             THE         ATTORNEY                  GENE
                             OF     TEXAS
                          AUSTIN,   Texan         98911


                                    October       3, 1973


Th,e Honorable Joe Resweber                          Opinion No.    H-119
County Attorney
Harris County Courthouse                             Re:    Validity of Senate Bill 642,
Houston,  Texas 77002                                       63rd Legislature   (Article
                                                            1118x, V. T. C.S.)
Dear   Mr.   Resweber:

     You have requested our opinion concerning the constitutionality    of
Senate Bill 642 of the 63rd Legislature     (Acts 1973, 63rd Leg., ch. 141,
p. 302; Article  1118x, V. T. C. S. ) which generally provides for the creation
of rapid transit authorities  possessing   the powers,  among others,  to con-
struct and operate mass transit systems and to levy a “motor vehicle
emission tax” based upon the number of cubic inches of cylinder displace-
ment.

    You have suggested,     as possible  grounds of unconstitutionality,  (1)
that the Act is a local bill rather than a general taxing statute and (2) that
the Legislature  lacks constitutional   authority to create a district having
such taxing powers.

     Section 3 of the Act authorizes     the “governing body of a principal
city in a metropolitan    area ” to institute proceedings   to create a rapid
transit authority.     A “metropolitan    area” is defined in § 2(a) as “any area
withinThe State of Texas having a population density of not less than 250
persons per square mile and containing not less than 51 per cent of the
incorporated    territory  comprising    a city having a population of not less
than 1, 200, 000 inhabitants according to the last preceding or any future
federal census,     and in which there may be situated other incorporated
cities,   towns and villages and the suburban areas and environs thereof. ”

    Section 15 would exclude from this definition any bicounty metropolitan
area - an area comprised    of two contiguous counties each having within its
bounds a city of 350, 000 or more inhabitants.




                                      p.    570
The Honorable    Joe Resweber,    page 2   (H-119)




     Obviously,  the only metropolitan      area in Texas presently meeting
the definition is the Harris County-Houston        area; and it would seem,
on initial impression,that    the holding of the Supreme Court of Texas in
County of Harris v. Shepperd,        291 S.W.2d 721 (Tex. 1956) would be
determinative   of the matter.      There,   a “wheel tax” was declared uncon-
stitutional as a local law.     It was contained in a statute,   expressly  enacted
for raising revenue,     which commenced       with the words:  “This local law
for the maintenance     of public highways for Harris County . . . . ”

     The “wheel tax” law of the Shepperd case was violative of Article 3,
§ 56 of the Constitution of Texas,  which generally prohibits the enactment
of special or local laws where a general law can be made applicable,    and
Article 8, $ 3 of the Constitution which further requires that “Taxes shall
be levied and collected by general laws and for public purposes only. ”

      The late Chief Justice Alexander of our Supreme Court, in Miller v.
El Paso Count& 150 S.W.2d 1000 (Tex. 1941), said of these two constitutional
provisions     that their “wholesome”   purpose was to prevent the granting of
special privileges      and to secure uniformity of law throughout the State.  He
noted that special and local laws earlier had become “an efficient means
for the easy enactment of laws for the advancement        of personal rather than
public interests,     and encouraged the reprehensible   practice of trading and
 ‘logrolling’.   ”

    These thoughts were echoed by Justice Norvell writing for the majority
in County of Cameron v. Wilson,  326 S.W.2d 162 (Tex. 1959).

    Nevertheless,     the courts have accorded great latitude to the Legislature
in determining    those to whom an enactment may apply and there are several
long recognized    means authorized by Texas court decisions,    by which bills
may be limited in their scope without being classed as special or local laws.

     Where a bill is tied to a very narrow range of population determined by
an identified census,   as, for example,   applicable to all cities having a
population of between 106, 000 and 110, 000 inhabitants according to the census
of 1920, it is generally held to be a local law and invalid.     City of Fort Worth
v. Bobbitt,   36 S.W.2d 470 (Tex. 1931).  On the other hand, when the same
legislation  was later made applicable to all cities having a population of
more than 100, 000 according to the last preceding census,       it was held to be
a general law.    City of Ft. Worth v. Bobbitt, 41 S.W.2d 228 (Tex. 1931).




                                     p.   571
The Honorable    Joe Resweber,     page 3   (H-119)




    However,      not every open-ended classification   (e. g., all areas having
a population in excess of a certain number) is constitutional       and not all
“brackets”    (e. g., all areas with populations between two figures) are
unconstitutional.     The courts now require a showing that there “is a
reasonable   basis for the classification   and that the law operates equally
on all within the classification.   ” Rodriguez v. Gonzales,     227 S.W.2d
791, 793 (Tex. 1950).

    Justice Greenhill (now Chief Justice),        writing for the Supreme Court
in Smith v. Davis,   426 S.W.2d 827 (Tex.       1968), stated the rule to be:

             “The Legislature   may restrict the application of a
        law to particular   counties by the use of classifications,
        providing the classifications     are not arbitrary.     There
        must be a reasonable     relationship    between the class-
        ification and the objects sought to be accomplished          by
        the statute.   Smith v. Decker,      158 Tex. 416, 312 S.W.2d
632 (1958); Miller v. El Paso County, 136 Tex. 370, 150
        S. W. Zd 1000 (1941).  As stated in Miller,      the classification
        I . . . 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 ultimate test for
        whether a law is general or special is whether there is a
        reasonable   basis for the classification     and whether      the
        law operates equally on all members         within the class.
        County of Cameron v. Wilson,         160 Tex. 25, 326 S.W.2d
162 (1959); Rodriguez v. Gonzales,        148 Tex. 537, 227
        S. W.Zd 791 (1950). ”

See also Bexar County v, Tynan. 97 S.W.2d 467 (Tex. 1936); Anderson             v.
Wood, 152 S.W.2d 1084 (Tex. 1941); Snith v. Decker, 312 S.W.2d 632
(Tex. 1958).

    Another exception to the general rule against special or local laws       is
that a law may be made applicable to only one area if it is of general
import and interest to the people of the State.

    Thus,   in County of Cameron     v. Wilson,     supra,   it was said:




                                      p.   572
The Honorable         Joe Resweber,   page 4   (H-119)




          .   .  In a number of decisions
                  .                        it has been said that a
        statute is not local or special within the meaning of the
        Constitution even though its enforcement     or operation
        is confined to a restricted  area, if persons or things
        throughout the State are affected thereby or if it operates
        upon a subject in which the people at large are interested
        . . . ” (326 S. W. 2d at 165) (Emphasis   added)

    Cameron County involved public park facilities      on Padre Island.
Stephensen v. Wood, 34 S.W.2d 246 (Tex. 1931), applied the rule to laws
for the preservation     of fish in streams and coastal waters.  Smith v.
-.      supra,    ,involved a hospital district and medical school.

     In construing the application of these rules to a particular         statute
to determine its constitutionality      we are admonished by the courts that a
statute is to be construed as valid if reasonably         possible.   Duncan v.
Gabler,     215 S.W.2d 155 (Tex. 1948).    It is to be presumed that the Legis-
lature did not act unreasonably       or arbitrarily   in adopting a statutory
classification.     Th,e mere fact thzit reasonable     minds might differ as to
the efficacy of an enactment is not sufficient grounds to hold it either
arbitrary     or unreasonable.    It is for the Legislature     and not for us or
the courts to decide the wisdom         or expediency of a bill.     Smith v. Davis,
supra.

     We are not at liberty to substitute our judgment for that of the Legis-
lature if there exists any state of facts justifying a classification   such as
that of the “bicounty metropolitan     area” of Senate Bill 642.   Inman v.
Railroad Commission,        478 S.W.2d 124 (Tex. Civ. App., Austin, 1972,
err. ref’d.,  n. r. e. ); Reed v. City of Waco, 223 S.W.2d 247 (Tex. Civ.
APP. 9 Waco, 1949, err. ref’d. )

     With these rules in mind, we turn to the provisions      of Senate Bill 642.
In our opinion, it is a general law within the meaning of the above-discussed
legal rules and authorities    and, on that ground, its constitutionality   must
be upheld.   Although the Act, by its terms,      applies only to the Harris
County-Houston    metropolitan    area at this time, it is open-ended    and may
apply in the future to other areas which can meet the definition        of “metro-
politan area”.   It cannot be said that, as a matter of law, the classification
of areas contained iq that definition is either arbitrary     or unrea.sonable.




                                        p.   573
The Honorable    Joe Resweber,    page 5     (H-119)




Surely there is a basis for holding that the problems  of air pollution,
traffic congestion and mass transportation   in such an area differ
from those existing in less populous areas.    We cannot say that the
line drawn by the Legislature   should have been drawn elsewhere.

     Furthermore,    we are of the opinion that the matter of controlling
air pollution and traffic congestion in such a metropolitan        area can
fairly be said to be a matter of interest and import to people through-
out the State.   The Houston metropolitan      area to which this Act presently
is applicable is one of our most populous and popular areas.           Each year
large numbers of people from all parts of Texas and the United States
visit the area for various and sundry reasons.          The interdependence    of
industrial   :and commerc~ial centers of the State, and the commerce
between them could have fairly have been viewed by the Legislature            as
affecting the entire State.    Since we belidve it is our legal duty to pre-
sume that the Legislature     understands aad correctly      appreciates  the
needs of the people of this State, that its laws are directed to problems
made manifest by experience,       that its classifications   are based on
adequate grounds,     and that the stated purpose of the Rapid Transit Act
(aimed at air pollution,   traffic congestion and related problems       of
general concern) dare genuine, wiz are of the opinion that the statute is
not unconstitutional   as a special or local law.      As we have said above,
this decision is not meant and should not be construed as a commentary
on the general merits of the proposition,       for that is and should be init-
ially for the Legislature   and ultimately for the voters to decide.

    What we have said about the population classification        of the Act so
as to limit its application presently to the Houston area applies equally,
we believe,   to the classification  of bicounty areas to exclude them.       The
Legislature   reasonably    might have found that in an area with two cbn-
tiguous counties,   each having a sizeable city that might be classified       as
as a “principal”   one, the problems     of pollution and traffic congestion
would be met better by a different~ approach than that contemplated          by
Senate Bill 642.

    It is our opinion, therefore,    that the statute is a general law and
meets the requirements     of Article   3, $ 56 and Article 8, $ 3 of the
Constitution.




                                      p.   574
The Honorable    Joe Resweber,    page 6    (H-119)




    Turning to the question of the validity of the “emission  tax”, we
are first confronted with the need to determine whether it is, in fact, a
tax for revenue purposes or, to the contrary,    is primarily  a regulatory
measure.    The distinction is well stated in Hurt v. Cooper,   110 S.W.2d
896 (Tex. 1937):

        0 . , . The principle of distinction generally    recognized
        is that when, from a consideration    of the statute as a
        whole, the primary purpose of the fees provided therein
        is the raising of revenue,   then such fees are in fact
        occupation taxes, and this regardless     of the name by
        which they are designated.     On the other hand, if its
        primary purpose appears to be that of regulation,       then
        the fees levied are license fees and not taxes.     [ citing
        cases]  . . . . ” (110 S. W. 2d at 899)

And see Harris    County v. Shepperd,      supra.

     In $1 of Senate Bill 642, the Legislature     recited the findings which
called for the enactment of the law.       Summarized,      they were (a) the
State’s population has achieved increasedrrPbility        freeing it of county
lines: (b) resulting concentrations    of population result,     in turn, in
concentrations    of motor vehicles with conc,omitant air pollution endanger-
ing public health and creating hazards;      (c) the concentrations      of motor
vehicles overtax existing streets causing congestion with its attendant
ills; (d) the proliferation  of the use of motor vehicles      results,   in part,
from the absence of efficient mass transit facilities;        and (e) that the
“artificial”  use of the air, resulting in pollution,    is subject to regu-
lation and control ,by the State.    Section 20, the emergency        c,lause,
is framed in much the same tenor.

     The Act provides for the levy of a tax which, of necessity,        will
result in raising revenue to be used to aid in the financing of mass
transit facilities.    However,   in our opinion one of the prime purposes
of the Act is to control and regulate the use of motor vehicles        in the
affected area with the ultimate goal of reducing pollution of the air and
congestion   of the streets.    Thus, the “emission    tax” serves a dual
purpose - partially revenue-raising      a,nd partially regulatory   - and with
its overriding    general thrust having substantial regulatory     aspects.




                                     p.   575
The Honorable        Joe Resweber,      page 7   (H-119)




     It is our opinion, therefore,  that the court authorities do mt permit
us to subject this Act to the most strict limitations   imposed by the Con-
stitution on revenue taxes.     See Atkins v. State Highway Dept., 201 S.W. 226
(Tex. Civ. App.,    Austin, 1918, no writ); Payne v. Massey,   196 S.W.2d 493
(Tex. 1946).

     In Atkins v. State Highway Dept.,   supra, (quoted with apparent approval
by the Supreme Court in County of Harris v. Shepperd , supra), the plaintiff
challenged the constitutionality of mot.or vehicle registration  fees based upon
horse power, invoking various provisions     of Article 8 of the Constitution.

    In rejecting     his contentions,    the Court said:

        ” .’ .   Those sections of the Constitution relate to
                 .
        ordinary ad valorem taxes,     and not to license taxes,
        or fees,  such as we have found the fees here involved
        to be.   Besides,  authorities are numerous to the
        effect that license fees for the operation of automobiles
        may be fixed according ,to the horse power . . . . ”
        (201 S. W. at 232)

     Section 17 of Article 8 of the Constitution gives to the Legislature        broad
powers to determine       subjects and objects to be taxed, consistent with other
constitutional   provisions,    so long as such classifications     are not unreason-
able or arbitrary.      See Calvert v. Capital Southwest Corporation,         441 S.W.2d
247 (Tex. Civ. App. , Austin,      1969, err, ref’d., n. r. e. ), appeal dis’m.   397
U.S. 321 (1970).     The United States Supreme Court has recently held in
dealing with State tax classifications     under attack for violation of the Equal
Protection    Clause,   that great leeway is permitted to states in making tax
classifications.     Lehnhausen v. Lakeshore       Auto Parts Co.,         u. s.
35 L. Ed. Zd 351, 93 S. Ct. ,I001 (1973).     We are unable to say that the regu-
latory aspects of Senate Bill 642 appl~icable to a limited area, of the State
and in varying amounts dependent upon engine           displacement     are not con-
sistent with the proper regulation uf causes of pollution and aggravated
traffic congestion.

     Section 13 of the Act authorizes     the board to adopt and enforce “reason-
able rules and regulations”      (a) to maintain safety; (b) governing use of its
facilities  by the public, including charges to be paid; (c) regulating “privileges!’
on any of its property;    and (d) regulating the collection   and payment of
emission taxes.     It provides,    in part.:



                                          p.   576
The Honorable     Joe Resweber,    page 8     (H-119)




               “The board may set reasonable      penalties for the
          breach of any rule or regulation of the authority which
          shall not exceed fines of more than $200, or imprison-
          ment for more than 30 days or both.        Such penalties shall
          be in addition to any other penalties provided by the laws
          of the state and may be enforced by complaint filed in the
          appropriate    court of jurisdiction in the county in which
          the authority’s   principal office is located. ”

     The legislative  power, and particularly   that having to do with the
definition of crimes,   is confined by our Constitution to the Legislature.
Article 1, $ 28, Article 2, $1, Article 3, § 1. The Penal Code, in Article
3, provides that ” . . . no person shall be punished for any act or omission,
unless the same is made a penal offense,      and a penalty is affixed thereto
by the written law of this State. ” And see $1. 03(a), Penal Code of 1973,
(Acts 1973, 63rd Leg.,     ch. 399, p. 883).

    The rule is well    stated in 12 Tex. Jur. Zd,      Constitutional   Law,   $ 65,
p. 410:

               “The legislature  cannot delegate to an administrative
          agency the power to make a law prescribing      a penalty.   But
          the legislature   may authorize an administrative    agency cre-
          ated for that purpose to prescribe    duties or ascertain  con-
          ditions on which an existing law may operate in imposing a
          penalty and in effectuating the purpose designed in enacting
          the law. !’

    In the present Act, no crime is defined and no penal offense is created
by the Legis~lature.  That power purports to be delegated to the transit
authority along with the power to fix punishments for violations.

     Since a transit authority does not have general police powers,      as a city
does, we are of the opinion that so much of $13 as purports to delegate to
transit authorities   the power to make violation of its rules and regu-
lations a crime,    will be held unenforceable.   Ex parte Lislie,   223 S.W. 227
(Tex. Grim. 1920); Dockery v. State, 247 S.W. 508 (Tex. Grim. 1923); -Ex
parte Wilmoth,     67 S.W.2d 289 (Tex. Crim. 1933); Williams    v. State, 176
S.W.2d 177 (Tex. Crim. 1943);     Attorney General Opinions O-872 (1939);
O-2913 (1940); O-5047 (1943); Attorney General Letter Advisory        No. 42
(1973).


                                       p.   577
.




    The Honorable   Joe Resweber,     page 9     (H-119)




        This provision is severable    and does not affect     the constitutionality
    of other portions of the Act.

                              SUMMARY

               The creation of transit authorities   under Senate Bill
           642 of the 63rd Legislature  and the authorization   of an
           “emission  tax” are not unconstitutional.

                Insofar as the Act purports to delegate to the board
           of an authority the power to define crimes and fix punish-
           ments for their violation,   that portion is unconstitutional.
           However,    it is severable and does not invalidate the entire
           Act.

                                               Very   truly yours,




                                               JOHN L. HILL

                                        c/     Attorney General      of Texas




    DAVID M. KENDALL,        Chairman
    Opinion Committee




                                         p.    578

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