Untitled Texas Attorney General Opinion ( 1964 )

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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