Untitled Texas Attorney General Opinion

• Court: Texas Attorney General Reports
• Decided: July 2, 1947
• Docket: V-267
• Status: Published

Opinion

R-602

OFPICE OF

THE ATTORNEY GENERAL AUSTIN, TEXAS

PRICEDANIEL June 25, 1947 ATTORNEY GENERAL

The Honorable Beauford ,H. Jester Governor of the State of Texas Aus tin, Texas Opinion Ro. V-267 Re: Constitutionality of House Bill 543. Dear Governor Jester: Your statement and request for an opinion on the constitutionality of H. B. 543 are in part as fol- lows : wThis measure is now before me for action, having been passed by the regular session of the 50th Legislature. “It purports to amend Article 3174 of the Revised Civil Statutes of Texas, 1925. This act reads as follows: ‘Article 3174. Management - Each eleemosynary institution estab- lished by law shall be managed and controlled in accordance with the provisions of this title. The gen- eral control, management and dlrec- tion of the affairs, property and business of such institutions is vested in the State Board of Con- trol .* “In both the caption and in the body of the Act, the general statement is made ‘Wherever in the laws or Statutes of the State, the State Board of Control is named in connection with the control, management and direction of the affairs of said Texas School for the Deaf, the same shall hereafter be taken to mean and to apply,to the said Board of Trustees for the Texas School for the Deaf for all purposes, and said Board of Trustees for the Texas School for the Deaf shall succeed to all duties, ppwers and functions of the State Board of Control...’ P

Hon. Beauford H. Jester, Page 2

11 . . . .

RIt is clear to me from reading House Bill 543 that it seeks to amend Article 3202-a and 3202-b of the Revised Civil Statutes of Texas, by a general reference. “I should like to, have your opinion on how this provision relates to Article 3, Section 36, of the Texas Constitution. n. . . .

"1 shall be most grateful for your advice on the constitutionality of the measure. . . .v Section 2 0r Il. B. 543 provides 8s~follows: *All of the powers, duties and functions 0r the State Board of Control in so far as the same apply to the Texas School for the Deaf are here- by transferred from said State Board of Control to said Board of Trustees for the Texas School for the Deaf and said Board of Trustees for the Texas School for the Deaf shall hereby be vested with the general control, management and direc- tion of the affairs, property and business of said Texas School for the Deaf, including the ap- pointment of the Superintendent for said school. Wherever in the laws or Statutes of the State, the State Board of Control is named in connection with the control, management and direction of the affairs of said Texas School for the Deaf, the same shall hereafter be taken to mean and to apply to the said Board of Trustees for the Texas School for the Deaf for all purposes and said Board of Trustees for the Texas School for the Deaf shall' succeed to all duties, powers and functions of the State Board of Control, provided, however, the preparation and submission of the budget for the Texas School for the Deaf shall be made in acoordance with the provisions of Article 688 and 689, Revised Civil Statutes, 1925, as amended, and the purchase of all sup- plies shall ,be made in accordance with Arti- cle 634, Revised Civil Statutes, 1925, as amended. Provided nothi% in this Act shall be construed to in any manner effect, impair, repeal or modify the provisions of Article 3183 or any other provision of the statutes Hon. Beauford H. Jester, Page 3

providing for the support and maintenance of said school as an eleemosynary institu- tion of this Stste; and said school and the children entitled to the benefits thereof shall receive the same kind of support, maintenance and care provided in other eleemosgnary institutions in this State.” This Section of the Act clearly transfers the powers, duties, and functions of the Board of Control, in so far as they apply to the Texas School for the Deaf,to a Board of Trustees for the Texas School for the Deaf.The Act unquestionably modifies Articles 3202-a, 3202-b, and other statutes affecting the Texas School for the Deaf. This is accomplished without re-enacting Articles 3202-a, 3202-b and the other statutes affected thereby, and pre- sents the question of a violation of Article III, Section 36 of the Texas Constitution, which reads as follows: VIo law shall be revived or amended by reference to its title; but in such case the act revived, or the section or seations amended, shall be re-enacted and published at length.” While no Texss cases are found applying this constitutional provision to Acts transferring duties from one officer or body to another by mere reference to the Acts setting out those duties, many decisions are to be found both in Texas and in other jurisdictions which in- dicate the scope of such a provision and which hold ex- pressly or by implication that it will not be applied strictly or 11 terally. Illustrating this tendency, we quote from the Arkansas case of Watkins v. Eureka Springs, 4 S. W. 384, as roliowps: “It could not have been the intention of the framers of the constitution to put unrea- sonable restraints upon the power of legisla- tion, and thus unnecessarily embarrass the legislature in its work. Montgomery Ass’n. v. Robinson, 69 Ala. 415; Home Ins. Co. v. Taxing District, 4 Lea, 644. They meant on- ly to lay a restraint upon legislation where the bill was presented in such form that .the legislator could not determine what its pro- visions were from an inspeotion of it. What Ron. Beauford H. Jester, Page 4

is not within the mischief is not within the inhibition. Every intendment,is to be in- dulged in favor of the prerogative of the legislative branch of the government. A doubt of its powers to legislate inures to its ben- erit. The.language,of the provision is so broad that a literal construction would hamper legislation almost to the extent of prohibiting it. . . .* In the case of Southwestern Gas and Electric Co. v. State, 190 S. W. (2d) 132, the Austin Court of Civil Appeals, in dealing with an attack on a statute under Article III, Section 36, speaking through Chief Justice YcClendon, said : “The provision has been construed in a number of decisions in this State, as well as in other states having similar constitu- tional provisions. It is the general rule in this as well as in other states thst the provision does not apply to legislative acts which are complete within themselves, although their effect may be to amend some other law. And this rule seems to apply regardless of whether the amendatory act specifically men- tions the act thereby in effect amended. The State concedes the correctness of this rule as to cases in which there is no mention of the amended act; but contends that where, as here, the act amended is mentioned in the amendatory act, there is an amendment by reference and the provision applies. We do not so construe the adjudicated oases in this state. To the contrary we regard the cases of Snyder v. Compton, 87 Tex. 374, 28 S. W. 106, and Quinlan v. Houston & T.C.R. Co. 89 Tex. 356, 34 S . W. 738, as practical- ly on all fours with the case at bar. . .” The Supreme Court of Texas affirmed this ‘ease in an ooinion bv Justice Slatton found in 193 S. W. (2d) 675, in-which h& saia: “It is the rule that the provision of the Constitution invoked by the State does not ap- ply to legislative enactments which are com- pl.etewithin themselves, even though their ef- fect may be to amend some other law. The lead- Hon. Beauford H. Jester, Page 5

ing cases announcing this view are: Snyder v. Compton, 87 Tex. 374, 28 S. W. 1061, and Quinlan v. Houston & T. C. R. Co., 89 Tex. 356, 34 S.W. 738.”

39 Texas Jurisprudence, page 129, Section 66, contains the following language: *An existing statute or provision in the laws of Texas may be adopted in new legisla- tion by appropriate descriptive reference, without the necessity of re-enacting and pub- lishing it at length. In this manner, even a statute of snother legislative jurisdiction may be sdopted. A statute so adopted is known as a ‘reference statute’.- 50 American Jurisprudence, 195, Section 215, reads in part as follows: “Statutes which refer to other statutes and make them applicable to the subject of the new legislation are called ‘referenoe statutes’. Such a statute is not strictly amendatory or revisory in character within the meaning of a constitutional provision ~which forbids a law to be revised, altered, or amended by reference to its title only. . . . .” The question here presented is the subject of a comprehensive annotation found in 67 A, L. R., page 564, construing the case of Quinlan v. Houston 6cT. C. R. Co., 89 Tex. 356, 34 5. W, 738, oited in Southwestern Gas and Electria Co., case, suprs, and dealing with the general question. We quote from page 568: “In upholding a special act which ex- pressly extended to a named railroad all the grants, provisions, immunities, and privileges of a previous act (referred to by title and date), to encourage the con- struction of railroads by donations of lands, and which further provided that the charter was subject to all the provisions of the general railroad laws, the court in Quinlan v. Houston & T. C. R. Co., (1896) 89 Tex. 356, 34 S. W. 738, noted that the Constitution provided that ‘no ,lawshall Hon. Beauford H. Jester, Page 6

be revised or amended by ~refer,enceto its title; but in such case the act revised, or ,section amended, shall be re-enacted and published at length;’ and said: *It is quite clear that 6 12 . . . is in no sense a revision of the Act of 1854. It extends the operation of that act, so as to make it apply to a company to which it did not apply before. If this may be deemed an amendment, in any sense of the VJOrd, it is evident that it was not such an amendment as was contemplated by the section of the Constitution just~quoted. . . . That proPision, and other,similar constitutional restrictions upon the form of legislation, have never, in construc- tion, been given a rigid effect.’ And it added thst the meaning ‘ofthe new act was as clear as if the provisions of the gen- eral law had been repeated in it.” In dealing with Acts transferring, by refer- ence to the applicable statutes the duties of one offic- er or body to another, we quote from 67 A. L. R., page 569, the general rule supported by many authorities thereafter cited. *The transfer of authority and the corresponding duties from one arricer or body which has by previous enactment been entrusted with the same particular author- ity and duties, to a pifferent officer or body, without at the same time making any change whatever in the nature or extent of the authority and duties themselves, forms one of the clearest of all the numerous examples of situations which have been dealt with in statutes which have been at- tacked as violating a constitutional re- quirement of the sort indicated in the ‘pre- ceding subdivision. “New statutes of this particular variety, which simply transfer auties from certain officers or bodies to others, without in any way changing the duties them- selves, the effect being a mere substitution of the person or persons charged with these duties, have generclllybeen regarded ss not Hon. Bea.Ford H. Jester, Page 7

within the contemplation of the oonstitu- tional requirement to the effect that the existing statutory provisions must be re- enacted or set out at length, the new statutes being regarded as not strictly amendatory.* In the light of the above authorities, the pro- bitioa of Article III, Section 36, is limited to acts which are not complete within themselves and the meaning of which is not understandable to the reader. House Bill 543’ is a complete act although it modifies and chang- es existing statutes without expressly naming them all. It does, however, apprise the reader of its intent, mean- ing, ana purpose, and merely trarifers the duties from one body to another. You are therefore respectfully advised that House Bill Number 543 is not violative of Article III, Section 36 of the Texas Constitution. The effect or this opinion is limited only to the statutes which re- fer to the Board of Control in its relation to the Tex- as School for the Deaf. You are further advised, however, that Souse Bill 543 will probably raise numerous questions as to possible conflicts of authority between the Board of Trustees of the Texas School for the Deaf and the Board of Control in so far as riders on the appropriation bill (S. B. 374) are concerned. Such riders apparently were written without reference to the fact that H. B. 543 hsd transferred certain Board of Control duties to the Deaf School Board of Trustees. These conflicts will require considerable future interpretation of the respective duties of these Boards, but we will express no opinion thereon until such time as the question may arise.

House Bill 543, in so far as it transfers the control of the Texas School for the Deaf from the Board of Control to a Board of Trustees for the Texas School for the Deaf is not ucconstitu- .-

Hon. Beauford H. Jester, Page 8

tiom.1 as violating Article III, Section 36 of the Texas Constitution. Yours very truly ATTORNEYGENERAL OF TEXAS

EQ?i!!~H~~ Assistant

ATTORNEYGENERAL

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