Untitled Texas Attorney General Opinion ( 1990 )

THE ATTORNEY GENERAL
OF TEXAS
.IlX MA-X July 31, 1990
A-SEY G:ESERAL
Honorable Bob Bullock Opinion No. JM-1200
Comptroller of Public
Accounts Re: Effective date of amendments to
P. 0. Box 13528 section 144(b) of article 6701d,
Austin, Texas 78711 V.T.C.S., which allocates to munici-
palities money received from traffic
fines, and related questions
(RQ-2033)
Dear Mr. Bullock:
You ask a number of questions relative to the applic-
ability of section 144(b) of article 6701d, V.T.C.S, prior
to and after the date of its amendment by the 71st Legisla-
ture. Subsection (b) concerns the allocation of money
received from traffic fines by municipalities.
Section 144 as amended by House Bill 243, Acts 1989,
71st Leg., ch. 233, 8 1 (eff. Sept. 1, 1989), provides:
(a) Fines collected for violation of any
highway law as set forth in this Act shall be
used by the municipality or the counties in
which the same are assessed and to which the
same are payable in the construction and
maintenance of roads, bridges, and culverts
therein, and for the enforcement of the
traffic laws regulating the use of the public
highways by motor vehicles and motorcycles
and to help defray the expense of county
traffic officers.
(b) In each fiscal vear. a municiwalitv
may retain, from fines collected for
violation of anv hiahwav law as set forth in
this Act. an amount ecual to 30 wercent of
the municiwalitv*s revenue for the wrecedinq
fiscal Year from all sources, other than
federal funds and bond wroceeds. as shown by
the audit werformed under Section 103.001,
Local Government Code. After a municiwalitv
P. 6342
Honorable Bob Bullock - Page 2 (JM-1200)
has retained that amount. the municiwalitv
shall send to the state treasurer anv wortion
of a fine collected that exceeds one dollar
(Sl). The state treasurer shall denosit
funds received under this eection in the
state treasurv to the credit of the aeneral
revenue fund.
(c) Definition: 'Interstate highway' as
used herein is a portion of the national
system of interstate and defense highways
located within this state which now
hereafter may be designated officially by tE=
Texas Highway Commission and approved
pursuant to Title 23, United States Code.
(d) Definition: 'Speed-measuring device'
as used herein is any 'Doppler shift speed
meter' or other 'radar' device whether
operating under a pulse principle or a
continuous-wave principle, photo-traffic
camera, or any other electronic device used
to detect and measure speed.
(e) The provision of Subsection 144(b),
shall not be applicable to any municipality
having a population of 5,000 or more inhab-
itants according to the last preceding
federal census. (Emphasis reflects amendment
by the 71st Legislature.)
Section 2 of House Bill 243 provides:
This Act takes effect September 1, 1989.
Section 144(b), .Uniform Act Regulating
Traffic on Highways (Article 6701d, Vernon's
Texas Civil Statutes), as amended bv this
Act. awwlies onlv to fines collected bv a
municiwalitv durina a fiscal vear that beains
on or after the effective date of this Act.1
(Emphasis added.)
1. West Publishing Company omitted this section in
Vernon's Texas Civil Statutes. That fact does not effect
the validity of this provision.
p. 6343
Honorable Bob Bullock - Page 3 (JM-1200)
Prior to amendment by the 71st Legislature subsection
(b) of section 144 provided:
(b) When a person is convicted in a mu-
nicipal court of the offense of operating a
vehicle on a highway in the state highway
system, including an interstate highway, as
that term is defined in Subsection 144(c), at
speed greater than is reasonable and
&dent under the circumstances, the
municipal court shall remit to the state
treasurer any portion of the fine assessed
and collected which exceeds two dollars ($2)
times the number of miles per hour by which
the offender exceeded the posted speed limit
as such excess speed is determined by a
speed-measuring device defined '
Subsection 144(d). The riser of miles pi:
hour by which an offender exceeds the posted
speed limit is determined by subtracting the
posted prima facie speed limit from the
number of miles per hour the offender is
alleged to have driven at the time of the
offense according to the summons or promise
to appear. The state treasurer shall deposit
funds received under this Section in the
General Revenue Fund. (Emphasis added.)
Your first question asks "Whether the 'old' 5 144(b)
continues in effect in each jurisdiction until the 'new'
5 144(b) takes over or whether there is a gap in coverage
between the 'old' 5 144(b) from September 1, 1989, until the
'new' § 144(b) became effective for the next municipal
fiscal year beginning after September 1, 1989."
Prior to amendment subsection (b) provided a formula
for determining the division of fine money between the
municipal court and the state on each speeding ticket. As
amended subsection (b) contains a method for calculating the
division of fine money for 'Violation of any highway law as
set forth in this Act" based on an "amount equal to 30 per-
cent of the municipality's revenue for the preceding year."
We do not believe that the legislature intended that there
be a lapse of time between September 1, 1989, and the time
that a new fiscal year begins for the municipality. Section
2 of House Bill 243 expressly provides that it is applicable
"only to fines collected by a municipality during a fiscal
year that begins on or after the effective date of this
Act." We conclude that the provisions of section 144(b)
pv 6344
Honorable Bob Bullock - Page 4 (JM-1200)
prior to amendment remain in effect until a municipality's
new fiscal year begins following September 1, 1989.
Your second question concerns situations where cities
have been incorporated less than twelve months prior to
their coming under House Bill 243, and cities that have
changed their fiscal year less than twelve months before
coming under the new law. You ask what the basis should be
for calculating the allocation of money from traffic fines
under these scenarios where there has not been a full fiscal
year prior to the effective date of this act.
For cities where a full fiscal year had not elapsed
prior to September 1, 1989, the determination should be made
under subsection (b) prior to its amendment until a full
fiscal year has elapsed. Where cities have changed their
fiscal year less than a year prior to the effective date of
the amendment, we believe the legislature intended that the
allocation be made on the basis of the last full fiscal year
prior to September 1, 1989.
Your third question is what the basis should be for
calculating the amount of money from traffic fines to be
retained by cities that incorporated after September 1,
1989. Under this scenario, we believe section 144(b), as
amended by the 71st Legislature, becomes effective at the
expiration of the fiscal year following incorporation.
Until such time the allocation is based on subsection (b)
prior to its amendment.
Your fourth question is based on a situation where a
city has V1only recently established a municipal court and
city budget, although incorporated a full twelve months
prior to September 1, 1989." You ask, "how, if at all, can
these cities participate in the revenues allowed by House
Bill 243 where they had no revenue during their 'preceding
fiscal year.'"
We believe that section 144(b), prior to and since the
amendment resulting from House Bill 243, contemplates that a
municipality would generate revenue. Upon establishment of
a budget and a municipal court, we will assume that the
municipality will have revenue. Until the expiration of its
first fiscal year following establishment of a budget, the
allocation would be based on subsection (b) prior to its
amendment.
Your fifth question raises the issue of whether House
Bill 243 unconstitutionally discriminates against smaller
P. 6345
Honorable Bob Bullock - Page 5 (JM-1200)
cities located on the interstate highway system since
subsection (e) makes section 144(b) applicable to
municipalities with populations of less than 5,000. YOU
state that these smaller cities depend on traffic fines for
a substantial portion of their revenue and they feel that
they are being punished for the aggressive tactics of a few
small municipalities.
You call attention to decisions of our courts that
equal protection of the law is guaranteed under the United
States Constitution, Amendment 14, section 1, and the Texas
Constitution, article I. Sections 3 and 3a apply to persons
rather than municipalities, counties, or governmental
agencies created by the state. &i..Ll Texas Water Quality
L, 568 S.W.Zd 738 (Tex. Civ. Appy*- Austin 1978, writ
ref'd); Harris County. v. Down1 arn 489 S.W.Zd 140 (Tex.
Civ. App. - Houston [14th Dist.je197i, writ ref'd).
We believe that the constitutional question presented
is whether the statute in question violates the provision in
the Texas Constitution prohibiting the legislature from
passing local or special laws.
Article III, section 56, of the Texas Constitution
prohibits the legislature from enacting local or special
laws concerning numerous specific subjects and **in all other
cases where a general law can be made applicable." Relevant
to your question, section 56 prohibits any local or special
law regulating the affairs of cities and towns.
In Public Util. Comm'n v. Southwestern Water Services,
636 S.W.Zd 262 (Tex. App. - Austin 1982, writ ref'd n.r.e.),
the court makes an in-depth examination of the
constitutional prohibition against local or special laws as
the law has evolved through the court's construction of this
provision. In Public Util. Comm'n the court stated:
The literal language of art. III, § 56
would require the invalidation or any statute
applying to a particular locality or group
because, in most cases, \a general law can
be made applicable.' However, the Supreme
court, in determining whether a specific law
was local or special, has looked to the
policy underlying the constitutional
prohibition rather than to its literal
language. Accordingly, in Clark v. Finley
93 Tex. 171, 54 S.W. 343, 345-6 (1889), th;!
Court refused to invalidate a statute
p. 6346
Honorable Bob Bullock - Page 6 (JM-1200)
reducing sheriffs' and constables* fees in
counties in which more than three thousand
persons had voted in the last presidential
election.
In Clark, the Court adopted the distinc-
tion between a general law and a special law
drawn by the Pennsylvania Supreme Court in
Wheeler v. Philadelwhia 77 Pa. 338 t-75) v
that 'a statute which kelates to persons or
things as a clasp * a general law, while a
statute which rela:Is to particular persons
or things as a class is special, and comes
within the constitutional prohibition.#
Clark, 54 S.W. at 345 (emphasis added). This
definition, of course, did not answer the
question as to which particular classes were
constitutionally suspect. The Court answered
this question by stating the general rule
that the class created by the statute must
be a real class, and not a 'pretended' class
created by the legislature to evade the con-
stitutional restriction. LA 'pretended'
class would be one which 'manifest[s] a
purpose to evade the constitution.' L 54
S.W. at 346. Ultimately, the class created
in a statute must bear a reasonable relation
to the general purpose of the legislation and
concern a matter of general statewide effect
or interest.
. . . .
[I]n Stewhensen v. Wood, 119 Tex. 564, 34
S.W.Zd 246 (Tex. Comm'n App. 1931, opinion
adopted), the Court determined a law prohib-
iting certain fishing methods in specified
coastal counties was not an unconstitutional
special or local law. Although the law
applied to a 'closed' class of counties, this
class reasonably related to the general
object of the legislation, and involved a
matter of statewide interest -- the
management of coastal marine life.
In 1959, the Court upheld a statute
authorizing counties to issue park
development bonds if those counties were
located on the Gulf of Mexico and contained
P- 6347
Honorable Bob Bullock - Page 7 (JM-1200)
an island suitable for park purposes. This
statute plainly established a 'closed class'
but was reasonably related to the general
object of the act -- the development of
public beaches -- which benefitted all the
people of the state. Countv of amer n V.
Wilson, 160 Tex. 25, 326 S.W.2d 16: (19g9).
In Robinson v. Hill 507 S.W.Zd 521 (Tex. 1974), the
court held that a statut; providing for the licensing of
bail bondsmen in counties having a population of 150,000 or
more does not violate the prohibition against general and
special laws. In Robinson the court stated:
Assuming as we do at this point that the
statute by its terms does not apply
throughout the State, the primary and
ultimate test of whether the law is general
or special is whether there is a reasonable
basis for the classification it makes and
whether the law operates equally on all
within the class. [Citations omitted.] 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 * enforcing bond
forfeitures and determini:: 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. There is a reasonable basis for the
classification made by the law, and the
classification is broad enough to include a
substantial class. The fact that counties
just on either side of the population line
are similarly situated, or that there are
excluded counties constituting part of the
same metropolitan area as included counties,
does not make the classification unreason-
able. Any classification on the basis of
population is subject to this complaint, and
that circumstance alone is not a sufficient
basis for holding the statutory classifica-
tion unconstitutional. The Legislature has
rather broad power to make classifications
for legislative purposes, and there is
P- 6348
Honorable Bob Bullock - Page 8 (JM-1200)
nothing here to suggest that the line drawn
is arbitrary or capricious or a mere device
used for the purpose of giving a local law
the appearance of a general law. m &filler
V. Paso County, 136 Tex. 370, 150 S.W.2d
1000.
In cases in which the constitutionality of a statute is
challenged, the courts consistently grant the presumption of
validity to a statute and presume that the legislature has
not acted unreasonably. mbinson v. Ii.&&, suira; Smith v.
Davis, 426 S.W.2d 827 (Tex. 1968).
House Bill 1162, Acts 1981, 67th Leg., ch. 824, at 3134
(eff. Aug. 31, 1981), amended section 144 to exempt larger
cities from having to share fine money from speeding
violations on interstate highways with the state. The bill
analysis to House Bill 1162 stated that the purpose of
subsection (b) of section 144 "was to discourage the use of
radar as a local revenue device by certain small cities in
which most of the interstate travel is not local traffic."
It was further noted that in larger cities "the interstate
freeway system plays an important part of the city's
internal transportation system, and much of it is local
traffic."
While subsection (b), as amended by the 71st
Legislature, covers all violations of highway laws on
interstate highways rather than only speeding violations, we
perceive no less opportunity for abuse by municipalities
that may be prompted to issue traffic citations solely for
the purpose of raising revenue.
It is undoubtedly true that many small municipalities
that collect ~traffic fines from violations on interstate
highways do not abuse the system to raise revenue to support
their budgets. As noted in pobinson any classification
based on population is subject to this complaint. The
legislature may well have concluded that the chance for
abuse in charging traffic violations on interstate highways
was greater in small municipalities that utilize the money
generated from traffic fines from nonresidents as a
substantial portion of their revenue. There appears to be a
reasonable basis for the classification made by section 144.
The classification is broad enough to cover a substantial
class. We believe that a court would find that the line
drawn is not a device used for the purpose of giving a local
law the appearance of general law, but that the legislation
concerns a matter of statewide effect and interest and
P- 6349
.
Honorable Bob Bullock - Page 9 (JM-1200)
therefore that section 144 is not violative of article III,
section 56, of the Texas Constitution.2
SUMMARY
The provisions of section 144(b) of
article 6701d, V.T.C.S., prior to its
amendment by the 71st Legislature remain in
effect until a fiscal year begins for the
municipality following September 1, 1989.
The basis for calculating the allocation of
traffic fine money where there has not been a
full fiscal year prior to September 1, 1989,
is based on the fine in each speeding case
pursuant to the allocation formula contained
in subsection (b) prior to its amendment
until the expiration of a full fiscal year.
For cities that have changed their fiscal
year less than a year prior to the effective
date of House Bill 243, the allocation should
be based on the last full fiscal year prior
to September 1, 1989. For cities incorpo-
rated after September 1, 1989, section
144(b), as amended by the 71st Legislature,
becomes effective at the expiration of the
fiscal year following incorporation. Until
such time the allocation is based on subsec-
tion (b) prior to amendment. In instances
where the municipality has only recently
established a budget and a municipal court,
although incorporated for a full year in
which there was no revenue, the allocation is
to be made under subsection (b) prior to its
amendment until the expiration of the fiscal
year following establishment of the budget.
Section 144.(b) of article 6701d, V.T.C.S., is
not a local or special law as prohibited by
2. Without passing on its relevance to this question,
we note that municipalities with a population of less than
5,000 are chartered by general law pursuant to article XI,
section 4, of the Texas Constitution and possess only such
powers as those given it by the legislature and those which
may be necessarily implied therefrom. See Ex warte Ernest,
136 S.W.2d 595 (Tex. Crim. App. 1940).
P. 6350
Honorable Bob Bullock - Page 10 (JM-1200)
article III, section 56, of the Texas Con-
stitution.
JIM MATTOX
Attorney General of Texas
MARY KELLER
First Assistant Attorney General
LOU MCCREARY
Executive Assistant Attorney General
JUDGE ZOLLIE STEAKIEY
Special Assistant Attorney General
RENEA HICKS
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Preparedby Tom G. Davis
Assistant Attorney General
P- 6351