Honorable C. J. Eden                  Opinion NO. c-244
County Attorney
Stephens County Courthouse            Re:   Constitutionality of
Breckenridge, Texas                         Article 667, Section
                                            104, V.P.C.
Dear Mr.   J&n:

     In your recent letter to this office you stated the
following facts:'
        "There Is only one incorporated city or town
     located in Stephens County Texas, and that
     being Breckenridge. Accorthg to the 1960 fed-
     eral census, Stephens County contained a total
     population ~of8,885, and the city of Breckenridge
     contained a total population of 6,450. Prior to
     January 1, 1957, the'City of Breckenridge, by
     ordinance, prohibited the sale of beer on Sunday
     within the limits of said city."
     Based upon these f'aots,your letter requeststhe opinion
of this office as to whether the third paragraph of Section
103 of Article 667 of Vernon's Texas Penal Code applies to
Stephens County and, if so, whether such provision is constltu-
tiona1.
     The third paragraph of such article reads as follows:
        "When in a county in which only one incorpo-
     rated cl&y or town is located and said incor-
     porated city or town has wit&n its limits a
     majority of the total population of said county
     according to the last preceding Federal Census
     and said incorporated city or town has, prior 60
     January 1, 1957, by valid charter amendment or
     ordinance, shortened the ~hours of sale of beer
     permitted on Sundays by Section 10 of Article II
     of this Act, then the Commissioners Court of said
     county is hereby given the power after publication
     of notice for four (4) consecutive weeks in some
     newspaper of general circulation published in



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Hon. C. J. Eden, page 2 (C-244)


    said county, or if there be no such newspaper
    published in said county then in some newspaper
    published in a nearby county and generally circu-
    lated in said county, to enter an order pro-
    hibiting the sale of beer on Sundays during the same
    hours when it is prohibited by said charter amend-
    ment or ordinance In any part or all of the areas
    within the prescribed limits of said county lying
    outside of said incorporated &ity or town.'
     Eased upon the facts which you have stated, It Is quite
apparent that Stephens County is wlthin the class of counties
embraced by the foregoing language and you are hereby so advised.
The following discussion and authorities will,be directed
toward the constitutionality of this language.
     Since the provision in question is not, by its terms,
applicable in all counties generally, we shall first consider
whether it is proscribed as a local or special law by Section
56 of Article III of the Texas Constitution. In our op:';;on
it is. Our Supreme Court In Miller v. El Paso County
Tex. 370, 150 S W.2d 1000 (1941) has succinctly state& the
prevailing rule with regard to legislation of the type here
under consideration at page 1001-1002 of 150 S.W.2d:
       "Notwithstanding the above constitutional
    provision the courts recognize in the Legislature
    a rather broad power to make classifications
    for legislative purpos~esand 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 particular locality; but such legislation
    must.be intended to apply uniformly to all who
    may come within the classification designated in
    the Act, and the classification must be broad
    enough to include a substantial class and must be
    based on characteristics legitimately dlstinguish-
    ing such class from others~with respect to the
    public purpose sought to be accomplished by the
    proposed legislation. In other words, there must
    be a substantial reason for the classiflcatlon.
    It must not be a mere arbitrary device resorted
    to for the purpose offgiving what is in fact, a
    local law the appearance of a generai law."
    (See also the oases there cited.)




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Hon. C. J, Eden, page 3 (c-244)


     Looking at the provision in question, we see that it is
applicable only in counties:
     (1)   in which there is only one incorporated town or
           city; and
     (2) which incorporated town or city has within its
         limits a majority of the population within the
         county according to the last preceding Federal
         census; and
     (3)   which incorporated town or city has prior to
           January 1, 1957, by valid charter amendment
           or ordinance, shortened the hours permitted for
           the sale of beer on Sunday.
     While it is undoubtedly the purpose of this provision of
Article 667-i@  to provide a process whereby the legal hours
for the sale of beer on Sunday may be made uniform throughout
those counties in which it is applicable, In our opinion the
class of counties affected is without substantial basis or
distinguishing features and is therefore proscribed as a local
or special law by Section 56 of Article III of the Texas Con-
stitution.
     Our reason for so holding becomes obvious when one tries
to justify the inclusion within the operation of the statutory
provision A County, in which the required ordinance or charter
amendment was adopted on December 31 1956 andzthe exclusion
from such class of B County, in which such'ordinance or charter
amendment was adopted on January 1, 1957 &r for that matter
at any time thereaftec%' In other words, the question of whether
or not the requisite ordinance or charter amendment was adopted
prior to January 1, 1957 or subsequent thereto bears no reasonable
relation to the purposes which the legislation is designed to
accomplish therefore the segregated category is not substan-
tially distinct from ihe other. We can perceive of no logical
or rational basis for the classification made by the legisla-
ture in this instance.
     The foregoing discussion and.holding: has been directed
solely to the third paragraph of Section 1.04of Article 667
of Vernon's Texas Penal Code. Article 667-103 was enacted as
Senate Bill 20 Acts Ssth~Legislature, Regular Session, 1957,
Ch. 270 p. 604 and such Act contains a severability clause.
By striking onl$ the third paragraph of the Act, the portion
remaining is complete in itself and capable of being carried



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Hon. c. J. Eden, page 4 (C-244)


into effect within-the limits of the expressed legislative
intent. Therefore, this opinion does not express itself upon
the constitutionality of the remainder of Article 667-l+.



            The third paragraph of Article 667-103, V.P.C.,
         is a local or special law prohiblted by Section
         56 of Article III of the Texas Constitution and
         Is therefore unconstitutional; this portion of
         the Article being severable, we express no opinion
         on the constitutionality of the'remainder of
         Article 667-103, V.P.C.
                               Very tt?l;Ly.~yours,
                               WAQGONER CARR
                               Attorney General




                                    Assistant
wos ml

APPROVED:
OPINION COMMITTEE
W. V.,Geppert, Chairman
Scott Garrison
Lloyd Martin
Linward Shivers
Pat Bailey
APPROVED FOR THE ATTORNEY GENERAL
By: Stanton Stone




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