Honorable W. G. Woods, Jr.
County Attorney
Liberty County
Liberty, Texas     .
                               Opinion No. C-227
                               Re:    Constitutionality of House
                                      Bill 757, Acts of the 58th
                                      Leglalature, Regular Ses-
                                      sion, 1963, Chapter 395,
                                      page~973, codified in Ver-
                                      non's was Article 2103b,'
                                      Vernon's Civil Statutes,
                                      relating to use of a jury
Dear Mr. Woods:                       wheel in certain counties.
       You have requested our opinion on the constitutioq-
allty of House Bill 757, Acts of the 58th Legislature,
Regular Session, 1963, Chapter 395, page 973, codified 1n
Vernon's as Article 2103bi Vernon's Civil Statutes.
       Section 1 of this Act provides:
           "In any county not presently required
      to use the jury wheel system and having a
      population of twenty-nine thousand (29,000)
      or more, according to the last preceding
      Federal Census, the Commissioners Court upon
      determining that the level and distribution
      of the population of the county is such that
      the use of a,jury wheel would'facilitate the
      administration of justice may, thereafter,
      adopt the use of the jury wheel for the selec-
      tion of jurors for service in the district and
      county courts."
       Section 56 of Article III of the Constitution of Texas
prohibits the Legislature from passing any local or special
law regulating the summoning or empaneling of juries. The
cower of the Legislature to make classifications In orescrib-
ing the method of selecting juries is recognized by the courts
of this State, Northern Texas Traction Co. v. Danworth, 116

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Hon. W. G. Woods, Jr., Page 2 (C-227)


S;W: 147 Civ.App. 1909, error ref. ); Merkel v. State, 171
S.WY738 ITex.Crim. 1914); Herrera v. State, lo- * . 1097
(Tex.Crlm. 1915).
      fin Rodriguez v. Gonzales, 148 Tex. 537, 227 S.W.2d 791,
the Court states the rule determining whetheran Act consti-
tutes a local or special law within ??hemeaning of Section 56
of Article III of the Con,stitutlonof Texas, as follows:
           "The primary and MultiMate 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 v. El Paso County, 136 Tex. 370, 150 S.W.2d
1000, the Court differentiated the general law from special
law in the following language:
           "Notwithstanding the~above constitu-
      tional provision    rt.III, Sec. 5$', the
      courts recognize P n the Legislature a
      rather broad power to make classifications
      for legislative purposes and to enact laws
      for the regulation thereof; even though
      such legislation 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 ~substantialclass and must be
      based on characteristics legitimately dis-
      tinguishing such class from others with
      respect to the public purpose sought to be
      accomplished by the proposed leglalation.
      In other words, there must be a substantial
      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."
       Since the Act is applicable to counties having a popu-
lation of 29,000 or more, according to the last preceding
Federal Census, it Is our opinion that Article 2103b, Vernon's
Civil Statutes, Is not in violation of the provisions of Sec-
tion 56 of Article m   of the Constitution of Texas. See At-
torney General's Opinion C-220 (1964).

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Hon. w. G. Woods, Jr., page 3 (c-227)


       The remaining question to be determined is whether the
provisions of Article 2103b constitute an unlawful delegation
of legislative power. “It Is noted that the use of the jury
wheel for the selecting of jurors may be adopted by the com-
missioners court “upon determining that the level and dlstrlbu-
tlon of the population of the county Is such that the use of
a jury wheel would facilitate the administration of justice.“,
In Reynolds v. Dallas County, 203 S.W.2d 320 (Tex.Clv.App. 19&T),
the Court, In prescribing the conditions under which the Legis-~
lature may,delegate to a governing body such as the commissioners
court the power to accept or rejectthe benefits and provisions
of an Act, stated:’
            ”    . ItsIs a long and well-settled
       rule o&constitutional law’that the legls-
       lature cannot delegate to the people OP any
       board, bureau, commissioners court or other
       administrative or legal body or institution
       its authority to make laws; but that does
       not mean the legislature Is without author&
       ity to confer a’power upon a municipal cor-
       poration or its governing body authority
      .and’power to accept or reject the benefits
      ‘and provisions of a general law legally en-
       acted by the legislature. Conditions can,
       and frequently do, arise in which the legls-
       lature itself cannot, in a practical and
       efficient manner, exercise certain types of
       authority. It would seem the subject mat,ter
       of the statute In question furnishes a prac-
       tical demonstration of such a condition.
       Obviously the voting machines are designed
       to facilitate voting In those localities and
       precincts where, on account of the large num-
       ber of electors eligible to vote, the proc-
       ess of voting becomes congested, and makes
       it difficult for the election to become com-
       pleted and all electors accommodated within
       the 'timeallowed for its completion; whereas,
       in other sections and precincts, no difficulty
       in that respect is encountered. In the first
       class of sections and precincts the voting
       machines are no doubt beneficial and perhaps
       necessary but they are not needed in the latter
       class. It would be difficult if not Impossible,
       for the legislature to ascertain the places
       where the machines were needed and distinguish
       those In which they are not needed. In such
       conditions it is the well-established rule

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Hon. W. G. Woods, Jr., Page 4 (C-227)


        that the Legislature la authorized to dele-
        gate to local authorities the power and au-
        thority to d'eterminewhether'or not a general
        statute shall become effective 'within their
        respedtlve~jurisdlCtlons. 'Johnson v. Martin;
        75 Tex:50, '12 S.W.'321; Trimmier v. CaXton,
        116 Tex; 572, '296 S.W. 1070; State Highway
        Dept. v. Gorham, 139 Tex. 361, ,162 S.W.2d
        934.   In Trimmier v. Carlton, supra, Chief
        Justice Cureton, speaking on'the question
        for the Supreme Court,; observed that the exer-
        cise of that particular type of authority by
        the legislature is recognized as fan exception
        to the general language of limitation in the
        Constitution; that it was merely tantamount
        to sayfng that the'Constltution Itself does
        not require the impracticable or the lmpos-
        slble."
       It Is our opinion that the principles announced ln
Reynolds v. Dallas County are applicable to the provisions
of Article 2103b Vernon's Civil Statutes. You are therefore
advised that the'leglslature Is authorized to delegate to
local authorities the'power and authority to determine whether
the use-of a jury wheel would facilitate the admlnlstratlon of
justice, and therefore it isour opinion that House.Blli 757,
Acts of the 58th Legislature, Regular Session, 1963, Chapter
395, page 973;codlfied in Vernon's as Article 2103b, Vernon's
Civil Statutes, is constitutional.
                           SUMMARY
             House Bill 757, Acts of the 58th Legis-
             lature, Regular Sess&on, 1963, Chapter
             395, page 973, codified In Vernon's~as
             Article 2103b, Vernon's Civil Statutes,
             is constitutional.
                                  Yours very truly,
                                  WAGGONER CARR
                                  Attorney General


                                        John Reeves
JR:me                                   Assistant



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Hon. W. G. Woods, Jr., page 5 (Ct227)


APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
James M.~Strock
Edward R. Moffett
Linward Shivers
Paul Phy
APPROVED FOR THE ATTORNEY GENERAL
By: Howard W. Mays




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