Article III, Section 56 of the Texas Constitution–discussion page

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

23-0656

"judges are no fools; they know that just before or after the next census all such laws can be amended to new open-ended classifications that would preserve the limitations to particular counties or cities"

problem is not "genuine state concern"

classification is not "related reasonably to the differences in treatment that necessitate the classification"

no reasonable relationship between size of large counties and stated problems

The Legislature in this instance may well have concluded that bail bondsmen in the more populous counties should be regulated and required to secure their obligations because of the high incidence of crime and the difficulties involved in enforcing bond forfeitures and determining the net worth of persons engaged in the business of writing bonds, but that the same safeguards and procedures were not necessary and would be unduly burdensome in more sparsely populated areas.

Under the challenged law, Texas counties are classified by population. 253 fine. 1 has problem with incompetence and/or indifference of local officers regarding election administration. That problem has no correlation with population. Any size county, the largest and the smallest, can have such incompetent and/or indifferent local officers.

If the classification is not based on a reasonable and substantial difference in kind, situation or circumstance bearing a proper relation to the purpose of the statute, it is a special law

There must be a reasonable relationship between the classification and the objects sought to be accomplished by the statute

Premise, in largest county but not other 353 one elected person will manage election better than one person appointed by cc plus chair

Bad countyauditr, fire lower salary move to treasure of Tarrant coutr.

statewide interest in bail bonds: crime in houston; applicable to all: anyone visiting Houston

Replacing bad officer ee local matter. .

Miller: "Notwithstanding the above constitutional provision, the courts recognize in 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 substantial class and must be based on characteristics legitimately distinguishing 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 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."

"The fundamental rule is that all classification must be based upon substantial distinctions which make one class really different from another." 2. " Another rule is that the characteristics which form the basis of the classification must be germane to the purpose of the law; in other words, legislation for a class, to be general, must be confined to matters peculiar to the class. There must be an evident connection between the distinctive features to be regulated and the regulation adopted.

reasonable basis for classification; i.e. "unconstitutional by reason of the fact that such classification bears no reasonable relationship to the objects sought to be accomplished"

There must be some reasonable relation between the situation of municipalities classified and the purposes and object to be attained. There must be something * * which in some reasonable degree accounts for the division into classes.

Miller: "Resort to population brackets for the purpose of classifying subjects for legislation is permissible where the spread of population is broad enough to include or segregate a substantial class, and where the population bears some real relation to the subject of legislation and affords a fair basis for the classification."

If there is a legitimate relationship between the size of a city and the privilege of detaching a portion of its territory and that Art. 1266, based upon such relationship, is a valid statufe. Whether it is wise or unwise is exclusively a legislative matter. There appears to be no logical or apparent reason for the exclusion from the Act of counties having cities of 100,000 to 349,999 inhabitants. There must be a substantial reason for the classification such as attempted here, otherwise the Act must fail.

Lewis' Sutherland Stat. Construction (2d Ed.), p. 397 et seq. and notes: "A classification based upon existing or past conditions or facts, and which would exclude the persons, places, things or objects thereafter coming into the same situation or condition, is special and void."

"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

there is no substantial difference in the situation or circumstance of border counties relating to suits for delinquent taxes upon which to base the classification. No valid reason can be perceived for limiting the operation of' the Act to border counties

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 [in legislation, 3.3 million]; 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 Art. 6243g been amended ?)

EC 85.066: (a) Except as provided by Subsection (b), any voter who is entitled to vote an early voting ballot by personal appearance may do so at any branch polling place in the territory served by the early voting clerk. (b) For a countywide election in a county with a population of more than 3.3 million and a primary election in a county with a population of more than 1 million in which temporary branch polling places are established under Section 85.062(d)(1), the commissioners court may limit voting at a temporary branch polling place to the voters of particular state representative districts. To the extent practicable, the state representative districts shall be grouped so that the temporary branch polling places in each group serve substantially equal numbers of voters. A maximum of four groups of state representative districts may be established under this subsection.

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

LCRA is a Texas governmental agency that has many duties coextensive with the limits of the state. Harris County is not. The governance of LCRA is a state public policy matter. The governance of Harris County is not.

Stephenson: "Under the above authorities we hold that the act in question is a general, and not a local or special law within the meaning of Sections 56 and 57 of Art. 3 of our State Constitution. The statute operates upon a subject matter in which the people at large are interested; it applies with equal force to all persons everywhere; and the fact that it only operates in certain localities grows out of the subject matter. To say that the Legislature cannot enact laws to protect the fish along a certain part of the coast line of the State because such a law would be local or special, would be to say that all such regulations must apply to every part of the State. A regulation protecting fish in the coastal waters which is made to apply to the entire State would be an idle and useless thing, as most of our counties have no coast line at all. Also the protection of fish and their spawning grounds along any part, or all of the coast line of the State is a matter of general public interest. For the reasons stated we hold this to be a general law."

Anderson: "The rule applicable in such cases is thus stated in Lewis' Sutherland, Statutory Construction (2d Ed.), vol. 1, sec. 306, as follows: 'If, by striking out a void exception, proviso or other restrictive clause, the remainder, by reason of its generality, will have a broader scope as to subject or territory, its operation is not in accord with the legislative intent, and the whole would be affected and made void by the validity of such part.'"

Smith: "However, if we were to hold that without the population restriction, the statute is now applicable to all counties in Texas alike, we would be, in effect, invading the legislative field. This we do not propose to do."

houston

1930 Census: 1 Houston 292,352 2 Dallas 260,475 ... ; Acts 1933, 43rd R.S., ch. 94: "Article 6229. In all incorporated cities and towns having a population of two hundred eighty thousand or more according to the preceding Federal census ... constitute a Board of Trustees of the Municipal Employees' Pension Fund ...."

1940 Census: 1 Houston 384,514 2 Dallas 294,734 ... ; Acts 1943, 48th R.S., ch. 358: "Section 1. There is hereby created a Municipal Pension System in all cities in this State having a population of three hundred and eighty four thousand (384,000) or more according to any preceding or future Federal Census."

1950 Census: 1 Houston 596,163 2 Dallas 434,462 ... ; Acts 1957, 55th R.S., ch. 398: "Section 1. There is hereby created a Municipal Pension System in all cities in this State having a population of five hundred thousand (500,000) or more according to the last preceding or any future Federal Census."

1960 Census: 1 Houston 938,219 2 Dallas 679,684 ... ; Acts 1965, 59th R.S., ch. 107 "Section 1. There is hereby created a Municipal Pension System in all cities in this state having a population of nine hundred thousand (900,000) or more according to the last preceding or any future Federal Census."

1970 Census: 1 Houston 1,232,802 2 Dallas 844,401 ... ; Acts 1975, 64th R.S., ch. 41: "Section 1. There is hereby created a Municipal Pension System in all cities in this state having a population of one million two hundred thousand (1,200,000) or more according to the last preceding or any future Federal Census."

review

x Juliff Gardens v. TCEQ, 131 SW3d 271 (TCA 2004)

_ Diaz v. State, 68 SW3d 680 (TCA 2000)

_ Sw. Travis Co. WD v. Austin, 64 SW3d 25 (TCA 2000)

x FM Properties v. Austin, 22 SW3d 868 (Tex. 2000) (!dissent!)

x Austin v. Cedar Park, 953 SW2d 424 (TCA 1997)

x Scurlock P. v. Brazos Co., 869 SW2d 478 (TCA 1993 denied)

x PUC v. Sw Water Services, 636 S.W.2d 262 (TCA 1982 nre)

x Morris v. San Antonio, 572 SW2d 831 (TCA 1978)

x Suburban Ut. Co. v. State, 553 SW2d 396 (TCA 1977 nre)

x Culberson Co v. Holmes, 513 SW2d 126 (TCA 1974) (named county)

x Inman v. Rr Comm., 478 SW2d 124 (TCA 1972 nre)

x Creps v. Firemens Fund, 456 SW2d 434 (TCA 1970 nre)

x Gould v. El Paso, 440 SW2d 696 (TCA 1969 nre)

x Langdeau v. Bouknight, 344 SW2d 435 (Tx 1961) (insurance receiver)

x Wood v. Wood, 320 S.W.2d 807 (Tx 1959) (military divorce)

x Rios v. State, 288 S.W.2d 77 (TxCrimApp 1955) (jury wheel)

x Atwood v. Willacy Co. ND, 284 SW2d 275 (TCA 1955 nre) (TSC cited)

x San Antonio v. State, 270 SW2d 460 (TCA 1954 refd) (not closed)

x Lamon v. Ferguson, 213 SW2d 86 (TCA 1948)

x TG County v. Proffitt, 195 SW2d 845 (TCA 1946 woj)

x Jones v. Anderson, 189 SW2d 65 (TCA 1946 refd) (court related)

x Oakley v. Kent, 181 SW2d 919 (TCA 1944)

x Jameson v. Smith, 161 SW2d 520 (TCA 1942)

x King v. Sheppard, 157 SW2d 682 (TCA 1941 wm) (TSC cited)

x Wood v. Marfa ISD, 123 SW2d 429 (TCA 1939 revog)

x Watson v. Sabine RC, 120 SW2d 938 (TCA 1938 refd) (xMiller)

x Brownfield v. Tongate, 109 S.W.2d 352 (TCA 1937)

x Ex Parte Heiling, 82 S.W.2d 644 (TxCrimApp 1935) (closed)

x State v. Hall, 76 SW2d 880 (TCA 1934 dismd)

x City of Houston v. Allred, 71 SW2d 251 (Tx 1934) (general law)

x Austin N Bank v. Sheppard, 71 SW2d 242 (Tx 1934) (appropriation)

x Womack v. Carson, 65 SW2d 485 (Tx 1933) (closed severability)

x Fritter v. West, 65 SW2d 414 (TCA 1933 refd) (Kinney County)

x Jones v. Alexander, 59 SW2d 1080 (Tx 1933) (not 56)

x Fort Worth v. Bobbitt, 41 SW2d 228 (TxCommApp 1931)

x County of Henderson v. Allred, 40 SW2d 17 (Tx 1931) (road law)

x Randolph v State, 36 SW2d 484 (TxCrimApp 1931) (dicta)

x NT Traction v. Bryan, 294 SW 527 (Tx 1927) (population xjury)

x King v. State, 289 SW 69 (TxCrimApp 1926) (charter special)

x Austin Bros. v. Patton, 288 SW 182 (TxCommApp 1926)

x Harris County v. Crooker, 112 Tx 450 (1923) (court officer)

x Limestone Co. v. Garrett, 236 SW 970 (TxCommApp 1922)

x Vincent v. State, 235 SW 1084 (TxCommApp 1921)

x Ward v. Harris County, 209 SW 792 (TCA 1919 refd)

x Altgelt v. Gutzeit, 109 Tx 123 (1918) (same: Duclos)

x Logan v. State, 111 SW 1028 (TxCrimApp 1908) (Smith 1908)

x Ex parte Dupree, 101 Tx 150 (1907) (local option)

x Green v. State, 92 SW 847 (TxCrimApp 1906)

x State v. Brownson, 61 SW 114 (Tx 1901) (schools)

x Reed v. Rogan, 59 SW 255 (Tx 1900) (state land)

x Clarke v. Reeves County, 25 TCA 463 (1901 refd)

x C Wharf v. Corpus Christi, 57 SW 982 (TCA 1900 refd)

x Smith v. Grayson County, 44 SW 921 (TCA 1897 refd)

x McGhee Irr. Ditch v. Hudson, 85 Tx 587 (1893) (state land)

x San Antonio & APR v. Wilson, 19 SW 910 (TCA 1892)

x Stanfield v. State, 83 Tx 317 (1892) (local matter)

x Gulf C&SF Ry. v. Ellis, 18 S.W. 723 (Tex. 1892) (due process)

x Dillingham v. Putnam, 109 Tex. 1 (1890) (limitations)

x Holley v. State, 14 TexCtApp 505 (1883)

x Dobbin v. San Antonio, 2 Posey 708 (TxCommAp 1881)

x Cox v. State, 8 TexCtApp. 254 (1880)

x Cordova v. State, 6 TexCtApp 207 (1879)

x Lastro v. State, 3 TexCtApp 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) (!rule!)

x Cincinnati v. Steinkamp, 54 Ohio St. 284 (1896) (Bobbitt)

x Maize v. State, 4 Ind. 342 (1853) (purpose)

x Gray v. Taylor, 227 US 51 (1913)

x Handy v. Johnson, 51 F2d 809 (ED Tx 1931)