_‘^                                                                    R-852




                                         OFFICE      OF
                              THE ATT         RNEY    GENERAL
                                       AUSTIN,TEXAS
      PRICE  DANIEL
      ATTORNEYGENERAL                    November 15, 1947

               Eon. Ernest Guinn         Opinion No. V-432
               County Attorney
               El Paso County           Re:   Constitutionality of H. B.
               El Paso, Texas                 796, Acts 50th Leg., 1947,
                                              as it relate3 to juvenile
                                              officers in El Paso County.
               Dear     HP.   Quinn:

                         Your recent request for an opinion of this
               office relates to the constitutionality of H. B. ,796,
               Acts of the 50th Legislature, 1947. It is assumed that
               your request pertains to El Paso County; and, therefore,
               this opinion will be limited to that portion of the Act
               relating to those counties with a population of eighty
               thOUsend 80,000) and less than one hundred and fifty
               thousand t150,000) inhabitants. H. B. 796 is an Act
               amending Article 5142, V.C.S., and is in part as fol-
               lows:
                             "Provided that in counties havin a
                        population of eighty thousand (80,0007 and
                        less than one hundred and fifty thousand
                        (150,000), the county judge may appoint a
                        juvenile officer subject to the approval of
                        the County Juvenile Board for a period not
                        to exceed two (2) years from date of appoint-
                        ment at a salary not to exceed Three Hundred
                        and Fifty Dollars ($350) per month and ex-
                        penses as recommended by the Board a;tc;p-
                        proved by the Commissioners Court.
                        juvenile officer may select such assistant
                        juvenile offlcers~,asare necessary to carry
                        out the provisions of this Act, subject to
                        the approval of the county judge and the
                        County Juvenile Board; provided the number
                        may not exceed ten (10). The salaries and
                        expenses of suoh assistant juvenile officers
                        shall be in amounts recommended by the Board
                        subject to approval of the Court.
                             "Provided that in counties h8Vlng 8~
                         opulatlon of one hundred and fifty thousand
                        P150,000) or more, and containing a city of
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                                                                     ‘.
                                                                      I



Hon. Ernest Guinn - Page 2   (v-432)


    one hundred thousand (100,903) or more, the
    County judge may eppoint-8 juvenile officer,
    subject to the approve1 of the County Juve-
    nile Board, to serve for 8 period not to ex-
    ceed two (2) years from the dete of appoint-
    ment, and whose extre duties shall be to make
    investigations for the Commissioners Court on
    appllc8tlon3 for charity, or edmittance into
    detention home3 or orphsn homes Cre8ted by
    such counties. The salary of such juvenile
    OfficeP shell not exceed Three Hundred Dol-
    lars ($300) per month, his allowance for ex-
    penses not to exceed Two Hundred Dollars ($200)
    a yesr. Such juvenile officer mey select aa-
    slatant juvenile officers, subject to the ap-
    prove1 of the county judge and the County Juve-
    nile Board, the number of such assistant juve-
    nile officers not to exceed one (1) assistant
    to each twenty-five thousand (25,300) popula-
    tion. The selariea of such assistent juvenile
    officers ah811 be the same as that fixed by
    the General L8w in Article 3902 of the Revised
    @vi1 Stati&    af Texas, 1925, for assistants
    to othez.eopqty orficials. Such assistant
    juvenile officers msy be allowed ex enses not
    to exceed Two Hundred Doll8rS ($200P per year
    esch."
          &ti,cle III, Section   56, constitution of Texas.'
provides in part as follows:
         "The Legislature aball not, except as
    otherwise provided in this Constitution, pass
    any local or special lew, euthorising:. . .
          "Regulating the affairs of counti.es,cit%es,
     towns, election or sahool districts; . . .
          "Creating offices, or prescribing the psw-
     era and duties of officers, in counties. . .
          The question for determination is whether this
Act purporting to fix the compensation of juvenile Offi-
cers of counties in certain population brackets ViOlate
the above constitutional provision relating to 10~81 or
SpeCi8.118W3, In 8n spproach to this question, the COUrt
In Oakley v. Kent, 181 S.W. (26) 919, steted as follows:
                                           -.



Hon. Ernest Guinn - P8ge   3, (V-432)


          "'A law which epplles only to 8 part of
     8 nAtUral cl883 of persons or things must
     predicate its inclusi,onof the p8rt end ex-
     ClUSiOn of the balance upon ChRracteriatics
     peculisr to the pert, which, considering the
     objects 8~ndpurposes of the law, afford ree-
     3On8ble ground for restricting the applica-
     tion of the law to the pert, Gl83'3ifiC8tiOn
     must be reaaoneble and netur8.1,not arbitrery
     8nd C8priciOua. ArbitrRry designation is not
     clasaificstion. The vice of locel or special
     laws is that they rest on arbitrerg designe-
     tiOn; th8t they do not embra~ce8nd sffect 811
     of the class to which they sre naturally re-
     lated. . . .
         "'Because population 83 * basis for clas-
    aificetion hea been SU3t8ined by the courts in
    respect to legislation on ce.rtainsubjects, it
    has been 88SUmed, erroneously, th8t population
    brackets will aerve in all instances to avoid
    the condemnation of the Constitution. This
    misteken assumption proceeds from 8 feilure to
    note th8t population h33 been austsined aa 8~
    besis for claaaificetion only in those Instances
    where it bore 8 reasoneble relation to the ob-
    jects 8nd purposes of the law and ~8s founded
    upon rational difference in the necessities or
    conditions of the groups subjected to different
    laws. Where it has been determined tkRt, con-
    sidering the objects 8nd purposes of the lew,
    differences in population afford no rational
    basis for discriminating between groups of the
    acme nstura1 Cl833, cl8saific8tion on the b8sia
    of population has been termed a,rbitPe,ry
                                            aelec-
    tion, and the law has been held to be specie1
    end lOC81. . . .'II
          In the case of Clark v. Finley, 93 Tex. 171, 54
S.W. 343,the Supreme Court recognized the fact that the
Legisleture could resort to populetion br8ckets for the
purpose of fixing fees of officers in certain cases. But
there must be a subatential re8son for the classification.
It must not be 8 mere 8rbitrflrydevice resorted to for
the purpose of giving what is in f8Ct 8 lOC81 18W the 8p-
pear8nce of a gener81 18w. Miller v. El P8ao County, 136
Tex. 370, 150 S.W. (2d) 1000; Anderson v. Wood, 137 Tex.
f;;, 152 S.W. (2d) lOo4; Ex psrte Csrson, 159 S.W. (28)
Hon. Ernest Guinn - Page 4   (V-432)


          In the case of Bexar County v. Tynan,   128 Tex.
223, 97 S.W. (26) 467, the Court stated:

          'Conversely, we think it true that if
    the Legislature ignores the obvious fact
    that the work of county officers Is pro-
    portionate to population and classifies
    counties in such way that the compensation
    Of OffiC8PS Of a COUIltyhaving a large pOpU-
    lation is fixed far below the compensation
    allOWed like officers In small counties,
    such action amounts to fixing a classlfica-
    tion which is arbitrary and which has no
    true relevancy  to the purpose of the legis-
    lation. we think that it necessarily fol-
    lows from all the circumstances that the
    Legislature Intended to single out Bexar
    County as being the only county intended to
    be e,ffectedby the legislation, and the act
    was undoubtedly a special lav."
          H. B. 796 provides, among other things, that
the salary of juvenile officers in counties having a
population of 150,000 inhabitants OP more and oontain-
ing a city of 100,000 inhabitants or more shall not ex-
ceed $300 er month with an a.llowancefor expenses not
t0 eXCe8d 1200 a year. The juvenile officer In counties
in this population bracket may be allowed one assistant
for eaoh 25,000 population. In counties with a popula-
tion of eighty thousand (80,000) a,ndless than one hun-
dred fifty thousa.nd(150,000) Inhabitants, the maxisurs
salary of juvenile officers is $350.00 per month and ex-
penses 8,srecommended by the Board and approved by the
Commissioners' Court. The juvenile officer in COUIIti8S
in this population bracket may be allowed a leaXiISUm  of
ten assistants. By way of comparison a juvenile officer
in a county with a population of 150,003 inhabitants
would b8 entitled to a salary of $300 per month and Six
assistants, whereas a juvenile officer in a county with
a population of 14g,OOO inhabitants would be entitled
to a salary of $350 per month and ten assistants. It is
Well Settled that an Act 8XC8pting Certain COtlnti8SOr
fixing salaries arbitrarily is a local or special law
within th8 meaning of the COnStitUtion. If, by the terms
of an Act, counties are Classifi8d in such a way that
the oompeneatlon of a juvenile officer of a oounty hav-
ing a large population is fixed far below the compensa-
tion allowed the jUV8nil8 Officer in Sl%&llel'
                                             COUntiBS,
Hon. Ernest Guinn - Page   5 (V-432)


the same amounts to fixing a classification which is
arbitrary and has no relevancy to the purpose of the
Act. It therefore follows that the Act allows 'uve-
nil8 Officers in Counties with a population Of 4 0,000
to 150,000 inhabitants larger salaries than those juve-
nile officers in larger counties. Such classification
is an arbitrary one and is void as a special or local
law. Since the classification does not bear a reason-
able relation to the object and purposes of the law, it
is the opinion of this Department that the portion of
H. B. 796 relating to those counties with a population
of 80,000 to 150,000 inhabitants is a local or special
law and is in contravention of Article III, Section 56,
of the State Constitution.
                           SUMMARY
         That portion of H. B. 796, R. S., 50th
    Leg.9 1947, relating to the appointment of
    juvenile officers in El Paso County and re-
    lated counties In the same population bracket
    is a looal or special law containing arbi-
    trary classifications and is in contravention
    of Art. III, Sec. 56, of the Texas Constitu-
    tion. Bexar County v. Tynan, 97 S.W. (26)
    467; Clark v. Finley, 54 S.W. 343;Oakley v.
    Kent, 181 S.W. (26) 919; Anderson v. Wood,
    152 S.W. (26) 1084, 137 Tex. 201; Miller v.
    El Paso County, 150 S.W. (2d) 1000.
                                     Very truly yours
                               ATTORNEY GENERAL OF TEXAS


                               BYBurn811 Waldrep
BW:djm                               Assistant


                               APPROVED:



                               ATTORNEY GENERAL
