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                 THEATTOWNEY                 GENERAL
                               OFTEXA~




        Honorable T.J. Rodgers       Opinion No. C- 481
        District Attorney
        Young County Courthouse      Re:   Constitutionality of Chap-
        Graham, Texas                      tsr 180, page 373, Acts,
                                           59th Legislature, codified
        Dear Mr. Rodgers:                  as Article 2094, V.C.S.

                  You have requested the opinion of this office as to
        the constitutionality of an amendment to Article 2094, Vernon's
        Civil Statutes, which amendment was enacted by the 59th Legis-
        lature, and reads in part as follows:

                  “Article 2094.   Selecting names for jury wheel.

                 "(a) Between the first and fifteenth days of
            August of each year, in each county specified in this
            Article, the tax collector, sheriff, county clerk and
            district clerk of the county, each in person or re-
            presented by one of his deputies, shall meet at the
            county courthouse and select from the list of qualified
            jurors of the county as shown by the tax lists in the
            tax assessor's office for the current year the jurors
            to serve the district and county courts of the county
            for the ensuing year, in the manner provided by law.

                  *l(b) All population figures mentioned in this
             Article refer to the population according to the last
             preceding federal census.

                  "(c) The provisions of subsection (a) of this
             Article apply to a county having a population of at
             least 46,000.

                  " Id) The provisions of subsection (a) of this
             Article also apply to a county containing a city having
             a population of at least 18,000.


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Hon. T.J. Rodgers, page 2 (C- 481)


         "(e) The provisions of subsection (a) of this
    Article also apply to a county having a population of
    at least 16,700 and containing a city having a popu-
    lation of at least 8,000 but not more than 8,950.

          "(f) The provisions of subsection (a) of this
     Article also apply to a county having a population of
     at least 20,000 and containing a city having a popu-
     lation of at least 13,000 if the county is within a
     judicial district common to one or more other counties
     all of which employ the jury wheel system.

          "(9) The provisions of subsection (a) of this
     Article also apply to a county which has two or more
     district courts holding sessions within the county,
     unless the county has a population of less than 18,500
     and the judicial districts of which it is a part embrace
     more than two counties.

          "(h) The provisions of subsection (a) of this
     Article also apply to a county having a population of
     at least 19,000 but not more than 19,800, and contain-
     ing a city having a population of at least 12,000 but
     not more than 12,500.

          "(i) The provisions of subsection (a) of this
     Article also apply to a county having a population of
     at least 21,000 and containing a city having a popu-
     lation of at least 7,000 but not more than 7.200."

          You advise us that young County fits the population
bracket established in subsection (e) above, and desire the ad-
vice of this office before instituting the jury wheel system
in Young County, for the reason that the quoted statute appears
to be a local or special law, at least in part. Examination
of the 1960 Federal Census figures leads us to believe that
only three counties, Young, Titus and Kerr, out of the 254
counties in this State, are included in the bracket established
by subsection (e).

          Article III, Section 56, of the Texas Constitution,
reads in part as follows:


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Hon. T.J. Rodgers, page 3 (C- 481)



          "The Legislature shall not, except asotherwise
     provided in this Constitution, pass any local or special
     law authorizing:
          II. . .

          II
               .   .   .   Summoning or empanelling grand or petit
    juries ;
          II. . .II

          The power of the Legislature to make classifications
in prescribing the method of selecting juries is recognized
in Northern Texas Traction Co. vs. Danforth, 116 S.W. 147
(Tex.Civ.App., 1909~,error ref.), and a number of other cases.
See Merkel vs. State, 75 Tex.Crim. 551, 171 S.W. 738 (1914),
and Herrera vs. State, 78 Tex.Crim. 259, 180 S.W. 1097 (1915).
But in order for the statute to escape the condemnation of be-
ing a local or special law, there must be a reasonable basis
for the classification. Rodrisuez vs. Gonzales, 148 Tex. 537,
540, 227 S.W.2d 791, 793 (1950), states the rule to be as
follows:

         "The primary and ultimate test of whether 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."

          In Miller vs. El Paso County, 136 Tex. 370, 374,
150 S.W.2d 1000, 1001 (1941), the court differentiated a gen-
eral law from a special law in the following language:

         "No&withstanding the-above constitutional pro-
    vision LArt. III, Sec. 5g, the courts recognize in
    the Legislature a rather broad power to make classi-
    fications for legislative purposes and to enact laws
    for the regulation thereof, even though such legis-
    lation may be applicable only to a particular class
    or. in fact, affect only the inhabitants of a parti-
    cular locality: but such legislation must be intended
    to apply uniformly to all who may come within the
    classification designated in the Act, and the classi-
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Hon. T.J. Rodgers, page 4 (C- 481)



     fication must be broad enough to include a sub-
     stantial class and~must be based on character-
     istics legitimately distinguishing such class
     from others with respect to the public purpose
     sought to be accomplished by the proposed legis-
     lation. In other words, there must be a sub-
     stantial 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."

          We think this further language in the Miller case
is applicable here:

           "The peculiar limitations employed by the Legis-
     lature in this instance to segregate the class to
     be affected by the legislation not only bears no
     substantial relation to the objects sought to be
     accomplished by the Act, but the purported class
     attempted to be so segregated is, in fact, not a
     class distinct in any substantial manner from
     others in this State." H. at 375, 150 S.W.2d at
     1002.

          In the light of the foregoing cases, we are of the
opinion that subsection (a) of the amendment to Article 2094,
Vernon's Civil Statutes, is a local or special law and is
therefore.unconstitutional. We must also observe that sub-
sections (h) and (i) are subject to the same objections and
are also unconstitutional. See Attorney General's Opinions
R-2382 (1951); C-227 (1964): C-220 (1964); C-473 (1965).

            We note that the statute in question does not con-
tain a severability clause. Of course, this in itself does
not require that the entire Act fall, since such a severa-
bility clause provides merely a rule of construction to aid
in determining the legislative intent. Citv of Houston vs.
State em rel Citv of West Universitv Place, 171 S.W.2d 203
(T~.Civ.App.,    1942, reversed on other grounds in 142 Tex.
190, 176 S.W.2d 928). The invalid portions of our present
statute are not integral parts of the statute and their re-
moval will have no effect upon the operation of the remain-
ing portions.
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Hon. T.J. Rodgers, page 5 (C- 481)



          In accordance with the foregoing, it is the,opinion
of this office that Article 2094, Vernon's Civil Statutes, as
amended by the 59th Legislature, contains three subsections,
(e), (h) and (i), which are unconstitutional as being local
or special laws. It is further the opinion of this office
that the aforementioned subsections are severable from the
remainder of the statute, and that the statute does not fall
in its entirety.

          This opinion is not to be construed as holding that all
of the remaining provisions of Article 2094 are constitutional.
Rather, this opinion is directed solely to those provisions of
the statute which are clearly unconstitutional in the applica-
tion of population brackets.


                      SUMMARY

          Subsections (e), (h) and (I) of Article
     2094, V.C.S., as amended by the 59th Legis-
     lature, are unconstitutional as being local
     or special laws.

          The aforementioned subsections (e), (h)
     and (i) are severable from the remainder of
     the statute.

                           Yours   very truly,

                           WAGGONBRCARR
                           Attorney General




                                Assistant

MLQ:ra

APPRGVRD;

OPINION COMMITTEE
W.V. Geppert, Chairman
                           -2279-
Roy Johnson
John Banks
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Hon. T.J. Rodgers, page 6 (C- 481)



Robert Lemens

APPR0IE.DFOR THE ATTORNEY GENERAL
By: T.B. Wright




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