Attorney General Opinion GA-0670

ATTORNEY GENERAL OF TEXAS GREG ABBOTT October 8, 2008 The Honorable Richard J. Miller Bell County Attorney Post Office Box 1127 Belton, Texas 76513 Dear Mr. Miller: Opinion No. GA-0670 Re: Constitutionality of sections 143.088 and 143.1041, Local Government Code (RQ-0699-GA) You inquire about the constitutionality under article III, section 56, Texas Constitution, of two sections in chapter 143 ofthe Local Government Code.! Chapter 143 establishes a civil service system for municipal police and fire departments. See generally TEx. Lac. GOy'T CODE ANN. §§ 143.001-.363 (Vernon 2008). The purpose of chapter 143 is to "secure efficient fire and police departments composed of capable personnel who are free from political influence and who have permanent employment tenure as public servants." Id. § 143.001(a). The first section about whichyou askis section 143.088, whichprohibits a personfrom either accepting money or anything of value from, or giving money or anything of value to, another for retiring or resigning from a civil service position. See [d. § 143.088(b)-(c). Section 143.088(a) excludes from the prohibition municipalities with a population of 1.5 million or more. See [d. § 143.088(a). And you point out that there is no comparable prohibition found elsewhere that is applicable only to municipalities with a population of1.5 million ormore. See Request Letter, supra note 1, at 1. The second section about which you inquire is section 143.1041, concerning entrance exam requirements. See [d. at 1. Entrance exams are required for beginner positions in civil service fire and police departments. See TEx. Loc. GOy'T CODE ANN. § 143.025(a) (Vernon 2008). Under section 143.025, entrance exams are opento "eachpersonwho makes a proper applicationand meets the requirements" ofchapter 143. Id.; see also [d. § 143.025(k) (providing that section 143.025 does not "apply to a police department located in a municipality with a population of 1.5 million or more"). In contrast, section 143.1041 operates in municipalities with a population of 1.5 million or more and limits the applicants who may take the entrance exam to only those applicants who have been admitted to or who are enrolled in a police officer training academy. See [d. § 143.1041(b)(2), (c); see also [d. § 143.101 (providing that subchapter G, which includes section 143.1041, applies to only a municipality with a population of 1.5 million or more). 'See Letter from Honorable Richard J. Miller, Bell Connty Attorney, to Honorable Greg Abbott, Attorney General of Texas, at I (Apr. 3, 2008) (on file with the Opinion Committee, also ""ai/able at http://www .texasattorneygeneral.gov) [hereinafter Reqnest Letter]. The Honorable Richard J. Miller - Page 2 (GA-0670) You observe that the City ofHouston is the only city in Texas that satisfies the 1.5 million populationrequirement. See RequestLetter, supra note I, at 1; see also http://factfinder.census.gov/ (2000 census data showing Houston population of1,953,631). You state that these sections, which provide requirements exclusive to the City ofHouston that are different from therequirements for all other municipalities subject to chapter 143, "differ solely because of a population bracket determination."2 Request Letter, supra note I, at I. And you argue there is no legitimate rationale for the differences. See id. at 3. You thus contend the two sections are local or special laws that violate article ill, section 56, Texas Constitution. See Request Letter, supra note 1, at 1-3. Article ill, section 56, Texas Constitution, prohibits the Legislature, except as otherwise authorized bythe constitution, from passing any local or special lawregulating, among other things, the affairs ofcities. See TEX. CONST. art. ill, § 56(a)(2). Section 56 also provides that "in all other cases where a general law can be made applicable, no local or special law shall be enacted." Id. art. ill, § 56(b). A general law is distinguished from a local or special law in that "'a statute which relates to persons or things as a class is a general law, while a statute which relates to particular persons or things as a class is special, and comes within the constitutional prohibition.'" Pub. Uti!. Comm 'n ofTex. v. Sw. Water Servs. Inc., 636 S.W.2d 262, 265 (Tex. Civ. App.-Austin 1982, writ rei'd n.r.e.) (quoting Clarkv. Finley, 54 S.W. 343, 345 (Tex. 1899)). The Texas Supreme Court has stated that the purpose of article ill, section 56 is to "prevent the granting ofspecial privileges and to secure uniformity oflaw throughout the State as far as possible." Miller v. El Paso County, 150 S.W.2d 1000, 1001 (Tex. 1941). Texas courts also recognize, notwithstanding the constitutional prohibition, that the Legislature has broad powers to make classifications for legislative purposes and to enact laws pertaining to the classifications. See id. But the Legislature's power to make legislative classifications is limited inthat "such legislationmust be intendedto applyuniformlyto all who may come within the classification . . . , and the classification must be broad enough to include a substantial class and must be based on characteristics legitimately distinguishing [the] class from others with respect to the public purpose sought to be accomplished by the proposed legislation." Id. at 1001-02. In other words, the "primary and ultimate test ofwhether a law is general or special is whether there is a reasonable basis for the classification made by the law, and whether the law operates equallyon all withinthe class." Maple Run Mun. Uti!. Dist. v. Monaghan, 931 S.W.2d 941, 945 (Tex. 1996); see also Smith v. Davis, 426 S.W.2d 827, 830 (Tex. 1968); Rodriguezv. Gonzales, 227 S.W.2d 791, 793-94 (Tex. 1950); Miller, 150 S.W.2d at 1002; Bexar County v. Tynan, 97 S.W.2d 467,470 (Tex. 1936). 'You point out that chapter 143 contains other provisions that use a population bracket of 1.5 million. See Request Letter, supra note I, at 3; see, e.g., TEX. Loc. GOy'T CODE ANN. §§ 143.01O(i) (Vernon 2008) (applicability based on municipality of 1.5 million or more), .014(a), .023(g), .030(a), .033(c), .036(e), .101-.135. You inquire specifically about only sections 143.088 and 143.1041, and we limit our opinion accordingly. Moreover, we note that analysis under article III, section 56 involves consideration ofthe specific provision and the relationship between the legislative classification and the "public purpose sought to be accomplished by the proposed legislation." Miller, 150 S.W.2d at 1001-02. Thus, any determinationwemake withrespect to sections 143.088 and 143.1041 has no implication for other statutes containing a population bracket. The Honorable Richard J. Miller - Page 3 (GA-0670) With respect to classificationbypopulation, as is the casehere, the Texas Supreme Court has said that "[t]he use ofpopulation brackets alone, ... ,does not necessarily render a law special in nature and contrary to the constitutional prohibition against same." Smith v. Decker, 312 S.W.2d 632,635 (Tex. 1958). But, it has also long "been held that the use ofpopulation brackets alone to direct legislation toward a particular countyneeding a particular type oflegislation will not in itself save the law from being unconstitutional as a special law ifthe classification bears no reasonable relationship to the objects sought to be accomplished." ld. at 635-36. The population classification "must be based upon a real distinction, and must not be arbitrary or a device to give what is in substance a local or special law the form ofa general law." Bexar County, 97 S.W.2d at 470. We received briefs in connection with your request that contend these two sections are constitutional because the population limitation ofl.5 million does not limitthese provisions to only the City of Houston.3 This argument is based on court opinions that have used a "closed class" analysis wherein a statute is held unconstitutional "when [the population bracket] can never apply to any but one city in any possible event." Gould v. City olEIPaso, 440 S.W.2d 696, 700 (Tex. Civ. App.-El Paso 1969, writ ref'd n.r.e.). Under that analysis, ifthe populationbracket allows another entity such as a city or county to subsequently enter the bracket, the law is upheld. See Gould, 440 S.W.2d at 696-700. But the closed or open nature of a population bracket is not dispositive. See Pub. Uti!. Comm 'n., 636 S.W.2d at 264 (comparing statutes with a "closed class"that have beenheld constitutional with "open class" statutes held to be unconstitutional, the court stated "[w]e have concluded the 'closed class' test is an over-simplified and inaccurate way to analyze whether a statute is a local or special law"); Oakley v. Kent, 181 S.W.2d 919, 923-24 (Tex. Civ. App.-Eastland 1944, no writ) ("Because population as a basis for classification has been sustained by the courts in respect to legislation on certain subjects, it has been assumed, erroneously, that population brackets will serve in all instances to avoid the condemnation ofthe Constitution. This mistaken assumption proceeds from a failure to note that population [bracket] has been sustained as a basis for classification only in those instances where it bore a reasonable relation to the objects and purposes ofthe law and was founded upon rational difference in the necessities or conditions ofthe groups subjected to different laws.") (adopting entirety ofanalysis from Tex. Att'y Gen. Gp. No. 0-5326 (1943) at 1-6). Thus, even in statutes classified by population, the Texas Supreme Court has opined, most recently in 1996, that the central question is whether the population classification bears a reasonable relationship to the object sought to be accomplished. See Maple 'See Brieffrom Richard W. Carter, Attorney for Combined Law Enforcement Associations ofTexas, to Nancy S. Fuller, Chair, Opinion Committee, Office of Attorney General, at 3 (May 13, 2008) (stating that the "population requirement does not limit the classification strictly to one municipality[; r]ather, it is a valid identifier of the municipalities that require certainprocedures to handle the distinctsituations thatmayarise") [hereinafterCLEATBrief]; BrieffromAaron J. Suder, StaffAttorney, HoustonPolice Officers' Union, to Honorable GregAbbott, Attorney General ofTexas, at3 (May 16, 2008) (stating that provisions in question "will apply equally to any municipality that eventually reaches [the] populationthreshold"); BrieffromRichard C. Mumey, onbehalfofthe HoustonProfessional Fire Fighters Association, to Honorable Greg Abbott, Attorney General ofTexas, at 6 (May 19, 2008) (stating the populationbracket ''will apply to any city which may grow to such size in the future[; bloth Dallas and San Antonio are currently within striking distance at 1.2 million and 1.3 million, respectively"); Brieffrom Arturo G. Michel, Houston City Attorney, to Honorable Greg Abbott, Attorney General of Texas, at I (August 4, 2008) [hereinafter Houston Brief] ("With the inexorable growth in the population ofmunicipalities across the state, other cities will eventually be in that class.") (all briefs on file with the Opinion Committee). The Honorable Richard J. Miller - Page 4 (GA-0670) Run, 931 S.W.2d at 945; see also Decker, 312 S.W.2d at 635-36; Rodriguez, 227 S.W.2d at 794 (condemning law as prohibited local and special law where court detennined that "[n]o valid reason can be perceived for limiting the operation ofthe Act to border counties"); Smith v. State, 49 S.W.2d 739, 744 (Tex. Crim. App. 1932) (striking down law as an unconstitutional local or special law because the "classification does not rest in real and substantial distinctions rendering the class involved distinct [and] the basis of the classification-the population involved-has no direct relation to the purpose ofthe law"). In examining the constitutionalityofsections 143.088 and 143.1041 under article III, section 56, we are mindful that a Texas court will begin bypresuming the statutes are valid. See Davis, 426 S.W.2d at 831. The Legislature is presumed to have not acted unreasonably or arbitrarily. See id. A court will also presume that the Legislature "'understands and correctly appreciates the needs of its own people, that its laws are directed to problems made manifest by experience, and that its discriminations are based upon adequate grounds.'" Id. (quoting Nat'l Guard Armory Bd. v. McCraw, 126 S.W.2d 627, 634 (Tex. 1939)). And when considering a law challenged under article III, section 56, "[i]fthere could exist a state of facts justifying the classification or restriction ... , [a court] will assume that it existed." Scurlock Permian Corp. v. Brazos County, 869 S.W.2d 478, 485 (Tex. App.-Houston [1st Dist.] 1993, writ denied). The Legislature, however, may not authorize an action that the constitution prohibits. See Tex. Mun. League Intergov 'tl Risk Pool v. Tex. Workers' Compo Comm 'n., 74 S.W.3d 377,381 (Tex. 2002). We consider the most recent enactment first. Section 143.1041 was added to chapter 143 by the 80th Legislature. See Act ofApr. 25, 2007, 80th Leg., R.S., ch. 27, § 1,2007 Tex. Gen. Laws 25,25-26. We find no express statement ofpurpose or intent in section 143.1041. Absent express statements in legislative enactments challenged under article III, section 56, Texas courts have looked to other sources for possible justifications. See Maple Run, 931 S.W.2d at 945-46 (examining court record for legitimate reason for statute), Davis, 426 S.W.2d at 831 (takingjudicial notice ofnumber ofstate-supportedmedical schools and assuming existence ofspecialrequirements and obligations of schools identified in classification). Here, we examine the bill analysis accompanying the enrolledversion ofthe bill enacting section 143.1041. Itindicates the Legislature intended to address a need to speed up the pre-employment process for applicants to certain police departments and to get more officers on the street in a timely fashion. The practice ofgiving the civil service examination prior to admission into a police training academy is a burden on the resources ofpolice departments because many people who take the examination fail at a later portion in the application process. TEX. SENATE COMM. ON INTERGOVERNMENTAL RELATIONS, BILL ANALYSIS, Tex. S.B. 339, 80th Leg., R.S. (2007). Providing for a faster application process for the hiring ofpolice departments in larger municipalities is reasonable. Under article III, section 56, however, the question is whether the 1.5 million population limitationbears areasonable relationship to the faster applicationprocess for police officer candidates. See Maple Run, 931, S.W.2d 945. We note that the Chairman ofthe The Honorable Richard J. Miller - Page 5 (GA-0670) Senate Intergovernmental Connnittee indicated section 143.1041 has potential application in other municipalities. See Hearings on Tex. S.B. 339 Before the Senate Comm. on Intergovernmental Relations, 80th Leg., R.S. (Feb. 28, 2007), available at http://www.senate.state.tx.us. In the connnittee hearing at which the bill enacting section 143.1041 was discussed, the Chairman stated he thought the ideabehind section 143.1041 was good and inquired whether it shouldbe applicable to other cities subject to chapter 143. See id. He noted that the provision could be made uniformly applicable to all cities subject to chapter 143 by simplyremoving the population provision. See id. The failure ofthe Legislature to remove the population limitation knowing the benefits ofthe statute to all municipalities subject to chapter 143 could lend support to the argument that the population limitation in section 143.1041 is "arbitrary or a device to give what is in substance a local or special law the form of a general law." Bexar County, 97 S.W.2d at 470. Nevertheless, given the general presumption that a statute is valid and the specific presumption under article ill, section 56 that a state of facts could exist that justifies the classification, we cannot saythatthe Legislature had no reasonable basis for the classification. Thus, we cannot conclude as a matter oflaw that section 143.1041 is unconstitutional under article ill, section 56. See Tex. Att'y Gen. Op. Nos. JM-l130 (1989) at 4 ("[W]e cannot say that it is violative of[article ill, section 56] as a matter oflaw[,] ... we cannot determine factual matters in the opinion process ... , and there is an insufficient factual basis for reaching a decision as a matter oflaw."), MW-421 (1982) at 2-3 ("We cannot say as a matter oflaw that there is no rational basis for the classification created by the [statute]."), H-1080 (1977) at 3 ("[W]e cannot conclude that a court would hold that [the provision] is a local or special law on the basis of the classification created [therein]."). We next consider section 143.088, which was adopted by the Legislature in 1985. See Act ofMay 26, 1985, 69th Leg., R.S., ch. 910, § 4, sec. 14D(8)(a), 1985 Tex. Gen. Laws 3046, 3051. We find no express statement ofpurpose or intent regarding section 143.088 that informs us ofthe Legislature's intent with the enactment of the section. The overall purpose of chapter 143 is to secure "capable personnel who are free from political influence and who have permanent employmenttenure as public servants.'" TEX. Loc. GOV'TCODEANN. § 143.001(a) (Vemon2008). Briefing we received suggests that by excluding larger police forces from the prohibition against sellingretirements section 143.088 promotes efficiencyinthe operationoflargerforces byproviding greater ability to retain police officers, increased flexibility to avoid high litigation costs, and more abilityto staggervacancies throughout the larger force. See CLEAT Brief, supra note 3, at 4. While these proffered purposes are certainly reasonable with respect to large police forces, the question under article ill, section 56 is whether the population limitation of 1.5 million bears a reasonable relationship to those, or any other, purposes. Again, bound by the presumptions ofconstitutionality and classificationjustification, we cannot determine as a matter oflaw that section 143.088 violates article ill, section 56. See supra at 4--5; see also Tex. Att'y Gen. Op. Nos. JM-l130 (1989), MW- 421 (1982), H-1080 (1977). 'The City ofHouston informs us that it has a city ordinance that applies to all City employees that prohibits the behavior prohibited in section 143.088. See Houston Brief, supra note 3, at 2 n.1 (referring to Ordinance No. 85-837). The Honorable Richard J. Miller - Page 6 (GA-0670) SUMMARY Though article ill, section 56, Texas Constitution, prohibits the Legislature from passing any local or special law regulating the affairs ofcities, the Legislaturenonetheless has broadpowers to make classifications for legislativepurposes and to enact laws pertainingto the classification. Theprimaryconsiderationunder article ill, section 56, is whether there is a reasonable basis for the classification made by the law related to the purpose ofthe law. Sections 143.088 and 143.1041, whichpertainto civil service exam requirements and limitations on civil service retirement, respectively, apply only to municipalities with a population of 1.5 million or more, currently the City of Houston. Such a population classification is not unconstitutional where there is a basis for the population bracket that is reasonably related to the object of the statute. Given the presumption ofconstitutionalityofstatutes as well as the presumption that a state of facts exists to justify a legislative classification, we cannot conclude as a matter of law that these two provisions are local or special laws prohibited by article ill, section 56. KENT C. SULLNAN First Assistant Attorney General ANDREW WEBER Deputy Attorney General for Legal Counsel NANCY S. FULLER Chair, Opinion Committee Charlotte M. Harper Assistant Attorney General, Opinion Committee