The Honorable   Dan Kubiak                      Opinion         No.   H-    393
State House of Representatives
Room 154, State Capitol                          Re:        Validity        of
Austin,  Texas 78767                                        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 con-
         trol 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          pre-
         cinct, 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 indepen-
dent school distri,c? without the prior approval         of the trustees   of the inde-
pendent school district.       The,re is nothing unreasonable       in this require-
ment.    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.          Accordi,ng     to the
1.960 Federal, Census:’ 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      cen-
             sus; . . . (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 con-
    fined 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 classifi-
    cation 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 11it- 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
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                                                          -
LAR      \F.   YOR     , & ‘rst    A   sistant




 .&LA@
DAVID M. KENDALL,                 Chairman
Opinion Committee




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