Texas Constitution talk:Article III, Section 56: Difference between revisions

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{{DISPLAYTITLE:{{PAGENAME}} of the Texas Constitution–discussion page}}__NOTOC__This page is available for comment and discussion regarding the page ''{{PAGENAME}} of the Texas Constitution''.
{{DISPLAYTITLE:{{PAGENAME}} of the Texas Constitution–discussion page}}__NOTOC__This page is available for comment and discussion regarding the page ''{{PAGENAME}} of the Texas Constitution''.
==review==
x Juliff Gardens v. TCEQ, 131 S.W.3d 271 (TCA 2004)
_ Diaz v. State, 68 S.W.3d 680 (TCA 2000)
_ Sw. Travis Co. WD v. Austin, 64 S.W.3d 25 (TCA 2000)
x FM Properties v. Austin, 22 S.W.3d 868 (2000) (!dissent!)
_ Austin v. Cedar Park, 953 S.W.2d 424 (TCA 1997)
x Scurlock P. v. Brazos Co., 869 S.W.2d 478 (TCA 1993 denied)
_ Morris v. San Antonio, 572 S.W.2d 831 (TCA 1978)
x Suburban Ut. Co. v. State, 553 S.W.2d 396 (TCA 1977 nre)
_ Culberson County v. Holmes, 513 S.W.2d 126 (TCA 1974)
x Inman v. Rr Comm., 478 S.W.2d 124 (TCA 1972 nre)
_ Creps v. Firemen's Fund, 456 S.W.2d 434 (TCA nre)
x Gould v. El Paso, 440 S.W.2d 696 (TCA 1969 nre)
x Langdeau v. Bouknight, 162 Tex. 42, 344 S.W.2d 435 (1961)
x Wood v. Wood, 159 Tex. 350, 320 S.W.2d 807 (1959)
x Rios v. State, 162 Tex.Crim. 609, 288 S.W.2d 77 (1955)
x Atwood v. Willacy Co. ND, 284 S.W.2d 275 (TCA 1955 nre)
x San Antonio v. State, 270 S.W.2d 460 (TCA 1954 refd)
x Lamon v. Ferguson, 213 S.W.2d 86 (TCA 1948)
x TG County v. Proffitt, 195 S.W.2d 845 (TCA 1946 woj)
x Jones v. Anderson, 189 S.W.2d 65 (TCA 1946 refd)
x Oakley v. Kent, 181 S.W.2d 919 (TCA 1944)
x Jameson v. Smith, 161 S.W.2d 520 (TCA 1942)
x King v. Sheppard, 157 S.W.2d 682 (TCA 1941 wm)
x Wood v. Marfa I.S.D, 123 S.W.2d 429 (TCA 1939 revog)
x Watson v. Sabine Royalty Co., 120 S.W.2d 938 (TCA 1938 refd)
x Brownfield v. Tongate, 109 S.W.2d 352 (TCA 1937)
x Ex Parte Heiling, 128 Tx.Cr.R. 399, 82 S.W.2d 644 (1935)
x State v. Hall, 76 S.W.2d 880 (TCA 1934 dismd)
x City of Houston v. Allred, 71 S.W.2d 251 (1934)
x Austin Nat'l Bank v. Sheppard, 71 S.W.2d 242 (Tex. 1934)
x Womack v. Carson, 123 Tex. 260, 65 S.W.2d 485 (1933)
x Fritter v. Wesh, 65 S.W.2d 414 (TCA 1933 refd)
x Jones v. Alexander, 59 S.W.2d 1080 (Tex. 1933)
x Fort Worth v. Bobbitt, 41 S.W.2d 228 (Tx.Comm.App. 1931)
x County of Henderson v. Allred, 40 S.W.2d 17 (1931)
x Randolph v State, 36 S.W.2d 484 (Tx.Cr.A. 1931)
x Stephensen v. Wood, 119 Tex. 564, 34 S.W.2d 246 (1931) (interested)
x NT Traction v. Bryan, 116 Tex. 479, 294 S.W. 527 (1927)
x King v. State, 105 Tex.Cr.R. 416, 289 S.W. 69, 71 (1926) (city)
x Austin Bros. v. Patton, 288 S.W. 182 (Tx.Comm.App. 1926)
x Harris County v. Crooker, 112 Tex. 450, 248 S.W. 652 (1923)
x Limestone Co. v. Garrett, 236 S.W. 970 (Tx.Comm.App. 1922)
x Vincent v. State ex rel. Wayland, 235 S.W. 1084 (Tx.Comm.App 1921)
x Ward v. Harris County, 209 S.W. 792 (TCA 1919 refd)
x Altgelt v. Gutzeit, 109 Tex. 123, 201 S.W. 400 (1918)
x Logan v. State, 54 TCA 74, 111 SW 1028 (1908)
x Ex parte Dupree, 101 Tex. 150 (1907)
x Green v. State, 49 Tx.C.R. 380, 92 S. W. 847 (1906)
x State v. Brownson, 94 Tex. 436, 61 S.W. 114 (1901) (schools)
x Reed v. Rogan, 94 Tex. 177, 59 S.W. 255 (1900)
x Clarke v. Reeves County, 25 Tex.Civ.App. 463 (1901 refd)
_ Central Wharf v. Corpus Christi, 57 S.W. 982 (TCA refd)
x Smith v. Grayson County, 44 S.W. 921 (TCA 1897 refd)
x McGhee Irr. Ditch Co. v. Hudson, 85 Tex. 587 (1893)
x San Antonio & A.P.R. v. Wilson, 19 S.W. 910 (TCA 1892)
x Stanfield v. State, 83 Tex. 317, 18 S.W. 577 (1892) (!!brief!!)
x Dillingham v. Putnam, 109 Tex. 1 (1890) (limitations)
x Holley v. State, 14 Tex.Ct.App. 505 (1883)
x Dobbin v. San Antonio, 2 Posey 708 (Tx.Comm.Ap. 1881)
x Cordova v. State, 6 Tex.Ct.App. 207 (1879)
x Lastro v. State, 3 Tex.Ct.App. 363 (1878)
x Tx AG Opinion H-196 (1974) (one county)
x Tx AG Opinion C-544 (1965)
x Tx AG Opinion V‑0386 (1947)
x Tx AG Opinion O-5326 (1943)
x Tx AG Opinion O‑5115 (1943)
x Tx AG Opinion O‑2329 (1940) (purpose)
x Colley v. Jasper County, 337 Mo. 503 (1935)
x Owen v. Baer 154 Mo. 434, 481 (1899) (purpose)
x State v. Herrmann, 75 Mo. 340 (1882) (!!one city!!)
x Commonwealth v. Moir, 199 Pa. 534 (1901) (politics)
x Perkins v. Philadelphia, 156 Pa. 554 (1893) (one city)
x Ayars' App., 122 Pa. 266, 277/281 (1889) (purpose/rule)
x Morrison v. Bachert, 112 Pa. 322 (1886) (purpose/affairs)
x Wheeler v. Philadelphia, 77 Pa. 338 (1875)
x Cincinnati v. Steinkamp, 54 Ohio St. 284 (1896) (Bobbitt)
x Maize v. State, 4 Ind. 342 (1853) (purpose)
==23-0656==
"The Act contains two provisions relevant here. First, it provides that '[t]he Commissioners Court of a county with a population of 3.5 million or less, by written order may create the position of a county elections administrator for the county.' 2023 Tex. Sess. Law Serv. Ch. 952 (S.B. 1750) § 2(a) (emphasis added to reflect the amendment). Second, it provides that 'on September 1, 2023, all powers and duties of the county elections administrator of a county with a population of more than 3.5 million under this subchapter are transferred to the county tax-assessor collector and county clerk.” ''Id''. § 3."
Not closed, it does not limit the transfer solely to Harris County even if other counties reach the same size threshold.
Old: Under have choice. Execute with vote and order. New: Under have choice but over do not. Transition by operation of law rather than order. Normally prospective so leg made clear retroactive by transition provision re those over 3.5. If administrator exists over 3.5 in violation subject to suit to force compliance with law. Problem is ambiguity re pro/retro re non Harris by second permanent provision. not clear so consult legislative history re application to others than Harris. Before every county had auth to switch which necessarily included auth to have. Now over 3.5 cannot switch. Ambiguous whether they retain authority to have.
EC 1.003(a): The Code Construction Act (Chapter 311, Government Code) applies to the construction of each provision in this code, except as otherwise ''expressly'' provided by this code.
GC 311.005: The following definitions apply unless the statute or context in which the word or phrase is used requires a different definition: ... (3) "Population" means the population shown by the
''most recent federal decennial census''.
GC 311.022: A statute is presumed to be prospective in its operation unless ''expressly'' made retrospective.
GC 311.023: In construing a statute, whether or not the statute is considered ambiguous on its face, a court may consider among other matters the: (1) object sought to be attained; (2) circumstances under which the statute was enacted; (3) ''legislative history''; (4) common law or former statutory provisions, including laws on the same or similar subjects; (5) consequences of a particular construction; 6) administrative construction of the statute; and (7) title (caption), preamble, and emergency provision.
GC 311.031(a): [T]he reenactment, revision, amendment, or repeal of a statute does not affect: (1) the prior operation of the statute or ''any prior action taken under it'' ....
GC 311.032(c): In a statute that does not contain a provision for severability or nonseverability, if any provision of the statute or its application to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of the statute that can be given effect without the invalid provision or application, and to this end the provisions of the statute are severable.
The change in law made by this Act applies only to the creation of the position of county elections administrator on or after the effective date of this Act. The creation of a county elections administrator before the effective date of this Act is governed by the law in effect when the position was created, and the former law is continued in effect for that purpose.
At least two reasonable bases exist for treating Harris County differently from the state's other 253 counties for election administration purposes. (1) Its sheer size warrants special consideration, as does its outsized impact on statewide elections. (2) Its Commissioners Court changed the election administration system for the 2022 election cycle, created new problems that made national news, created local controversy and led to numerous election contests. Solving its specific issues is a reasonable basis. In other words, it is reasonable for the legislature to make a change to the elections administrator in the one county that was experiencing difficulties while leaving the other counties' elections administrators alone.
The Act has at least three reasonable bases. First, Harris County's sheer size creates a statewide interest in the proper administration of its elections, which is unlikely to dissipate even if, due to statewide population growth, other large counties eventually reach populations of over 3.5 million. Second, legislators may have believed reports that Harris County's elections administrators poorly managed the County’s 2022 elections. Third, regardless of the veracity of those reports, the Legislature may have been concerned that widespread reporting about poorly managed elections in Harris County caused voters to lose confidence in the integrity of those elections.
Harris County’s size makes it different from all other counties. Okay but how with regard to whether its elections should be administered by elections administrator or county clerk?
Because elections in Harris County have a statewide impact, particularly when statewide officials and measures are on the ballot, the Act is not local within the meaning of the Constitution. License to change all election related laws.
Given the disparate outcome between different-sized counties and Harris County's own disparate outcome between methods of administration, it was reasonable for the Legislature to change who administered the County's elections. If Bell County faltered, bracket out their elections administrator?
If outside impact then classify as largest
If personnel problems, then classify by personnel problem
Is EC 31.050 void on the ground that it is not prospective in its application and does not apply to other counties of the same class thereafter coming within the terms of its population classification.
In other words, is EC 31.050 void on the ground it is a designation rather than a classification.
EC 31.017(a): In a county with a population of more than 4 million (Harris County?), the secretary of state's office may order administrative oversight of a county office administering elections ....
EC 31.031(a): The commissioners court of a county with a population of 3.5 million or less by written order may create the position of county elections administrator for the county.
EC 31.048(a): The commissioners court by written order may abolish the position of county elections administrator at any time.
EC 31.050: On September 1, 2023, all powers and duties of the county elections administrator of a county with a population of more than 3.5 million under this subchapter are transferred to the county tax assessor-collector and county clerk. ...
Having once become operative, the office continues to exist in a county, regardless of the population as shown by any future census, unless the office is abolished as provided in Subdivision 9 of this section.
?? All powers and duties of a [x:the] county elections administrator of a county with a population of more than 3.5 million are transferred to the county tax assessor-collector and county clerk. This happens on official release of federal census showing county has population of more than 3.5 million. ??
Here, where the subjective motivation is not an element of the Plaintiffs' claims—and only the reasonableness of the Legislature's classification matters—legislative history plays no role in the analysis.
Because the Legislature’s classification was reasonable, Plaintiffs are unlikely to succeed on the merits.
Construe entire EC: change to administrator is not one way. in other words, cc can move duties back to county clerk and tax assessor-collector. EC 31.060 only prospective? Then determine effect of disputed 2023 amendment.
The Legislature knew that it would apply to Harris County on September 1, 2023, and then never again, even if some other county with an elections administrator passes the 3.5 million threshold.
Law being made theoretically, not for a day, but for all time, a statute applicable to cities of certain population is a general law when it establishes a rule for the prospective government or regulation of all such cities as may, in the course of time, reach the prescribed population; but where the statute obviously acts only on a present state of facts in such cities and cannot by possibility apply to other cities that may attain, in future, such population, it is local, special and void.
A general law is one which applies to and operates uniformly upon all the members of any class of persons, places or things, requiring legislation peculiar to itself in the matter covered by the law.
2020: 1 Harris 4,731,145; 2 Dallas 2,613,539; 3 Tarrant 2,110,640; 4 Bexar 2,009,324; 5 Travis 1,290,188; 6 Collin 1,064,465; 7 Denton 906,422; 8 Hidalgo 870,781; 9 El Paso 865,657; 10 Fort Bend 822,779
This act permanently limits the rights of voters in Harris County.
Matters whose nature is the same everywhere cannot be classified with reference to place. All counties where the same circumstances exist must have the same form of government. What is unique about county x that necessitates it being a class of one?
Almost every local law affects people residing outside the locality, the distinction between general and local laws would seem, under the doctrine of these cases, to be very indefinite.
It is the practice in the Legislature to yield and grant any local measure asked by any representative in that body, it is only necessary to demand a particular enactment for a special purpose, and it is passed as a matter of course. The legislative discretion in such cases extend only to the representations of the member who is interested in the passage of the bill.
So that a law for one class can reasonably be expected to work equally well for every member of the class; while, if it works ill, it is almost certain to do so in every case, and that for some cause which lies deeper than the mere fact that the law is general. The number of places necessarily affected by a law prevents, moreover, the enactment of laws designed in the interest of one place only. If such a law be against the interest of the other communities affected by it, they will oppose its passage, and thus the unfair grant of special privileges will be prevented.
The classification adopted must rest on real or substantial distinctions which renders one class, in truth, distinct or different from another class. There must exist reasonable justification for the class, that is, the basis of the classification invoked must be a direct relation to the purpose of the law.
Regarding population brackets: real or substantial distinctions which render one class distinct or different from another class and the basis of the classification must have a direct relation to the purpose of the law.
It is important to remember that originally the prohibition against special legislation was an attempt to correct two main legislative abuses: (1) special bills were jeopardizing local autonomy; and (2) they were consuming too much of the legislator's time, at the expense of general or state-wide legislation. Today-three-quarters of a century later-those same abuses are still prevalent. 28 TLR 829, 842
The very essence of the theory of classification of cities is that the law deals with corporate powers delegated to them, not as occupants of particular territory, but as municipal corporations which, by reason of their size, have peculiar needs, and that all cities wherever situated are entitled to the benefits of the law.
Two new sections are only EC that apply only to Harris County. Cf. H.B. 4559 relating to statutes that classify according to population; note other "population" classifications in EC (? has 449 S.W.2d 33, 38 been amended ?)
To entrust a legislature with power over matters which concern exclusively districts which the majority of the members do not even profess in any way to represent, and to the people of which they cannot be held responsible, is, therefore, strictly speaking, not representative government at all. That the officers of a city should be appointed by the State executive would not be more at variance with the representative principle.
wrong: every law is general which operates equally upon all persons and all things upon whom it acts at all; such uniformity may often characterize a local or special law, and this must indeed be the case with every law affecting only a single person or thing
what makes Harris County unique with regard to the purposes of the disputed section? legislation limited in its relation to particular subdivisions of the State, to be valid, must rest on some characteristic or peculiarity plainly distinguishing the places included from those excluded

Latest revision as of 18:53, September 30, 2023

This page is available for comment and discussion regarding the page Article III, Section 56 of the Texas Constitution.