Untitled Texas Attorney General Opinion

The Honorable Dan Kubiak Opinion No. H- 393
State House of Representatives
Room 154, State Capitol Re: Validity of
Austin, Texas 78767 Article 2676a.
V. T. C.S.
Dear Representative Kubiak:
On behalf of the House Education Committee you have asked
whether Article 2676a, V. T. C. S., is prohibited by Sec. 56 of
Article 3 of the Texas Constitution as a local or special law.
Article 2676a provides in part:
Section 1. From and after the effective date
of this Act in any county in this State having a
population of not less than one hundred thousand
(100.000) and not more than one hundred hventy
thousand (120,000). according to the last preceding
federal census, the general management and con-
trol of the public free schools and high schools in
each county unless otherwise provided by law shall
be vested in five (5) county school trustees elected
from the county, one of whom shall be elected from
the county at large by the qualified voters of the
county and one from each commissioners precinct
by the qualified voters of each commissioners pre-
cinct, who shal1 hold office for a term of two (2)
years.
Section 7 is applicable only to count.ies within the population
bracket defined above, and provides:
sec. 7. The county school trustees shall
not detach terri.tory from any i,ndependent school
district in such county and annex such territory
to another independent school district without
the prior consent of the school trustees of the
p. 1840
The Honorable Dan Kubiak, page 2 (H- 393)
district from which such territory is being
detached as well as the prior consent of the
school trust.ees of the district to which such
detached terri.tory is to be annexed.
Section 56 of Article 3 provides:
The Legislature shall not, except as otherwise
provided in this Constitution, pass any local or
special law, authorizing:
. . .
Regulating the affairs of counties, cities, towns,
wards or school districts:
. . .
Regulating the management of public schools,
the building or repairing of school houses, and
the raising of money for such purposes.
Section 7 prevents county school trustees in counties with populations
between l@O,OOO and 120,000 from detaching school lands from an indepen-
dent school distri,c? without the prior approval of the trustees of the inde-
pendent school district. The,re is nothing unreasonable in this require-
ment. It is, however, mole restrictive than the general law applicable
to all other counties of the state. See Sec. 19.261(d). Texas Education
Code, V. T. C. S.
Howewr, we find it impossibl~e to esc,ape the conclusion that
Article 2676a is intended to apply specially and exclusively to Brazoria
County. When first enacted by the Legislature in 1963 the population
classification wa,s se, at 75,000 t.o 80.000 persons. Accordi,ng to the
1.960 Federal, Census:’ only Rrazoha Counly qualified by population under
the statut.e. By 1970 Brazoria Cou”ty has a population of 1,08,312 persons.
Consequently, Brazoria County had moved out of the original classification
and other counties had moved irlto it. In 1971 the Legislature amended
Sec. 1 of Article 2676a by changing the population classification to
include only counties with populations between 100.000 and 120,000 persons.
Even though the bracket is expanded, Brazoria County is again the only
county covered by the Article’s special provisions.
pe 1841
.
The Honorable Dan Kubiak, page 3 (H-393)
The ti.tle of the amending act of 1971 leaves no doubt as to the
reason for the change. It provides:
An Act amendi.ng laws pertaining to the affairs
of counties, cities, and school districts in order
to recognize the effect of the recent federal cen-
sus; . . . (Acts 1971, 62nd Leg., ch. 542, p.1817,
amendi,ng Article 2676a,, V. T. C. S., in Sec. 71,
p. 1833).
R
As we have said in previous Attorney General Opinions, Texas
courts permit statutes t:o define the scope of their application by:
population classifications which are open-ended, that is, not con-
fined absolutely to certain counties or cities. However, the
distinction made between counties or cities within the population
bracket and those outside of it must be based on a real and sub:
stant.ial difference that is reasonably related to variations in
population. Attorney General Opinion H-8 (1973). The theory is
that even though the statute is limited in scope it will apply to any
county or city moving into the population classification in the future,
and will cease to apply to counties or cities moving out of the classifi-
cation as changes in; pcpulat~ion are reflected in subsequent federal
census reports. This is the purpose and intent of statutory language
referring to the “last precedi.ng federal census. ” Obviously, very
little is left to the theory i.f. after each federals census, the Legislature
adjusts a so-called open-ended populai:ion classification to cancel out
the effect of the new census on the scope of a particular statute.
In Citv of Fori Worth v. Bobbitt, 36 S. W. 2d 470 (Tex. 1931) a
statute conferred special benefits upor? al.1 cities within a population
classi.fication according to the 1920 federal census. The court held
that the statil!.e was a prohi.bited speci.al, l.aw without discussing the
necessity or reasonableress of the l.aw si.nce it found that Fort Worth
was the only r,iiy to w’hic 11it- cou1.d ever appl.:;. Likewi,se, i.n Fritter
v. West, 65 S. W. 2d 4?4 (Te:<. Cic-. Apna g San Antonio 1933, err. ref’d. )
no consi,derat:ion was g%ve.n to the wasonableness of a statute abolishing
a county-wide common school d!st ci:t si r,,:c’t ht~ st:atute express1.y
applied on1.y to Kir.nq Cou~tv.
The same cor?clilr. ior, must be rra.iwd under Section S6 of Article 3,
when it is apparent, as it. is ht~re, tJ:Jaf.a rwmi n,all,y open-ended bracket
The Honorable Dan Kubiak, page 4 (H-393)
is actually intended to include only Brazoria County. By amending the
population bracket of Article 2676a in 1971 so that it again applies only
to Brazoria County, and excludes every other county, the Legislature
indicates to us that the population classification is an arbitrary device
that is merely used to give what is in substance a local or special law,
the form of a general law. Bexar County v. Tyman, 97 S. W. 2d 467(,Tex. 1936). In our opinion, the courts will hold Article 2676a, V. T. C. S.,
to be unconstitutional.
SUMMARY
Article 2676a. V. T. C. S., is a special or local
law pertaining to the affairs of one county, and is
unconstitutional and void under Section 56 of Article 3
of the Texas Constitution.
Very truly yours,
bs%
L. HILL
Attorney General of Texas
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A
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LAR \F. YOR , & ‘rst A sistant
.&LA@
DAVID M. KENDALL, Chairman
Opinion Committee
p. 1843