                   i%TlXDRNEY                  ENERAL




Honorable John Lawhon                    Opinion No. M-932
District and County Attorney
County Courthouse                        Re:    Construction of H.B. 1754,
Denton, Texas 76201                             Acts 62nd Leg., R.S. 1971,
                                                Ch. 583, p. 1927, relating
                                                to the allowances for travel-
                                                ing expenses of members of
                                                the commissioners court in
Dear Mr. Lawhon:                                certain counties.
          You have requested the opinion of this office concerning
the effective date of House Bill 1754, Acts 62nd Legislature, R.S.
1971, Ch. 583, page 1927. You have further asked our opinion as
to whether House Bill 1754 allows the commissioners court to set
"travel expenses and depreciation" of one or more of the commis-
sioners at a different sum,from that set for the county judge or
from that set for another commissioner.
          For the reasons which-follow, we hold that House Bill
1754 is unconstitutional and therefore never became a valid and
effective law. It Is therefore unnecessary to answer your ques-
tions.
           The relevant portions of House Bill 1754 read as
follows:
         'Section 1. In any county having a popula-
    tlon of not less than 73,000 nor more than 75,750
    :ccording to the last preceding federal census, the
    commissioners court may allow each member of the
    commissioners court not more than $150 per month
    for traveling expenses and depreciation on his
    automobile while on official business within the
    county. Each member of the commissioners court
    shall pay all expenses in the operation of his
    automobile and keep It in repair free of any other
    charge to the county.
         'Sec. 2. As used in this Act, 'members of
    the commissioners court' means the county commissioners

                                -4544-
Hon. John Lawhon, page 2         (M-932)




     and the county judge.
         'Sec. 3.  This Act applies only to counties
    not furnishing an automobile or truck or by other
    means providing for the traveling expenses of
    members of their commissioners courts while on
    official business within the county.
          "Sec. 4.  In any county in this state having
     a population of not less than 11,870 and not more
     than 12,000, according to the last preceding fed-
     eral census, the commissioners court is hereby
     authorized to allow each member of the court the
     sum of not exceeding $125 per month for traveling
     expenses and depreciation on his automobile while
     on official business within the county. Each
     member of the court shall pay all expenses In
     the operation of such automobile and keep the
     automobile in repair free of any other charge
     to the county.
          'Sec. 5.  As used in this Act, 'the last
     preceding federal census' means the 1970 census
     or any future decennial federal census. This is
     despite any legislation that has been or may be
     enacted during any session of the 62nd Legisla-
     ture delaying the effectiveness of the 1970 cen-
     sus for g:neral state and local governmental
     purposes.
          Section 56 of Article III of the Texas Constitution pro-
hlbits the Legislature from passing any local or special law where
a general law can be made applicable. The purpose of this con-
stitutional provision has been very ably explained in Miller v.
El Paso County, 136 Tex. 370, 150 S.W.2d 1000 (1941) at page
 001-1002:
          "The purpose of this constitutional lnhi-
     bition against the enactment of local or special
     laws is a wholesome one. It is intended to pre-
     vent the granting of special privileges and to
     secure uniformity of law throughout the State
     as far as possible. It is said that at an early
     period in many of the states the practice of
     enacting special and local laws became 'an
     efficient means for the easy enactment of
     laws for the advancement of personal rather
                             -4545-
Hon. John Lawhon, page 3      (M-932)


     than public interests, and encouraged the
     reprehensible practice of trading and "log-
     rolling."' It was for the suppression of such
     practices that such a provision was adopted
     in this and many of the other states of the
     Union. 25 R.C.L., p. 820, $68.
          'Notwithstanding the above constitutional
     provision, the courts recognize in the Legisla-
     ture a rather broad power to make classifications
     for legislative purposes and to enact laws for
     the regulation thereof, even though such legisla-
     tion may be applicable only to a particular class
     or, in fact, affect only the Inhabitants of a
     particular locality; but such legislation must
     be Intended to apply uniformly to all who may
     come within the classification designated In
     the Act, and the classification must be broad
     enough to Include a substantial class and must
     be based on characteristics legitimately dis-
     tinguishing such class from others with respects
     to the public purpose sought to be accomplished
     by the proposed legislation. In other words,
     there must be a substantial reason for the
     classification. It must not be a mere arbitrary
     device resorted to for the purpose of giving what
     is, In fact, a local law the appearance of a
     general law. City of Fort Worth v. Bobbitt,
     121 Tex. 14, 36 S.W.2d 470, 41 S.W.2d 228;
     Bexar County V. Tynan, 128 Tex. 223, 97 S.W.2d
     467; Clark v. Finley, Comptroller, 93 Tex. 171,
     178, 54 S.W. 343; Supreme Lodge United Benevolent
     Ass'n v. Johnson, 98 Tex. 1, 81 S.W. 18; Smith
     v. State, 120 Tex.Cr.R. 431, 49 S.W.2d 739;
     Randolph v. State, 117 Tex.Cr.R. 80, 36 S.W.2d
     484; Fritter v. West, Tex.Civ.App., 65 S.W.2d
     414, writ refused; State v. Hall, Tex.Civ.App.,
     76 S.W.2d 880; Wood v. Marfa Ind. School Dist.,
     Tex.Civ.App., 123 S.W.2d 429. As said in
     Leonard v. Road Maintenance District No. 1,
     187 Ark. 599, 61 S.W.2d 70, 71: 'The rule
     is that a classification cannot be'adopted
     arbitrarily upon a ground which has no founda-
     tion'ln difference of situation or circumstances
     of the municipalities placed in the different
     classes. There must be some reasonable relation
                           -4546-
Hon. John Lawhon, page 4      (M-932)



    between the situation of municipalities clas-
    sified and the purposes and objects to be
    attained. There must be something * * * which
    in some reasonable degree accounts for the
    division into classes."
          Because population as a basis for classification has
been sustained by the courts with respect to legislation on
certain subjects, /-City of Ft. Worth v. Bobbltt, 121 Tex. 14,
41 S.W.2d 228 (193n; Clark V, Finley, 93 T      1'11,54 S.W. 343
(1899) 7, it has been widely, and erroneous:;; assumed that popula-
tion bFackets may be resorted to in all instances to avoid the pro-
hibition of Section 56 of Article III of the Texas Constitution.
This erroneous assumption emanates from a lack of appreciation
for the fact that population has been sustained as a basis for
classification only In those instances where population bears a
reasonable relation to the objects and purposes of the law and
the chosen population bracket was founded upon rational differences
in the conditions, status, duties or circumstances of the groups
included and excluded from the operable effect of the law. Bexar
County v. Tynan, 128 Tex. 223, 97 S.W.2d 467 (1936).   Where it
been determined that, considering the objects and purposes of the
law, differences in population afford no rational basis for dis-
criminating between groups of the same natural class, classifica-
tion has been termed arbitrary selection, and the law has been
held to be special and local within the prohibition of Section 56
of Article III. Smith V. Decker, 158 Tex. 416, 312 S.W.2d 632
(1958); San Antonio Retail Grocers v. Lafferty, 156 Tex. 574,
297 S.W.2d 813 (195',)*Rodrigues v. Gonzales, 148~Tex. 537, 227
S.W.2d 791 (1950); Anderson v. Wood, 137 Tex. 201, 152 s.W.2d
1084 (1941).

          Reference to House Bill 1754 shows that it creates two
categories of counties for the purpose of the allowance of travel-
ing expenses and automobile depreciation for county judges and
county commissioners. One category is those counties having a
population of not less than 73,000 nor more than 75,750.  In
these counties the allowance may be set at any sum up to $150.00
per month. The second category is counties having a population
of not less than 11,870 and not more than 12,000. In these counties
the allowance may be set at a sum not exceeding $125.00 per month.
These provisions must be construed in light of the provisions of
Article 23500 of Vernon's Civil Statutes, which is the general
statutory provision pertaining to the allowance for travel ex-
penses and automobile depreciation for the members of the com-
missioners court. The provisions of that act read as follows:

                           -4547-
Hon. John Lawhon, page 5      (M-932)


            'Section 1. In any county in this State
     having a population of not more than twenty-one
     thousand, five hundred (2l,5OO), according to
     the last preceding or any future Federal Census,
     the Commissioners Court is hereby authorized to
     allow each member of such Commissioners Court
     the sum of not exceeding Seventy-five Dollars
     ($75.)   per month for traveling expenses and
     depreciation on his automobile while on of-
     ficial business within the county. Each member
     of such Commissioners Court shall pay all ex- .e
     penses in the operation of such automobile and
     keep same in repair free of any other charge
     to the county,
          'Sec. 2. In any county in this State having
     a population In excess of twenty-one thousand,
     five hundred (21,500) but not in excess of one
     hundred twenty-four thousand (124,000), according
     to the last preceding or any future Federal Cen-
     sus, the Commissioners Court is hereby authorized
     to allow each member of the Commissioners Court
     the sum of not exceeding One Hundred Dollars
     ($100) per month for traveling expenses and
     depreciation on his automobile while on official
     business within the county. Each member of such
     Commissioners Court shall pay all expenses in
     the operation of such automobile and keep same in
     repair free of any other charge to the county.
         "Sec. 3.  In any county in this State having
    a population in excess of one hundred twenty-four
    thousand 124 000 but not in excess of six hundred
    thousand 1600:000] according to the last preceding
    or any future FedeGal Census, the Commissioners
    Court is hereby authorized to allow each member
    of the Commissioners Court the sum of not exceeding
    One Hundred and Twenty-five Dollars (8125) per
    m~onthfor traveling expenses and depreciation on
    his automobile while on official business within
    the county. Each member of such Commissioners
    Court shall pay all expenses in the operation of
    such automobile and keep same in repair free of
    any other charge to the county.
          "Sec. 4.  In any county of this State having
     a population in excess of six hundred thousand

                           -4548-
Hon. John Lawhon, page 6      (M-932)


     (~OO,OOO), according to the last preceding or
     any future Federal Census, the Commissioners
     Court is hereby authorized to allow each member
     of the Commissioners Court the sum of not ex-
     ceeding One Hundred and Fifty Dollars ($150)
     per month for traveling expenses and depreciation
     on his automobile while on official business
     within the county. Each member of such Commis-
     sioners Court shall pay all expenses in the
     operation of such automobile and keep same in
     repair free of any other charge to the county.
          "Sec. 5. The term 'members of the Commis-
     sioners Court' when used herein means the County
     Commissioners and the County Judge.
          "sec. 6.  The provisions of this bill shall
     apply only to those counties not furnishing an
     automobile, truck, or by other means providing
     for the traveling expenses of Its commissione$s,
     while on official business within the county.
          A comparison of the two acts makes it readily apparent
that the sole purpose of House Bill 1754 is to create two very
narrow exceptions to the provisions of Section 1 and Section 2
of Article 23500. According to the 1970 census figures, Section
1 of House Bill 1754 could apply only to Denton County, Texas,
and Section 4 could apply only to Comanche County, Texas. Under
the provisions of Article 23500, Denton County is in a classifica-
tion of counties where the maximum sum allowable for travel ex-
penses and automobile depreciation is $100.00. House Bill 1754
would place Denton County In a category of counties now limited
to those having a population in excess of 600,000, thus, in
effect, jumping Denton County over that category of counties
specified in Section 3 of Article 23500. Section 4 of House
Bil~l1754 removes Comanche County from that classification of
counties established by Section 1 of Article 23500, and places
it in the category established by Section 3 of that Article,
which applies to counties having a population in excess of
124,000, but not in excess of 600,000. We are aware of no
unique circumstance or situation which exists in Denton and
Comanche Counties which would warrant their removal from the
general classification already established by Article 23500,
Vernon's Civil Statutes, and place them on a par with counties
having much larger population for the purposes of travel expense
and automobile depreciation allowance for the members of the
commissioners court. For this reason, and upon the rationale
of Miller v. El Paso County, supra, we hold that House Bill 1754

                            -4549-
Hon. John Lawhon, page 7         (M-932)



is a local or special law within the meaning of Section 56 of
Article III of the Texas Constitution and is therefore invalid.

                      SUMMARY
          House Bill 1754, Acts 62nd Leg., R.S. 1971,
     Ch. 583, p. 1927, is a local or special law
     within the meaning of Section 56 of Article III
     of the Texas Constitution and is therefore un-
     constitutional.
                              /7




                                      ey General of Texas
Prepared by W. 0. Shultz
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
W. E. Allen, Co-Chairman
Bob Lattimore
Sam McDaniel
Ben Harrison
Ivan Williams
MEADE~F. GRIFFIN
Staff Legal Assistant
ALFRED WALKER
Executive Assistant
NOLA WHITE
First Assistant




                             -4550-
