Untitled Texas Attorney General Opinion ( 1964 )

Honorable C. J. Eden Opinion NO. c-244 County Attorney Stephens County Courthouse Re: Constitutionality of Breckenridge, Texas Article 667, Section 104, V.P.C. Dear Mr. J&n: In your recent letter to this office you stated the following facts:' "There Is only one incorporated city or town located in Stephens County Texas, and that being Breckenridge. Accorthg to the 1960 fed- eral census, Stephens County contained a total population ~of8,885, and the city of Breckenridge contained a total population of 6,450. Prior to January 1, 1957, the'City of Breckenridge, by ordinance, prohibited the sale of beer on Sunday within the limits of said city." Based upon these f'aots,your letter requeststhe opinion of this office as to whether the third paragraph of Section 103 of Article 667 of Vernon's Texas Penal Code applies to Stephens County and, if so, whether such provision is constltu- tiona1. The third paragraph of such article reads as follows: "When in a county in which only one incorpo- rated cl&y or town is located and said incor- porated city or town has wit&n its limits a majority of the total population of said county according to the last preceding Federal Census and said incorporated city or town has, prior 60 January 1, 1957, by valid charter amendment or ordinance, shortened the ~hours of sale of beer permitted on Sundays by Section 10 of Article II of this Act, then the Commissioners Court of said county is hereby given the power after publication of notice for four (4) consecutive weeks in some newspaper of general circulation published in -1181- __ - Y Hon. C. J. Eden, page 2 (C-244) said county, or if there be no such newspaper published in said county then in some newspaper published in a nearby county and generally circu- lated in said county, to enter an order pro- hibiting the sale of beer on Sundays during the same hours when it is prohibited by said charter amend- ment or ordinance In any part or all of the areas within the prescribed limits of said county lying outside of said incorporated &ity or town.' Eased upon the facts which you have stated, It Is quite apparent that Stephens County is wlthin the class of counties embraced by the foregoing language and you are hereby so advised. The following discussion and authorities will,be directed toward the constitutionality of this language. Since the provision in question is not, by its terms, applicable in all counties generally, we shall first consider whether it is proscribed as a local or special law by Section 56 of Article III of the Texas Constitution. In our op:';;on it is. Our Supreme Court In Miller v. El Paso County Tex. 370, 150 S W.2d 1000 (1941) has succinctly state& the prevailing rule with regard to legislation of the type here under consideration at page 1001-1002 of 150 S.W.2d: "Notwithstanding the above constitutional provision the courts recognize in the Legislature a rather broad power to make classifications for legislative purpos~esand to enact laws for the regulation thereof, even though such legis,- lation 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 substantial class and must be based on characteristics legitimately dlstinguish- ing such class from others~with respect to the public purpose sought to be accomplished by the proposed legislation. In other words, there must be a substantial reason for the classiflcatlon. It must not be a mere arbitrary device resorted to for the purpose offgiving what is in fact, a local law the appearance of a generai law." (See also the oases there cited.) -1182- Hon. C. J, Eden, page 3 (c-244) Looking at the provision in question, we see that it is applicable only in counties: (1) in which there is only one incorporated town or city; and (2) which incorporated town or city has within its limits a majority of the population within the county according to the last preceding Federal census; and (3) which incorporated town or city has prior to January 1, 1957, by valid charter amendment or ordinance, shortened the hours permitted for the sale of beer on Sunday. While it is undoubtedly the purpose of this provision of Article 667-i@ to provide a process whereby the legal hours for the sale of beer on Sunday may be made uniform throughout those counties in which it is applicable, In our opinion the class of counties affected is without substantial basis or distinguishing features and is therefore proscribed as a local or special law by Section 56 of Article III of the Texas Con- stitution. Our reason for so holding becomes obvious when one tries to justify the inclusion within the operation of the statutory provision A County, in which the required ordinance or charter amendment was adopted on December 31 1956 andzthe exclusion from such class of B County, in which such'ordinance or charter amendment was adopted on January 1, 1957 &r for that matter at any time thereaftec%' In other words, the question of whether or not the requisite ordinance or charter amendment was adopted prior to January 1, 1957 or subsequent thereto bears no reasonable relation to the purposes which the legislation is designed to accomplish therefore the segregated category is not substan- tially distinct from ihe other. We can perceive of no logical or rational basis for the classification made by the legisla- ture in this instance. The foregoing discussion and.holding: has been directed solely to the third paragraph of Section 1.04of Article 667 of Vernon's Texas Penal Code. Article 667-103 was enacted as Senate Bill 20 Acts Ssth~Legislature, Regular Session, 1957, Ch. 270 p. 604 and such Act contains a severability clause. By striking onl$ the third paragraph of the Act, the portion remaining is complete in itself and capable of being carried -1183- Hon. c. J. Eden, page 4 (C-244) into effect within-the limits of the expressed legislative intent. Therefore, this opinion does not express itself upon the constitutionality of the remainder of Article 667-l+. The third paragraph of Article 667-103, V.P.C., is a local or special law prohiblted by Section 56 of Article III of the Texas Constitution and Is therefore unconstitutional; this portion of the Article being severable, we express no opinion on the constitutionality of the'remainder of Article 667-103, V.P.C. Very tt?l;Ly.~yours, WAQGONER CARR Attorney General Assistant wos ml APPROVED: OPINION COMMITTEE W. V.,Geppert, Chairman Scott Garrison Lloyd Martin Linward Shivers Pat Bailey APPROVED FOR THE ATTORNEY GENERAL By: Stanton Stone -1184-