MEIY26, 1969


Honorable Joe Shannon, Jr.          Opinion No. M-404
Chairman, Committee on Countiea
House of Representatives            Re:   Con8tltutlonallty of
Austin, Texas                             H.B. 1305 providing for
                                          constructton and main-
                                          tenance af private roads
                                          by counties of more than
                                          10,000 but less than
Dear Mr. Shannon:                         10,050 populatlon.
          In your recent request for an opinion of this office,
you provided us with a copy of,House Bill 1305, now pending
in the Committee on Countiee. You requested advice a8 to the
constitutionality of the aaid bill, with particular regard to
whether it may be considered a local or special law, and.88
to whether the bill contain8 an unconstitutional permission
for private u8e of county property.
          H.B. 1305, In Section 1, provides as follows:
          “Section 1. The county commleeloners court
     of a county which has more than 10,000 person8
     but fewer than 10,050 person8 according to the
     last preceding federal census, by order, may
     authorize a commissioner of the county to direct
     the use of county employee8 and equipment to
     construct and maintain any private road in his
     precinct, w’henrequested to do 80 In writing
     by a person owning an intereat In the private
     road or In the land on which the private road
     is to be constructed.
          Article III, Section 56, Constitution of Texas, pro-
vides, In part, as follows:
          “The Legislature shall not, except as
     otherwlee provided In thle Constitution, pa88


                        - 2001-
.   .




        Mr. Joe Shannon, page 2 (M-404)


            any local or special law, authorizing:   . . .
            regulating the affairs of counties, cities,
            tOWn8, wards or School diStrict8; . . .
            creating offices or prescribing the powers
            and duties of officers, In counties, . . .'I
                 Your particular attention Is directed to Miller v.
                       136 Tex. 370, 374, 150 S.W.2d lOOO,-
                           Court held as follows:
                 "Notwithstanding the above constitutional
            provision firtlcle III, Section 567, the courts
            recognize rn the legislature the Father broad
            power to make classiflcatlons for leglelatlve
            purposes and to enact laws for the regulation,
            thereof, even though.Such legl8latlon may be
            applicable only to a particular class or, In
            fact, affect only the inhabitant8 of a particular
            locality; but 8uch~legi8lation must be Intended
            to apply unlformly to all who may come within
            the classlflcatlon designated In the Aot, and
            the clasalflcatlon must be broad enough to ln-
            elude a substantial class and must be based
            on characterlatlcs legitimately di8tinguiShing
            such class from Other8 with respect to the
            public purpose Sought to be accomplished by
            the proposed legislation. In other wOrd8,
            there,must bega substantial reason for the
            classlflcation. 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." (Emphasis added.)
                  We think this further language In the Mlller'caee la
        applicable here:
                 "The peculiar llmltatlons employed bj the
            Legislature In this lnatance to segregate the
            class to be affected by the legislation not
            only bears 'no SUbStantial relation to the ob-
            ject sought to be accomplished by the Act, but
            the purported class attempted to be .so segregated
            IS, in fact, not a class di8tinCt in any 8ub-
            stantlal manner from Other8 In this State."


                               - 2002."
.




    Mr. Joe Shannon, page 3      (M-404)



    HOUSe Bill 1305 makes no findings or statements In support of
    the grant of authority In question to the particular bracket
    Class of counties. For further authorities on this point see
    Attorney Qeneral'e Opinions c-481 (1965); C-442 (1965); c-244
    (1964); C-138 (1963); v-386 (1947).
              A close examination of House Bill 1305 does not
    reveal any broad-based public purpose for the claeslflcatlon
    made therein; the on1 baSi8 Is counties containing at least
    a popuIatlon of 10,
                      7x& and not more than 10,049. You are
    accordingly advised that HOUSe Bill 1305 Is unconetltutlonal,
    being In violation of Article III,,Sectlon 56, Texas Con-
    8tltutlon.
              In view of our answer to your first question, we do
    not reach any further po88ible grounds of uncon8tltutlonalltg
    In the bill.
                              SUMMARY

                 House Bill 1305 Is unconetltutlonal, being
            in violation of Article III, Section 56, Texas
            Constitution, as a local and 8peclal~blll.




    Prepared by Malcolm L. Quick
    Assistant Attorney oeneral
    APPROVED:
    OPINION COMMITTEE
    Kerns Taylor, Chairman
    George Kelton, Vice-Chairman
    Bill Allen
    Harold Kennedy
    Jack Sparks
    Roland Allen
    Hawthorne Phillips
    EXfzCUtiVe   ASSiStallt

    W. V. Geppert
    Staff Legal ASSiStant
                                -2003-