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Texas Constitution talk:Article III, Section 56: Difference between revisions
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Texas Constitution talk:Article III, Section 56 (edit)
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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''. | ||
== | ==23-0656== | ||
Section ??? Electin Code removes only one person from his position and will never apply to any other person. | |||
cite: ''Hall v. Bell County'', 138 S.W. 178, 183 (Tex.Civ.App.-Austin 1911), aff'd , 105 Tex. 558, 153 S.W. 121 (1913) ("We have already given reasons for holding that it is a local or special law, and we now add that, as its sole object was to regulate the affairs of Bell County, that fact is conclusive proof that it is a special law. Bell county, as a municipal corporation, is, in the eyes of the law, a person or legal entity, and any statute whose main object is to regulate the rights or interests of a particular and designated person or thing, is, according to all the authorities, a special law.") | |||
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. (b) The order must state the date the creation of the position of administrator is effective. The effective date may not be later than 12 months after the date the order is adopted. (c) To facilitate the orderly transfer of duties on the effective date, the order may authorize the commissioners court to employ the administrator-designate not earlier than the 90th day before the effective date of the creation of the position, at a salary not to exceed that to be paid to the administrator. (d) Not later than the third day after the date the order is adopted, the county clerk shall deliver a certified copy of the order to: (1) the secretary of state; and (2) each member of the county election commission. | |||
EC 31.048. (a) The commissioners court by written order may ''abolish the position'' of county elections administrator at any time. (b) After the effective date of an order abolishing the position of administrator, the county tax assessor-collector is the voter registrar, and the duties and functions of the county clerk that were performed by the administrator revert to the county clerk, unless a transfer of duties and functions occurs under Section 12.031 or 31.071. (c) Not later than the third day after the date an order abolishing the position of administrator is adopted, the county clerk shall deliver a certified copy of the order to the secretary of state. | |||
Only the elections administrator in Harris County is abolished by the enactment. All other counties, whether above or below 3.5 million, with an elections administrator continue to have choice whether or not to abolish the position. | |||
Classification by population is allowed because logical that larger population counties require different public policy rules than smaller populations counties. The Legislature claims it classifying counties according to population but the law does not treat all counties with a population of 3.3 million the same. One rule for Harris County and another rule for the other 253. That is conclusive proof that the LEgislature is not classifying counties according to population but by some other criteria. Question remains whether that criteria is valid under the applicable caselaw. | |||
Two approaches have emerged for determining whether a bracketing scheme meets the reasonable basis requirement. The first examines the relationship between the purpose or subject of the law and the criteria used to establish the bracket. The second examines whether the purpose of the law is of statewide, or only local, importance. Under the first method of analysis, the purposes and subject of the law under review are identified and then the criteria used to create the law's bracket are examined. The criteria must have a real relationship to the purposes sought to be accomplished by the law, something germane | |||
to the purpose of the legislation, and must be related to the subject of the law in such a way to show that the intent of the legislature was to legislate on a subject generally and not to single out one entity or area. The second method of analysis for determining whether a bill's bracketing scheme has a reasonable basis requires an examination of the statewide effects of the proposed law. A bill treating only a particular locality does not violate the local law prohibition if people throughout the state would be affected by the proposed law or if the bill treats substantially a subject that is a matter of interest to people throughout the state. This method of analysis attempts to determine whether the bill deals with a matter of general rather than purely local interest. Normally, a bill's proposed law would not be considered to have a sufficient statewide impact unless the law would affect a substantial class of persons over a broad region of the state. Furthermore, even if the proposed law would affect a matter of statewide importance, a reasonable connection must exist between the bracketing scheme used and the statewide interest. | |||
Question Presented: Is SB --- a general law or local-special law. State argues it is general law. Harris County argues it is local and/or special law. | |||
There was a general law. SB is an exception to that law. | |||
Article I Section 3 (equality mandated for all government action): Is there a reasonable ground for the legislative classification (i.e., some real difference existing in the subject of the enactment) of Harris County with respect to having choice or non-choice of elections administrator. | |||
Article I Section 3-a (equality mandated for sex, etc.): The test is not whether legislative classification is rationally related to a legitimate state interest. | |||
Article III Section 56 (equality mandated for enumerated items): Is there reasonable ground for the legislative classification of 254 Texas counties with respect to total population above and below 3.3 million. | |||
In this case, the classification criteria is not reasonably related to the purpose of the law. | |||
The classification adopted is not germane to the purpose of the law. The difference in the population size of Harris County and the other 253 Texas counties has no connection with the need or propriety of the relevant legislative regulation. | |||
"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 | 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 | ||
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Replacing bad officer ee local matter. . | 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." | 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." | ||
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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." | 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." | ||
When Dallas County attains the population threshold, will it share the characteristics of the classification. | |||
Question is not rational action/purpose/object or even rational classification but rather if different treatment is sufficient to overcome strong preference for equal governmental structure of local government Problem identified by leg: incomplete indifference.... to overcome const preference for equal county government structure established classification on 1.3 million and or largest state in texas. But no correlation byw size and info. General law address in is poss . Eg school board takeover staute.Current problem rather than temporary solution permanent change | |||
The postulate being established that the constitutional language, no 'law impairing the obligation of contracts shall ever be made,' means to-day what it meant in 1875-1876, when the Constitution was formulated by the Convention and adopted by the people, the problem before us will be solved when we ascertain the meaning of that language as generally understood when the Constitution was adopted. | |||
act does not classify; rather its identifies. 1909 AG: local if according to last preceding census census | |||
Davis 1871: "Of a total of 242 public and private acts and resolutions which became laws, 148 (near two-thirds) were of private nature, and of 57 acts which passed both Houses, but failed for different reasons to become laws, 49 were private. Thus it appears that more than two-thirds of the legislation and I may say, of your valuable time, was at that session taken up (at great cost to the people of the State) in matters of purely personal or private character." | |||
https://lrl.texas.gov/scanned/govdocs/Edmund%20J%20Davis/1871/SOS_Davis_1871.pdf | |||
Davis 1873: "Much valuable time is occupied at each session with the matter of private or special legislation. The most of this can be put out of the way by general incorporation laws, of which one was passed at the last session, but which did not include railroad companies, and also made other exceptions. In permitting those exceptions the act is defective. There is no good reason why railroad companies may not, as well as others be remitted altogether to a general incorporation act." | |||
https://lrl.texas.gov/scanned/govdocs/Edmund%20J%20Davis/1873/SOS_Davis_1873.pdf | |||
Water Closets veto: https://lrl.texas.gov/scanned/vetoes/12/CS1/HB167.pdf | |||
Cf. Felton v. Johnson, 247 S.W. 837, 840 (Tex. 1923) ("In view of the history of this bill, we think we would do violence to the plain intent of the Legislature if we recommended a construction of this statute which would include professional services of a real estate broker within its terms. Before we could make such a recommendation, we think it would be necessary for us to insert in this statute the very provisions which the Legislature not only refused to include therein but expressly eliminated therefrom. The courts should not do that. To do so would clearly invade the prerogatives of the legislative branch of the state government."). | |||
Cf. Cannon v. Hemphill, 7 Tex. 184, 208 (1851) ("The 34th section of article 7 of the Constitution declares, that 'every law enacted by the Legislature shall have but one object, and that shall he expressed in the title.' The object of this act is single, and is expressed in the title; and its provisions cannot be construed to regulate proceedings in any other in the District Courts. Such is the inevitable result of the constitutional provision, and such its force and effect, if it be mandatory, and not directory, in its character. The consequences of such a restriction on legislative discretion and power, of the application of such a test of the validity of special provisions, years, nay ages, after their passage, and after rights under them have accrued, maybe very inconvenient and destructive. But such results were for the consideration of the convention; and, in their wisdom, such restriction was deemed salutary and proper. It would he irrational to suppose that this provision of the Constitution is merely a directory one, which may be obeyed or disregarded at the will and caprice of the Legislature. Under such construction, it would be shorn of its strength and efficacy—would become a dead letter—a mere excrescence in the Constitution."). | |||
post-legis: https://texashistory.unt.edu/ark:/67531/metapth6731/m1/837/zoom/?resolution=2&lat=2700&lon=600 | |||
https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1940/gm2329.pdf ("The above quoted statute attempts to regulate the affairs of those counties coming within the above designated population brackets in a manner violative of Article III, Section 56, of the State Constitution. The last mentioned section of the Constitution, is designed, in part, to insure that the system of county government shall be as uniform as is possible. It is intended to prevent the passage of laws which discriminate between the counties of this state without adequate and substantial difference in the characteristics of the individual counties indicative, rationally, of the necessity for the discrimination.") | |||
Appeal of Ayars, 122 Pa. 266, 281-82 (1889) ("Some of the cases above cited have been quoted at considerable length for the purpose of showing that this court never intended to sanction classification as a pretext for special or local legislation. On the contrary, the underlying principle of all' the cases is that classification, with the view of legislating for either class separately, is essentially unconstitutional, unless a necessity therefor exists, — a necessity springing from manifest peculiarities, clearly distinguishing those of one class from each of the other classes, and imperatively demanding legislation for each class, separately, that would be useless and detrimental to the others. Laws enacted in pursuance of such classification and for such purposes, are, properly speaking, neither local nor special. They are general laws, because they apply alike to all that are similarly situated as to their peculiar necessities. . . . The purpose of the provision under consideration was not to limit legislation, but merely to prohibit the doing, by local or special laws, that which can be accomplished by general láws. It relates not to the substance, but to the method of legislation, and imperatively demands the enactment of general, instead of local or special laws, whenever the former are at all practicable.") | |||
State ex rel. Harris v. Herrmann, 75 Mo. 340, 354-55 (1882) ("In the case at bar, on the contrary, it is simply impossible that section 4 should ever operate except upon an existing state of facts, except as to 'particular persons of a class,' and that class residents of a certain city, to-wit: St. Louis. Its operation is centered upon those persons, and ceases when they are ousted according to its terms. The section in question may be a general law in form, but courts of justice cannot permit constitutional prohibitions to be evaded by dressing up special laws in the garb and guise of general statutes.") | |||
==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) | |||
x Williams v. Houston FR&RF, 121 SW3d 415 (TCA 2003) | |||
x Diaz v. State, 68 SW3d 680 (TCA 2000 denied) | |||
x Sw Travis v. Austin, 64 SW3d 25 (TCA 2000 dism) (xstatewide) | |||
x FM Properties v. Austin, 22 SW3d 868 (Tx 2000) (dissent) | |||
x Owens Corning v. Carter, 997 SW2d 560 (Tx 1999) | |||
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 SW2d 262 (TCA 1982 nre) | |||
X Ex parte Spring, 586 SW2d 482 (TxCrimApp 1978) | |||
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) | |||
_ San Marcos v. LCRA, 508 SW2d 403 (TCA 1974) | |||
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 SW2d 807 (Tx 1959) (military divorce) | |||
x Rios v. State, 288 SW2d 77 (TxCrimApp 1955) (jury wheel) | |||
x Atwood v. Willacy Co, 284 SW2d 275 (TCA 1955 nre) (cited TSC) | |||
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) (cited TSC) | |||
x Wood v. Marfa ISD, 123 SW2d 429 (TCA 1939 revog) | |||
x Watson v. Sabine, 120 SW2d 938 (TCA 1938 refd) (oil field) | |||
x Brownfield v. Tongate, 109 SW2d 352 (TCA 1937) | |||
x Ex Parte Heiling, 82 SW2d 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 case) | |||
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 Clarke vs. Reeves County, 61 SW 981, 25 TCA 463 (TCA 1901 refd) (state interest) | |||
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 v. Ellis, 18 S.W. 723 (Tex. 1892) (due process) | |||
x Dillingham v. Putnam, 109 Tx 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 Bohl v. State, 3 TexCtApp 683 (1878) (equal protection) | |||
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) | |||