Honorable Wallace E. Dingus            Opinion No. M-916
County Attorney
Coleman Count!?Courthouse              Re:   Constitutionality of House
Coleman, Texas 76:‘34                        Bill 1089, Acts 62nd Leg.,
                                             R.S. 1971, requiring certain
                                             county officials to report
                                             and pay to the county certain
                                             monies received by them from
                                             the operation of a private
Dear Mr. Dingus:                             business on public property.
          You have requested our opinion on the constitutionality
of House Bill 1089, Acts 62nd Legislature, R.S. 1971. Sections
1 and 2 of House Bill 1089 provide:
          "Section 1. No county official, his agents,
     servants, deputies, or employees shall operate a
     private business on public property unless he
     shall:
          "(a) keep an accurate and detailed record
     of all monies received and disbursed by him; and
          "(b) file with the county auditor, or the
     auditing authority of the county, a report cover-
     ing all of said receipts and disbursements during
     the immediately preceding calendar year on or
     before January 1 of each year; and

          "(Cl make available to the county auditor all
     records of said receipts and disbursements,
          "provided however that this Act shall not
     apply to compensation received by justices of the
     peace and official court reporters for performance
     of an act not required by law of such official.
          'Sec. 2. Any and all monies received and re-
     quired to be reported under Section 1 of this Act
     together with any interest thereon which has been

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Hon. Wallace E. Dingus, page 2              (M-916)


     paid by any financial institution as a result of
     the deposit of said funds over and above any dis-
     bursements required to be reported under Section
     1 of this Act shall be delivered to the county
     treasurer at the time of filing said report or
     at such other regular intervals throughout the year
     as may be prescribed by the county auditor or
     auditing authority of the county, provided, how-
     ever, that this section shall not be applicable
     to any person, firm or corporation operating or
     doing business under or bx virtue of any written
     contract with the county.
Sections 3 and 4 provide the method for enforcing the provisions
of the Act.
          In construing the provisions of Section 3 of Article I
of the Constitution of Texas and the Fourteenth Amendment to the
Constitution of the United State!S, it was held in Rucker v. State,
342 S.W.2d 325, 327 (Tex.Crim. 1961):
          II
           . . . As these provisions have been con-
     strued by the highest courts of this state as well
     as by the Supreme Court of the United States, a
     state law is not repugnant to either constitutional
     provision so long as unequal treatment of persons
     is based upon a reasonable and substantial classi-
     fication of persons. Unequal treatment of persons
     under a state law which is founded upon unreason-
     able and unsubstantial classification constitutes
     discriminatory state action and xiolates both the
     state and federal constitutions.   (Citing numerous
     authorities).
The Court concluded:
          'There appears no reasonable and substantial
     classification of persons which justifies the
     imposition of a $25 fine upon peddlers, salesmen,
     and solicitors and a $200,,fineupon all other
     persons for the same act.
          We believe the same principle is applicable to the pro-
visions of House Bill 1089. There appears no reasonable or sub-
stantial classification of persons which justifies requiring certain


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Hon. Wallace E. Dingus, page 3               (M-916)


county officials to report and pay to the county monies received
by them in the operation of a private business on public property
and not require other officials to do likewise.
          It is therefore our opinion that the provisions of House
Bill 1089 violate the provisions of Article I, Section 3 of the
Constitution of Texas and the Fourteenth Amendment to the Constitu-
tion of the United States.
            Section 17 of Article I of the Constitution of Texas
provides:
         ‘Sec. 17. No person's property shall be
    taken, damaged or destroyed for or applied to
    public use without adequate compensation being
    made, unless by the consent of such person; and,
    when taken, except for the use of the State, such
    compensation shall be first made, or secured by
    a deposit of money; and no irrevocable or un-
    controllable grant of special privileges or im-
    munities, shall be made; but all privileges and
    franchises granted by the Legislature, or created
    under its authority shall be subject to the con-
    trol thereof."
Section 19 of Article I of the Constitution of Texas provides:
          "Sec. 19. No citizen of this State shall be
     deprived of life, liberty, property, privileges or
     immunities, or in any manner disfranchised, except
     by the due course of the law of the land."
          Section 17 of Article I of the Constitution of Texas
has reference to the exercise of the right of emminent domain,
while Section 19 of Article I constitutes a limitation on the
exercise of the police power by the State. Livingston v. Ellis
County, 68 S.W. 723 (Tex.Civ.App. 1902, no writ); State v. Richards,
         166 301 S W 2d 597 (1957); State v. City of Austin, lb0 T ex.
$%?%i    S.WI2d 737’(ig6o).
          The test that should be used in determining whether a
statute is an arbitrary or unreasonable exercise of police power
is stated in Houston & T.C. Ry, Co. v. City of Dallas, 98 Tex.
396, 84 S.W. 648 (1905), as follows:
          "The power is not an arbitrary one, but has
     its limitations. It is commensurate with but
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Hon. Wallace E. Dingus, page 4             (M-916)


     does not exceed the duty to provide for the real
     needs of the people in their health, safety, com-
     fort, and convenience as consistently as may be
     with private property rights. As those needs
     are extensive, various, and indefinite, the power
     to deal with them is likewise broad, indefinite,
     and impracticable of precise definition or limita-
     tion. But as the citizen cannot be deprived of
     his property without due process of law, and as
     a privation by force of the police power fulfills
     this requirement only when the power is exercised
     for the purpose of accomplishing, and in a manner
     appropriate to the accomplishment of, the purposes
     for which it exists, it may often become necessary
     for courts, having proper regard to the consti-
     tutional safeguard referred to in favor of the
     citizen, to inquire as to the existence of the
     facts upon which a given exercise of the power
     rests, and into the manner of its exercise, and
     if there has been an invasion of property rights
     under the guise of this power, without justifying
     occasion, or in an unreasonable, arbitrary, and
     oppressive way, to give to the injured parky that
     protection which the Constitution secures.
          Applying the foregoing principles to the provisions of
House Bill 1089, it is our opinion that its provisions ;at;zt
the proper exercise of the police power of the State.
exercise of the police power of the State, the Legislature of
course could prohibit the use of public buildings by private
businesses and prohibit the conduct of private business in
public offices. In exercising such power, however, the Legis-
lature must treat every private business alike and not arbitrarily
apply such provisions to only a few unless there is a reasonable
basis for the classification. In the instant case it does not
prohibit the use of public buildings by private businesses.
See Tarrant County v. Rattikin Title Co., 199 S.W.2d 269 (Tex.
Civ.App. 1947), recognizing the authority of the commissioners
court-to furnish space in the courthouse-to an abstract company
in which to conduct its business. It demands forfeiture of
monies without adjudication and does not treat all public officials
or private businesses alike.
          It is therefore our opinion that the provisions of House
Bill 1089, Acts 62nd Legislature, R.S. 1971, are unconstitutional,
being in violation of Sections 3 and 19 of Article I of the Consti-
tution of Texas and the Fourteenth Amendment to the United States
Constitution.
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Hon. Wallace E. Dingus, page 5            (M-916)


                      SUMMARY
         House Bill 1089, Acts 62nd Leg., R.S. 1971,
    requiring certain county officials to report and
    pay to the county certain monies received by them
    from the operation of a private business on public
    nroverts. is unconstitutional. beina in violation
    bf Sections 3 and 19 of Articie I o? the Constitu-
    tion of Texas and the Fourteenth Amendment to the
    United States




Prepared by John Reeves
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
W. E. Allen, Co-Chairman
J. C. Davis
Larry Craddock
Jim Broadhurst
Roland Allen
MEADE F. GRIFFIN
Staff Legal Assistant
ALFRED WALKER
Executive Assistant
NOLA WHITE
First Assistant




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