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            THEATTORNEYGENERAL
                         OF    TEXAS




                              March 13, 1961

    Honorable Joe N. Chapman
    Chairman, Counties Committee
    House of Representatives
    Austin, Texas
                             Opinion No. !.iW-1014
                               Re:   Constitutionality of House
                                     Bill 248 of the 57th Legis-
                                     lature, which would create
                                     a civil service system of
                                     selection, tenure and status
                                     of all employees of counties
                                     having a population of not
                                     less than 314,000 and not
                                     more than 315,000 inhabitants
                                     according to the last preced-
    Dear Mr. Chapman:                ing federal census.
         You have requested an opinion on the constitutionality
    of House Bill 248 of the 57th Legislature.
         Sections 1 and 2 of House Bill 248 provide as follows:
              "Section 1. From and after the effective
         date of this Act, the Commissioners1 Court of
         all counties in this State having a population
         of not less than Three Hundred and Fourteen
         Thousand (314,000) and not more than Three Hun-
         dred and Fifteen Thousand (315,000) according
         to the last preceding federal census is author-
         ized to establish a civil service system of
         selection, tenure and status, applicable to all
         employees of such counties with the exception of
         elected officials, members of boards and com-
         missions and of the judiciary.
              "Section 2. Such system may also include
         uniform provisions in respect to classification
         of position and salary ranges, payroll certifi-
         cation, attendance, vacation, sick leave,
Honorable Joe N. Chapman, page 2 (WW-1014)


    competitive examinations, hours of work,
    tours of duty or assignments according to
    earned seniority, employee grievance pro-
    cedures, disciplinary actions, layoffs and
    separations for cause subject to approval
    of a civil service commission and all other
    appropriate provisions relating to rates of
    pay, wages, hours of work, and other work-
    ing conditions."
     Section 3 is the severability clause and Section 4 de-
clares an emergency.
     There is only one county within the State which comes
within the enumerated bracket of the Bill. According to
the 1960 federal census report, El Paso County has a popu-
lation of 314,070 inhabitants.
     Section 56 of Article III of the Constitution of Texas
provides in part as follows:
          "The Legislature shall not, except as
     otherwise provided in this Constitution,
     pass any local or special law, authorizing:
          II
           . . .
          "Regulating the affairs of counties,
     cities, towns, wards or school districts; . , ."
     There are four counties with a greater population than
the range from 314,000 to 315,000 inhabitants and there are
249 counties with a lesser population than the range from
314,000 to 315,000 inhabitants.
     It is apparent that House Bill 248 is regulating the
affairs of counties within the meaning of Section 56 of
Article III of the Constitution of Texas. Bexar County v.
Tvnan. 128 Tex. 221. 97 S.W.2d 467(1916)   and
El&o    County; 136-T&. 370,150'S:W:2d'lOOO ~?$@?In
Bexar Cou.nty v. Tynan, supra, the Supreme Court stated:
                 the Legislature may classify
     counties'upon a basis of population for the
-   .




        Honorable Joe N. Chapman, page 3 (WW-1014)


            purpose of fixing compensation of county and
            precinct officers, yet in doing so the classi-
            fication must be basedupon,
            and must not be arbitrary or a device to give
            what is in substance a local or special law the
            form of a general law. . , .
                 "'The rule is that a classification cannot
            be adopted arbitrarily upon a ground which has
            nofoundation in difference of situation or clr-
            cumstances of the municipalities placed in the
            different classes. There must be some reason-
            able relation between the situation of munici-
            palities classified and the purposes and objects
            to be attained. There must be something . . .
            which in some reasonable degree accounts for the
            division into classes.'
                 I,
                  . . .
                 "In the case of Clark v. Finley, 93 Tex.
            171, 54 S.W. 343, this Court recognized that sub-
            stantial differences In populations of counties
            could be made a basis of legislation fixing com-
            pensation of officers, on the theory, as the
            court clearly recognized, that the work devolving
            upon an officer was in some degree proportionate
            to the population of the county. This has fre-
            quently been recognized by courts as creating a
            sufficient distinction to justify a larger compen-
            sation for county officers in counties having a
            large population as compared with compensation to
            like officers in counties having a small vooulatlon.




             In view of the foregoing authorities, it is our opinion
        that House Bill 248 of the 57th Legislature Is in violation
                                                                c   -




Honorable Joe N. Chapman, page 4 (WW-1014)


of Section 56 of Article III of the Constitution prohibiting
the enactment of local or special laws regulating the affairs
of counties.
                       SUMMARY
      House Bill 248 of the 57th Legislature author-
      izing the establishment of a civil service sys-
      tem of selection, tenure and status for all
      employees of counties having a population of
      not less than 314,000 and not more than 315,000
      Inhabitants according to the last preceding
      federal census is unconstitutional and void,
      being in violation of Section 56 of Article III
      of the Constitution of Texas, prohibiting the
      enactment of local or special laws regulating
      the affairs of counties.
                              Yours very truly,
                              WILL WILSON
                              Attorney General of Texas




JR:ms:mm                            Assistant
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
William H. Pool, Jr.
Elmer McVey
Joe B. McMaster
Linward Shivers
REVIEWED FOR THE ATTORNEY GENERAL
BY:   Morgan Nesbitt
