police forces from the prohibition against
selling retirements section 143.088 promotes efficiency in the operation oflarger forces byproviding
greater ability to retain police officers, increased flexibility to avoid high litigation costs, and more
ability to stagger vacancies throughout the larger force. See CLEAT Brief, supra note 3, at 4. While
these proffered purposes are certainly reasonable with respect to large police forces, the question
under article ill, section 56 is whether the population limitation of 1.5 million bears a reasonable
relationship to those, or any other, purposes. Again, bound by the presumptions ofconstitutionality
and classificationjustification, we cannot determine as a matter oflaw that section 143.088 violates
article ill, section 56. See supra at 4--5; see also Tex. Att'y Gen. Op. Nos. JM-l130 (1989), MW-
421 (1982), H-1080 (1977).




        'The City ofHouston informs us that it has a city ordinance that applies to all City employees that prohibits the
behavior prohibited in section 143.088. See Houston Brief, supra note 3, at 2 n.1 (referring to Ordinance No. 85-837).
The Honorable Richard J. Miller - Page 6         (GA-0670)



                                      SUMMARY

                       Though article ill, section 56, Texas Constitution, prohibits
              the Legislature from passing any local or special law regulating the
              affairs ofcities, the Legislature nonetheless has broad powers to make
              classifications for legislative purposes and to enact laws pertaining to
              the classification. The primary consideration under article ill, section
              56, is whether there is a reasonable basis for the classification made
              by the law related to the purpose of the law.

                       Sections 143.088 and 143.1041, which pertain to civil service
              exam requirements and limitations on civil service retirement,
              respectively, apply only to municipalities with a population of 1.5
              million or more, currently the City of Houston. Such a population
              classification is not unconstitutional where there is a basis for the
              population bracket that is reasonably related to the object of the
              statute.

                      Given the presumption ofconstitutionality ofstatutes as well
              as the presumption that a state of facts exists to justify a legislative
              classification, we cannot conclude as a matter of law that these two
              provisions are local or special laws prohibited by article ill, section
              56.




KENT C. SULLNAN
First Assistant Attorney General

ANDREW WEBER
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Charlotte M. Harper
Assistant Attorney General, Opinion Committee
