                           May   19,   1965



Honorable John A. Traeger, Chairman
Municipal and Private Corporations
   Committee
House of Representatives
Austin, Texas                      Opinion No. C -442
                                   Ret Constitutionality of
                                        House Bill 503 relating
                                        to purchasing procedures
                                        of gas and electric com-
Bear Mr. Traeger:                       panies of certain cities.
        You have requested the opinion of this office on the
constltutlonallty of House Bill 503 of the 59th Legislature.
        Section 1 of House Bill 503 reads as follows:
             "This Act applies to the purchasing
        procedures of gas and electric companies,
        owned by a municipal corporation In all
        counties having a population of not less
        than 550,000 nor more than 950,000 accord-
        ing to the last preceding federal census."
        By virtue of the population bracket quoted above, the
provisions of House Bill 503, at the present time, are only
applicable to cities in Bexar County, since the population
bracket for the present time excludes all other cities of the
State.
        Section 56 of Article III of the Constitution of Texas
prohibits the enactment of local or special laws regulating the
affairs of counties, cities, towns, wards or school districts.
In construing the provisions of Section 56 of Article III of
the Constitution of Texas, It was held in Miller v. El Paso
County, 136 Tex. 370, 150 S.W.2d 1000 (1931):
            "Notwithstanding the above constltu-
       tional provision, the courts recognize In
       the Legislature a rather broad power to
       make classifications for legislative pur-
       poses and to enact laws for the regulation
       thereof, even though such legislation may
       be applicable only to a particular class or,
                           -2100-
Hon. John A. Traeger, page 2   (c-442)


        in fact, affect only the Inhabitants of a
        particular locality; but such legislation
        must be intended to apply unlfotily to all
        n-
        who ma
        nated In the Act, and the classification must
        be broad enough to Include a substantial
        class and must be based on characteristics
        legltlmately dlstinRulshlng such class from
        others with respect to the public purpose
        sought to be accomplished by the proposed
                      In other words, there must be
                      reason for the classification.
        It must not be a mere arbitrary device re-
        sorted to for the purpose of giving what Is,
        in fact, a local law the appearance of a gen-
        eral law. . . .' (Emphasis added).
        Likewise, it was held in Bexar County v. Tynan, 128 Tex.
223s 97 S.W.2d 467 (1936):
             "Notwithstanding It is true that the
        Legislature may classify counties upon a
        basis of population for the purpose of flx-
        lng compensation of county and precinct of-
        ficers, yet In doing so the 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 qecial law
        the form of a general law. D . e
         The above construction of Section 56 of Article III of
the Constitution of Texas was reiterated In Smith v. Decker, 158
Tex. 416, 312 S.W.2d 632 (1958),  wherein the Supreme Court
stated:
             "The use of population brackets alone,
        that Is, segregating one county by the Legis-
        lature, by reason of population for the pur-
        pose of necessary legislation, does not neces-
        sarily render a law special in nature and con-
        trary to the constitutional prohibition against
        same. However, it has long been held that the
        use of population brackets alone to direct legls-
        lation toward a particular county needing a partl-
        cular type of legislation will not in Itself save
        the law from being unconstitutional as a special
        law If the classification bears no reasonable re-
        lationship to the objects sought to be accomplished.
        . . .”
                            -2101-
Hon. John A. Traeger, page 3     (c-442)



        For additional authorities, see Clark v. Finley, 92 Tex.
171, 54 S.W. 343 (1899); City of Fort Worth v. Bobbltt, II8
Tex. 14, 36 S.W.2d 470 (1931); Ex parte Carson,159 S.W.2d 126
(Tex.Crlm. 1942); Jameson v. Smith, 161 S.W.2d 520 (Tex.Clv.App.,
1942, error ref., w.o.m.); Oakley v. Kent, 181 S.W.2d 919 (Tex.
Civ.App., 1944); Anderson v. Wood, 137 Tex. 202, 152 S.W.2d
I084 (1941); Ward v. Harris County, 209 S.W. 792 (Tex.Clv.App.,
1919, error ref.); and Duclos v. Harris County, 114 Tex. 147,
263 S.W. 562 (1924).

        Applying the test prescribed in the foregoing authorities,
we cannot conceive of any basis for excluding all cities In this
State, save and except those cities In Bexar County, from the
provisions of House Bill 503 of the 59th Legislature. Stated
another way, we can conceive of no basis for providing special
purchasing procedures of gas and electric companies owned by
municipal corporations In only one county of the State.
        In view of the foregoing, It Is our opinion that House
Bill 503 of the 59th Legislature is unconstitutional, being in
violation of Section 56, of Article III of the Constitution of
Texas.
                               SUMMARY
        House Bill 503 of the 59th Legislature Is un-
        constitutional, being in violation of Section
        56 of Article III of the Constitution of Texas.

                                   Yours very truly,
                                   WAGGONER CARR
                                   Attorney General



JR:ms:zt
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Pat Bailey
Paul Phy
Frank Booth
Ralph Rash
APPROVED FOR THE ATTORNEY GENERAL
BY: Stanton Stone
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