Hon. Tor,A. Graven                   opiaion        %o. v-893
County AudItor
XcLanuan county                      Re: The oonatitutimalit~      of
Waco,    Texas                           Sec. 1, H.Bi 339, 5ut
                                         Legislature,.Felative     to
                                         the salarim     OS County
Dear set                                       officlal8.
              ROitWOl¶O~ iS Whde       t0 $W?W       I'OQWtt r@t'JUWbt ia
whioh you inquire a8 to the oonatitutionallty of Seotfon
1 OS Home Bill Ro. 339, Aots of the 51et Legislature,
B.S., 1949. That eeotion reaadst
              “In   all   oormtier   irr tM#        Bkte    having
        a population of more than nlnoty thousand
        (gO,OoO) perrons aacordirrq to the last pre-
        oe&k~ Federal fI.erUua, ana not more than
        on. hundred, forty-five     thwsaml (145,000)
        population  aoeording to ,eoah FwUmal    Census
        aad 02th a tubla      valuation fol, oounty pur-




          thb county attorney perfornlng     the dtttles
         .oi a dlstrlot    attoraey and the oonnty attor-
          ney shall receive an annual *alar7 of Six
          Thousand, Floe Rm&ed Dollars ($6,500) pay-
          able in equal monthly inetallmonts.      The
          salary of swb oiricmrr from the effective
          date of WI Aot, for the remainder       of the
            ear 1949, &all be ~$6 on th6 mm8 ratio
          i aair at8 the remlndor   OT the yea bears to
        'the total mnual salary provided hewin."
           (lbphaaill 10 added throughout. )
            we asmme rr08t you~lrtter    that hour question
is, whether the above rwtlon   18 repugnant to Artlole
ra,   seation fj6 of the zexar Constitution,   which pro-
~v5dat in psrtt
Hon. Tom A. Craven, page 2 (v-893)


           “The Legislature shall not, ,exoept ‘as
     otherwise provided In this Constitution,       pass
     any looal or special law, authorizing:      , . ,
     Regulating the affairs  of counties,   cities,
     towns, wards or school districts:    . . .‘I
            It wau held in the case of Bexar County v.
T an 128 Tex. 223,      97 S.X.2& 467 (1936)   that an act
T&c g salaries     of county officers was an’act %eRulat-
lng tiie affairs   of counties” within the purview of the
ConstltutZon,    and an attempt to do 80 by local or spe-
cial lav uaa void.
          In the case of Clark V. Finlee   92 Tex.         171,
54 S.W. 343 (189g), the Supreme CouPt @aid:

            %.thout entering at large upon the dis-
     cussion of what ie here meant by a ‘local       ‘or
     .special law,’ it is sufficient     to sag that a
     Statute which relates     to persona or things a8
     a class is a general law, while a statute
     which relates  to partioular     persons or things
     of a class is special,     and comes within the
     constitutional   prohibition.    . . .
            “There must be a classification.    That
     claselflcatlon   may be ei$hher by populatlan or
     by taxable valuea. . . .
          In City of Fort Worth v. Bobbitt,      118 Tex. 14,
36 S,W.2d 470 (1931)   the Court in holding     void an Act
of the Legislature wiote:
            ‘It will be noted that section 1 of the
     act confines its application        absolutely   to
     olties    which, acootihlnn to the United States
     ceneua of 1920, contain not less than 106 m0’
     and not more +%a.n110,000 Inhabitants.          AA
     examination of the oensu~ referred         to dls-
     clo~ses that the olty of Fort Worth, Tex., is
     absolutely    the only-oltg    in the state of-
     Texas that has a population        coming within
     the prOViSiOn     of this act.      Furthermore, the
     act Is eo.construated       that it is absolutely
     impossible    for any other city in the state to
     ever be Included within the terma or under the
     provision8    of the act.     It i8 therefore    our
     opinion that this act is confined In its ap-
     plicatlon    to the olty of Fort Worth only, just
Eon.   Tom   A.   Craven,   page   3 (V-893)



       a8 alearly, and just a6 effectively   aa if the
       stipulation with reference  to population had
       been omitted and the name ‘Fort Worth’ written
       therein ln Its stead. . . .




       lstlng population  er upon the population ah%
       by specified  oeaeua it3 of this oha&aoter.l*
               In the cane of l!Uler v. Bl Paso County, 136
Tee.~~~;:l50       S.YiZd 1000 (19411, chief Justice Alexan-

              “The purpose of thlr oonatltutlonal      ln-
       hlbltlon   againat the enaotment of local or
       special lawa Is a wholesome one.       It is ln-
       tended to prevent ths granting of epeclal
       privileges   and to secure unlformlty    of law
       throughout the State aa far as possible.         It
       lz said that at an early perlod ln many of
       the states the praotlce.of     enacting special
       and local laws beoame ‘an efflclent      means for
       the ea8y enactment of law6 for the advance-
       ment of personal rather than public Interests,
       and encouraged the reprehensible      practice   of
       trading and “logrolllng.“f      It was for the
       supprebrlon of r$uoh practices    that auoh a ppo-
       virlo~ was adopted in thlr, and many of the
       other atates of the Union.      25 R.C.S.,    p. 820,
       I 68.

              “Ilotvlthstandlng   the above constitutional
       provizlon,     the courta recognize    ln the Legla-
       lature a rather broad power to make olaSSlfi-
       cation8 for legislative      purposes   and to enaot
       law8 for the regulation      thereof,   even though
       euoh legll)~tiOQ      may be applloable   only to a
       partloular     olars or, in faot affeot    only the
Bon. Tom A. Craven,     page 4 (V-893)


      substantial     class and must be based on charac-
      teristics    legitimately      distlnguIshlng      such
      class from others with respect to the public
      purpose sought to be aocompllshed by the pro-
      posed legislation.         In other words, there must
      be a subrtantlal       reason for the classification
      . . .
             ”         Resort to population         brackets for
      the purioie’of      clas8IfyIng      subjects   for legis-
      lation IS permissible         where the spread of pop-
      ulation Is broad enough to Include or segre-
      gate a substantial        class,   and where the popu-
      lation bears some real relation            to the subject
      of legislation      and affords      a fair bat3113ror
      the olassIfIcatIon.”
             In that case, a etatute   dealing with county
affairs   was made appliaable    to counties having a popula-
tion of not less than 125,000 and not more than 175,000
and oontainlng a city of not less than 90,000 inhablt-
ante.   The Court said It could apply only to El Paso
County and that such fact must have been known to the
Legislature.     The Court wrote that, “We are therefore
met at the outset with a law which under the facts well
known at the time of its adoption,      was applicable   only
to a single county.      Clearly then it Is a local law and
must fall as such, unless it can be fairly        said that
the class so segregated      . . . has charaoterletlos   dig-
tInguIshIng it from the remainder of the State . . .
            The Court found no such dl8tInguiOhIng           oharao-
terietios   and held that the Aat vas void.
           The Millet-El   Paso case has been uniformly
followed under applicable     fact situations.    Thus In
Ex Parte Carson, 159 S.U.2d 126 (Tex. Grim. 1942) the
   urt  f C imlnal Appeals held void an Act SIxIng a
febe So: oointy lav libraries     where the act wa8 appllca-
ble only to Harris and mllaa Couutles.         In Jameson v
Smith 161 S.Y.2d 520 (Tex. Clv. App. 1942, m
Gf),      the Court held void an Act Increasing      the aala-
rler of County Co~ssioners        in Coleman County only.
And in Oakley v. Kent,, 181 S.U.Pd 919 (‘Per. Civ. App.
19441, hi 0      t following     an Attorney Oeneral’a Opln-
iou, held’voy?&     aot lpplloable    to counties of not
leer than 140,000 nor more than 220,000 population where
it va8 shown that It applied only to Jefferron       County.
That Act was to create a oontral purohaalng agenor for
the county.     .
Hon. Tom A. Craven, page 5 (V-895)


             Upon oonsultlng the 1948 tax valuations            of the
various countise lmthie        State, we flhd that Section 1
of H.B. 339 can only be applicable           now or ln the future
to ten oounties      towltz Bexar, BraLoria, Dallas, C+alV68ton,
Orean. Harris. Jefferson.        NcLennan. liueces and Tarrant.
The-&t 18 noif aDQliOabli. by vlrtui of the pouulatlon
bracket.    to IllcLennan and %u6oe6 Countlea only. In other
words. there are 244 other counties which are excluded
from ihe provleion6       of thin Aot, and perpetually         80,
even though they may be eirilarly           situated in the future.
This 18 true beoawe the Aot lidto              its applleatlon     to
oountiee having a valuation of ~85,000,000 according to
a particular,      past valuation;    i.e.,    the"1948 tax valua-
tion.    Bo aountles,     of oour6e, can ohenge their 1948 tax
valuatlone.       In this re ard, 2 Sutherland Statutory Con-
rtruotlon     (3rd ed. 1943 7 '37, @aye:
              n        An Act llmIted to a particular
       census is'a'fora     of ldeutlfloatlon       and lnval-
      id, a6 no subsequent changie in population
      would enable other ootummitle8 to oome wlth-
       ln the quallfIoatlon8       of the Act.”
            By analogy,   we believe the name to be true oon-
oernltt@en Aot limited     to the tax Valuati'Qn for a partl-
aular year.
           We oannot oonoelve of any be618 for permanently
excluding  244 count&e6 from the provisions  of this Act,
any one of whleh could in the future be similarly    sltu-
at&d a6 those now included.   Ye de nat believe that this
16 a rational  or reasonable olarslfloatlon  but 18 arbl-
trary .
           In visa of the fore@olng It 16 our Opinion
that Section 1 of Ii, B. 339 16 unoonetltutlonal   in 80 far
as It pertains to the Sh&iff,    Anderson v. Wood, 137 TSX.
201, 152 S.W.2d 1084 (1941), the County Judge, 'Ward v.
                 209 S.W. 792 (Tex. Clv. App. 19lm
~%?$%!%triot           Clerk Duclos v. ,Barris Cou&,~$~
Tex: i4?. 263 S.W. 562 (14241. the Counts Clerk, th
Asaesao~'andCollec~&,‘t~e     &nty   Attorney and-the Com-
ty Attorney perfoxmlng the dutlee of a Matriot     Attorney.
           Although Section 1 of H.B. 339 16 unoonatltu-
tlonal as being In vlolatlon   of Artiole  III, Section 56
in eo far a8 it pertains to the above mentlon6d oounty
offloere,   the bill Is not governed by said constitution-
al provl6lon6   in 80 far as it pmtaine   to the office   of
Hon. Tom


CriwlialMstrlot       Atterney, since the ofSloe e? DirtrIot
Attorney    er C~lmlaal M~trlct   Attorney is en inoident to
th.4 Suaotloniag    of courts   whztob the Legislature   or4ates




r.isdietien and 0rgamOatlm of thoas oourtrwbicb the
Leglslatum    may ertabllsh    under Art1016 V, Seotlon 1 OS
the Constitution   OS Texas, are not governod by the provl-
rlom of Article    III, Section 56, and hence looal and
rpeclal Acte relating     thereto ar4 valid.
         Harria Cow&Y vt Croaker uph4la a etatute,
apeoialin aharaoter,xhleb St*ed the 8al8ryof the B&r-,
trict Atternej   4S the Crlmlnal Mstrlot     Court of Harrla
couaty.   Jones v. Anderaon upheld a special law creating
the oSSlc4 OS C lml 1 District      Attorney for Bexar Coun-
w.    Tom Green  ~oun~   v. Profltt  upheld a law rpeclal
In character,   which Stied the salaries    of co&t report-
ers In certaincouutiea.      lea1 v. Sheppard upheld a law
creating the offioe   OS Criminal District    Attorney OS a
Mntrlat   Court of general jurisdiction     in Gr4gg County
whloh alao fixed the ralary for the Cririnal       District
Attorney.

            IS that part of the Aat psrtainlng  to the Crln-
lnal Mstriat~Attorney     may be severed from the reMWing
portion,   It ie our opinion that the mime ir valid and
oonstttutioaal*
            It is
               stated in 2 SutherlandStatutoryCon-
struction(3rd ed. 1943) 178-179, Seo. 2404:
            "In determining aeparablllty,     leglslativ4
      intent goveraa, but Intent that the act be en-
      forced in 80 far as valid Is not the sole con-
      sideration.    If the legislature   so intended,
      the valid parts of an act will be uphela 'un-
      less all the provisions     are connected in Sub-
      ject matter, dependent on each other, operat-
      ing together for the eems p~rpo44, or other-
      wise so connected together in ~anlng that it
      cannot be presumedthe leglrlature       would have
      peeredthe one without the other.'        To be oaW+
      bl,rof seD.arate en.Soroement. the valid Dortlon
hon. Tom A. Craven, page 7 (V-893)


     of an enactment     must b4 lndewndent   of the ln-
     valid portion antl must form a comulete act
     within itself.      The law enforced aSt4r separa-
     tion must be r4asonable in light of the act as
     originally    drafted.   Th4 teat is whether or
     not the lealslature     would have Passed the stat-
     ute had it been gresent4d with the invalid Sea-
     tures removed,"
           It la our opinion that the valid portion of
Section 1 of B.B. 339 to wit, the Increasing     of compen-
sation of the Criminal District   Attorney,  forms a com-
plete act within Itself   capable of separate enforcement
and the Legislature  has declared that it would have en-
acted such ortion with the r4mainder of the Act removed
by Section $ of the Aot, which reads as follows:
           "IS any part, S4ctlon,   subseation,   para-
     graph, sentenae, claum,     phrallb, or word oon-
     talned In this Act ahall be held by the courts
     to be unoonstltutional    or Invalid,   such hold-
     ing shall not affect   the validity   of the re-
     maining portions   of this Act, and the Leglsla-
     ture hereby declare8 that It would have enact-
     ed, and does here now enac,t such remaFlng
     portiona despite any suoh invalidity.
          Ther4fore,  that portion of the Act pertaining
to the compensation of Crlml.nal Mstrict  Attorn4g Is
valid and not unconatitutlonal.
           You have not Inquired a8 to the constitution-
ality of Section 2 of R.B. 339; therefore,  this opinion
is not to be construed as pa.ssing on the validity    of
said Section,


           Sectlen 1 of H.B. 339, Aote of the 514t
     Legislature,     1949, Slxlng the salaries    of
     county officiali      in certain counties la a
     local and special      law in violation   of Article
     III, Section 56 of th4 Constitution        of Texas
     In 80 far as It psrtalaa to the Sheriff,         Coun-
     ty Judg4, Diatriot       Clark, County Clerk, Tax
     Asaeesor-Collecter,       County Attorney and the
     County Attorney performlag       the duties of Dis-
     trlot Attorney.       Bemar Counts v* Tsnan, 128
Hon. Tom A. Craven,   page 8 (V-893)




     263 S.W. 562 (1924).
            Section 1 of H.B. 339 58 valid and oon-
     stitutional    in eo far aa It pertains to the
     office   of Cririrral District   Atterney.  Veal
     v She, 8rd 209 S.U.2d 388 (Tex. Clv. A
     Itim#fs         v,. Aalderaon, 189 S.Y.2d 65 i"
                                                   Tex.
     Clv. App. 1945).
                                     Yours very truly,
                                 ATTOHEEiGENERALOF TEXAS




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