                           THE   ATTORNEY    GENERAL
                                    OF TEXAS


.IlX   MA-X                         July 31, 1990
A-SEY          G:ESERAL


         Honorable Bob Bullock        Opinion No. JM-1200
         Comptroller of Public
           Accounts                   Re: Effective date of amendments to
         P. 0. Box 13528              section 144(b) of article     6701d,
         Austin, Texas 78711          V.T.C.S., which allocates to munici-
                                      palities money received from traffic
                                      fines, and related questions
                                      (RQ-2033)

         Dear Mr. Bullock:

                   You ask a number of questions relative to the applic-
              ability of section 144(b) of article 6701d, V.T.C.S,  prior
              to and after the date of its amendment by the 71st Legisla-
              ture. Subsection    (b) concerns the allocation    of money
              received from traffic fines by municipalities.

                   Section 144 as amended by House Bill 243, Acts 1989,
              71st Leg., ch. 233, 8 1 (eff. Sept. 1, 1989), provides:

                          (a) Fines collected for violation of any
                      highway law as set forth in this Act shall be
                      used by the municipality  or the counties  in
                      which the same are assessed and to which the
                      same are payable   in the construction    and
                      maintenance of roads, bridges, and culverts
                      therein,   and for the enforcement    of the
                      traffic laws regulating the use of the public
                      highways by motor vehicles   and motorcycles
                      and to help defray the expense of county
                      traffic officers.

                          (b) In each fiscal vear. a municiwalitv
                      may retain,     from  fines   collected   for
                      violation of anv hiahwav law as set forth in
                      this Act. an amount ecual to 30 wercent    of
                      the municiwalitv*s revenue for the wrecedinq
                      fiscal Year from all sources, other than
                      federal funds and bond wroceeds. as shown by
                      the audit werformed under Section    103.001,
                      Local Government Code. After a municiwalitv




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Honorable Bob Bullock - Page 2   (JM-1200)




       has retained that amount. the municiwalitv
       shall send to the state treasurer anv wortion
       of a fine collected  that exceeds one dollar
       (Sl).   The state treasurer    shall denosit
       funds received under this eection     in the
       state treasurv to the credit of the aeneral
       revenue fund.

           (c) Definition:  'Interstate highway'  as
       used herein  is a portion of the national
       system of interstate and defense highways
       located within this state which now
       hereafter may be designated officially by tE=
       Texas   Highway   Commission   and   approved
       pursuant to Title 23, United States Code.

           (d) Definition:   'Speed-measuring device'
       as used herein  is any 'Doppler shift speed
       meter' or other      'radar' device    whether
       operating  under a pulse principle      or    a
       continuous-wave   principle,     photo-traffic
       camera, or any other electronic device used
       to detect and measure speed.

           (e) The provision   of Subsection   144(b),
       shall not be applicable to any municipality
       having a population of 5,000 or more inhab-
       itants according to      the last     preceding
       federal census.   (Emphasis reflects amendment
       by the 71st Legislature.)

    Section 2 of House Bill 243 provides:

          This Act takes effect September 1, 1989.
       Section   144(b),  .Uniform   Act   Regulating
       Traffic on Highways (Article 6701d, Vernon's
       Texas Civil Statutes),    as amended bv this
       Act. awwlies onlv to fines collected     bv a
       municiwalitv durina a fiscal vear that beains
       on or after the effective date of this Act.1
       (Emphasis added.)




     1. West Publishing   Company omitted this section in
Vernon's Texas Civil Statutes. That fact does not effect
the validity of this provision.




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Honorable Bob Bullock - Page 3    (JM-1200)




     Prior to amendment by the 71st Legislature      subsection
(b) of section 144 provided:

            (b) When a person is convicted in a mu-
        nicipal court of the offense of operating       a
        vehicle on a highway   in the state highway
        system, including an interstate highway,      as
        that term is defined in Subsection 144(c), at
           speed greater than is reasonable         and
        &dent     under   the    circumstances,     the
        municipal court shall remit to the state
        treasurer any portion of the fine assessed
        and collected which exceeds two dollars    ($2)
        times the number of miles per hour by which
        the offender exceeded the posted speed limit
        as such excess speed is determined        by a
        speed-measuring   device         defined       '
        Subsection 144(d). The riser of miles pi:
        hour by which an offender exceeds the posted
        speed limit is determined by subtracting    the
        posted prima facie speed limit from         the
        number of miles per hour the offender         is
        alleged to have driven at the time of the
        offense according to the summons or promise
        to appear. The state treasurer shall deposit
        funds received under this Section       in the
        General Revenue Fund.   (Emphasis added.)

     Your first question asks "Whether the 'old' 5 144(b)
continues in effect in each jurisdiction    until the  'new'
5 144(b) takes over or whether there is a gap in coverage
between the 'old' 5 144(b) from September 1, 1989, until the
'new' § 144(b) became effective    for the next municipal
fiscal year beginning after September 1, 1989."

     Prior to amendment   subsection (b) provided a formula
for determining  the division of fine money between the
municipal court and the state on each speeding ticket.     As
amended subsection (b) contains a method for calculating the
division of fine money for 'Violation of any highway law as
set forth in this Act" based on an "amount equal to 30 per-
cent of the municipality's revenue for the preceding  year."
We do not believe that the legislature intended that there
be a lapse of time between September 1, 1989, and the time
that a new fiscal year begins for the municipality.  Section
2 of House Bill 243 expressly provides that it is applicable
"only to fines collected by a municipality during a fiscal
year that begins on or after the effective     date of this
Act." We conclude that the provisions     of section   144(b)




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prior to amendment remain in effect until a municipality's
new fiscal year begins following September 1, 1989.

     Your second question concerns situations where cities
have been incorporated less than twelve months     prior to
their coming under House Bill 243, and cities that have
changed their fiscal year less than twelve months before
coming under the new law. You ask what the basis should be
for calculating the allocation  of money from traffic  fines
under these scenarios where there has not been a full fiscal
year prior to the effective date of this act.

     For cities where a full fiscal year had not elapsed
prior to September 1, 1989, the determination should be made
under subsection (b) prior to its amendment    until a full
fiscal year has elapsed. Where cities have changed their
fiscal year less than a year prior to the effective date of
the amendment, we believe the legislature intended that the
allocation be made on the basis of the last full fiscal year
prior to September 1, 1989.

     Your third question is what the basis should be for
calculating the amount of money  from traffic   fines to be
retained by cities that incorporated   after September     1,
1989. Under this scenario, we believe section 144(b), as
amended by the 71st Legislature, becomes effective at the
expiration  of the fiscal year following      incorporation.
Until such time the allocation is based on subsection     (b)
prior to its amendment.

     Your fourth question   is based on a situation where a
city has V1only recently established a municipal court and
city budget,   although  incorporated a full twelve months
prior to September 1, 1989." You ask, "how, if at all, can
these cities participate   in the revenues allowed by House
Bill 243 where they had no revenue during their    'preceding
fiscal year.'"

     We believe that section 144(b), prior to and since the
amendment resulting from House Bill 243, contemplates that a
municipality would generate revenue. Upon establishment   of
a budget and a municipal court, we will assume that the
municipality will have revenue. Until the expiration of its
first fiscal year following establishment of a budget,   the
allocation would be based on subsection (b) prior to its
amendment.

     Your fifth question raises the issue of whether   House
Bill 243 unconstitutionally discriminates  against   smaller




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cities located on the interstate highway system since
subsection   (e)   makes  section   144(b)   applicable  to
municipalities with populations of less than 5,000.     YOU
state that these smaller cities depend on traffic fines for
a substantial portion of their revenue and they feel that
they are being punished for the aggressive tactics of a few
small municipalities.

     You call attention to decisions      of our courts that
equal protection of the law is guaranteed under the United
States Constitution, Amendment 14, section 1, and the Texas
Constitution, article I. Sections 3 and 3a apply to persons
rather than municipalities,       counties,   or   governmental
agencies created by the state. &i..Ll Texas Water Quality
L,   568 S.W.Zd 738   (Tex. Civ. Appy*- Austin 1978, writ
ref'd); Harris County. v. Down1 arn 489 S.W.Zd 140         (Tex.
Civ. App. - Houston [14th Dist.je197i,   writ  ref'd).

     We believe that the constitutional question presented
is whether the statute in question violates the provision in
the Texas Constitution   prohibiting  the legislature    from
passing local or special laws.

     Article III, section 56, of the Texas Constitution
prohibits the legislature from enacting local or special
laws concerning numerous specific subjects and **in all other
cases where a general law can be made applicable."   Relevant
to your question, section 56 prohibits any local or special
law regulating the affairs of cities and towns.

     In Public Util. Comm'n v. Southwestern Water Services,
636 S.W.Zd 262 (Tex. App. - Austin 1982, writ ref'd n.r.e.),
the   court    makes   an   in-depth   examination    of the
constitutional prohibition against local or special laws as
the law has evolved through the court's construction of this
provision.   In Public Util. Comm'n the court stated:

           The literal language of art. III,        § 56
        would require the invalidation or any statute
        applying to a particular     locality or group
        because, in most cases,    \a general law can
        be made applicable.'    However, the Supreme
        court, in determining whether a specific     law
        was local or special, has looked to the
        policy    underlying     the     constitutional
        prohibition  rather than      to its    literal
        language. Accordingly, in Clark v. Finley
        93 Tex. 171, 54 S.W. 343, 345-6 (1889), th;!
        Court refused    to invalidate      a   statute




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       reducing sheriffs' and constables* fees in
       counties in which more than three thousand
       persons had voted in the last presidential
       election.

          In Clark, the Court adopted the distinc-
       tion between a general law and a special      law
       drawn by the Pennsylvania     Supreme Court in
       Wheeler v. Philadelwhia    77 Pa. 338 t-75)     v
       that 'a statute which kelates to persons       or
       things as a clasp *    a general law, while a
       statute which rela:Is to particular      persons
       or things as a class is special, and comes
       within   the    constitutional    prohibition.#
       Clark, 54 S.W. at 345 (emphasis added). This
       definition, of course, did not answer the
       question as to which particular classes were
       constitutionally suspect. The Court answered
       this question by stating the general         rule
       that the class created by the statute must
       be a real class, and not a 'pretended' class
       created by the legislature to evade the con-
       stitutional restriction.   LA        'pretended'
       class would be one which        'manifest[s]    a
       purpose to evade the constitution.'      L     54
       S.W. at 346.    Ultimately, the class created
       in a statute must bear a reasonable     relation
       to the general purpose of the legislation and
       concern a matter of general statewide      effect
       or interest.

           .   .   .   .

        [I]n Stewhensen v. Wood, 119 Tex. 564, 34
        S.W.Zd 246   (Tex. Comm'n App. 1931, opinion
        adopted), the Court determined a law prohib-
        iting certain   fishing methods  in specified
        coastal counties was not an unconstitutional
        special or local law.       Although the law
        applied to a 'closed' class of counties, this
        class reasonably    related to the    general
        object of the legislation, and involved a
        matter    of   statewide   interest  --   the
        management of coastal marine life.

           In 1959, the Court upheld a       statute
        authorizing   counties   to    issue    park
        development  bonds if those counties were
        located on the Gulf of Mexico and contained




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       an island suitable  for park purposes.   This
       statute plainly established a 'closed class'
       but was reasonably   related to the general
       object of the act -- the development        of
       public beaches -- which benefitted all the
       people of the state. Countv of amer n V.
       Wilson, 160 Tex. 25, 326 S.W.2d 16: (19g9).

     In Robinson v. Hill 507 S.W.Zd 521 (Tex. 1974), the
court held that a statut; providing for the licensing    of
bail bondsmen in counties having a population of 150,000 or
more does not violate the prohibition   against general and
special laws. In Robinson the court stated:

          Assuming as we do at this point that the
       statute by     its    terms does    not    apply
       throughout   the    State, the    primary    and
       ultimate test of whether the law is general
       or special is whether    there is a reasonable
       basis for the classification it makes and
       whether the law operates equally on all
       within the class.    [Citations omitted.]    The
       Legislature in this instance may well have
       concluded that bail bondsmen      in the more
       populous counties    should be regulated     and
       required to secure their obligations     because
       of the high incidence of crime and the
       difficulties   involved    *   enforcing    bond
       forfeitures and determini:: the net worth of
       persons engaged in the business of writing
       bonds, but that the same safeguards          and
       procedures were not necessary     and would be
       unduly burdensome in more sparsely populated
       areas. There is a reasonable basis for the
       classification    made by the law, and the
       classification is broad enough to include a
       substantial class.     The fact that counties
       just on either side of the population       line
       are similarly    situated, or that there are
       excluded counties constituting part of the
       same metropolitan area as included counties,
       does not make the classification      unreason-
       able. Any classification      on the basis of
       population is subject to this complaint,     and
       that circumstance alone is not a sufficient
       basis for holding the statutory classifica-
       tion unconstitutional.     The Legislature   has
       rather broad power to make classifications
       for legislative purposes,       and there     is




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        nothing here to suggest that the line drawn
        is arbitrary or capricious  or a mere device
        used for the purpose of giving a local law
        the appearance of a general law. m    &filler
        V.    Paso County, 136 Tex. 370, 150 S.W.2d
        1000.

     In cases in which the constitutionality of a statute is
challenged, the courts consistently grant the presumption of
validity to a statute and presume that the legislature    has
not acted unreasonably.  mbinson   v. Ii.&&, suira; Smith v.
Davis, 426 S.W.2d 827 (Tex. 1968).

     House Bill 1162, Acts 1981, 67th Leg., ch. 824, at 3134
(eff. Aug. 31, 1981), amended section 144 to exempt   larger
cities from having to share fine money        from speeding
violations on interstate highways with the state. The bill
analysis to House Bill 1162 stated that the purpose       of
subsection (b) of section 144 "was to discourage the use of
radar as a local revenue device by certain small cities   in
which most of the interstate travel is not local traffic."
It was further noted that in larger cities "the interstate
freeway system plays an important part of the city's
internal transportation  system, and much of it is local
traffic."

     While subsection    (b), as     amended by    the   71st
Legislature,  covers all violations     of highway   laws on
interstate highways rather than only speeding violations, we
perceive no less opportunity    for abuse by municipalities
that may be prompted to issue traffic citations solely for
the purpose of raising revenue.

     It is undoubtedly true that many small municipalities
that collect ~traffic fines from violations   on interstate
highways do not abuse the system to raise revenue to support
their budgets.    As noted in pobinson   any classification
based on population    is subject to this complaint.     The
legislature may well have concluded    that the chance   for
abuse in charging traffic violations on interstate  highways
was greater in small municipalities that utilize the money
generated  from traffic   fines   from nonresidents   as   a
substantial portion of their revenue. There appears to be a
reasonable basis for the classification made by section 144.
The classification is broad enough to cover a substantial
class. We believe that a court would find that the line
drawn is not a device used for the purpose of giving a local
law the appearance of general law, but that the legislation
concerns a matter    of statewide effect and interest and




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    Honorable Bob Bullock - Page 9     (JM-1200)




    therefore that section 144 is not violative of article     III,
    section 56, of the Texas Constitution.2

                           SUMMARY
              The provisions     of   section 144(b)      of
           article 6701d,      V.T.C.S.,   prior   to    its
           amendment by the 71st Legislature remain       in
           effect until a fiscal year begins       for the
           municipality    following September    1, 1989.
           The basis for calculating the allocation       of
           traffic fine money where there has not been a
           full fiscal year prior to September 1, 1989,
           is based on the fine in each speeding case
           pursuant to the allocation formula contained
           in subsection    (b) prior to its amendment
           until the expiration of a full fiscal year.
           For cities that have changed their fiscal
           year less than a year prior to the effective
           date of House Bill 243, the allocation should
           be based on the last full fiscal year prior
           to September    1, 1989.   For cities incorpo-
           rated after September        1, 1989,    section
           144(b), as  amended   by the  71st  Legislature,
           becomes effective    at the expiration of the
           fiscal year following incorporation.        Until
           such time the allocation is based on subsec-
           tion (b) prior to amendment.       In instances
           where the municipality       has only recently
           established a budget and a municipal       court,
           although incorporated    for a full year in
           which there was no revenue, the allocation is
           to be made under subsection (b) prior to its
           amendment until the expiration of the fiscal
           year following establishment     of the budget.
           Section 144.(b) of article 6701d, V.T.C.S., is
           not a local or special law as prohibited       by




         2. Without passing on its relevance to this question,
    we note that municipalities with a population of less than
    5,000 are chartered by general law pursuant to article  XI,
    section 4, of the Texas Constitution and possess only such
    powers as those given it by the legislature and those which
    may be necessarily implied therefrom. See Ex warte Ernest,
    136 S.W.2d 595 (Tex. Crim. App. 1940).




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        article III, section   56,    of    the Texas   Con-
        stitution.




                                        JIM     MATTOX
                                        Attorney General of Texas

MARY KELLER
First Assistant Attorney General

LOU MCCREARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKIEY
Special Assistant Attorney General

RENEA HICKS
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Preparedby  Tom G. Davis
Assistant Attorney General




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