Untitled Texas Attorney General Opinion ( 1953 )

TEEA~TORNEYGENERAL
OF TEXAS
August 28, 1953
Hon. Robert S. Calvert
Comptroller of Public Accounts
Capitol Station
Austin, Texas Opinion No. S-90
Re: Effective date of House
Bill No. 11, Chapter 289,
Acts 53rd Legislature,
Dear Mr. Calvert: 1953.
You have requested our opinion as to when House
Bill No. 11, 53rd Legislature, becomes effective.
Such bill, enacted as Chapter 289, Acts of the 53rd
Legislature, 1953, contains an emergency clause in Section 6
thereof as follows:
“‘Sec. 6. The fact that motor fuel dealers
,operating bulk plants and service stations are now
suffering losses caused by evaporation and other
handling losses, and incur expenses in collecting
and acc~ounting for the tax levied by the motor fuel
tax law, creates an emergency and an imperative
public necessity that the Constitutional Rule re-
quiring bills to be read on three several days in
each House, and the Constitutional Rule providing
that bills shall not become effective until the ex-
piration of ninety (90) days after the adjournment
of the Legislature, be suspended, and said Rules
are hereby suspended, and this Act shall take ef-
fect and be in force from and after the first day of
the first month which commences more than sixty
(60) days after its passage, and it is so enacted.”
. ’
Hon. Robert S. Calvert, page 2 (S-90)
Section 39 of Article 3 of the Constitution of
Texas, provides that:
“No law passed by the Legislature, ex-
cept the general appropriation act, shall take
effect or go into force until ninety days after
the adjournment of the session at which it was
enacted, unless in case of an emergency, which
emergency must be expressed in a preamble
or in the body of the act, the Legislature shall,
by a vote of two-thirds of all the members
elected to each House, otherwise direct; said
vote to be taken by yeas and nays, and entered
upon the journals.”
Such House Bill No. 11 did not receive a two-
thirds vote of all members elected to each House of the Leg-
islature. Consequently, under the above quoted constitutional
prohibition, the provisions of the emergency clause attempt-
ing to fix an effective date prior to the expiration of ninety
days after adjournment are of no force or effect. Copus v.
Chorn, 136 Tex. 209, 150 S.W.2d 70 (1941).
While the courts have recognized that even when
an emergency clause is ineffective because lacking the neces-
sary two-thirds vote, it may be looked to as an aid in deter-
mining Legislative intent, as in Popham v. Patterson, 121 Tex.
615, 51 S.W.2d 680 (1932), it is believed that it should be looked
to as an aid only, and only to determine intent where provisions
are ambiguous, and not to create or read into the act effective
terms or provisions not found elsewhere therein. See Missouri-
Kansas-Texas R. Co. of Texas v. Thomason, 280 S.W. m
App. 1926, error ref.), in which the Court said:
“Emergency clauses on bills . . . are not
added for the purpose of clarifying or declaring
the intention of the LJgislature, nor to explain
the express language of the act; but only for the
purpose of setting forth the reasons for the SUS-
pension of the constitutional rule requiring the
.
Hon. Robert S. Calvert, page 3 (S-90)
bill to be read on three s,eparate days, and for
putting into immediate effect such act, what-
ever be its scope and terms.”
There are no other provisions in House Bill No.
11 providing for any effective date.
In construing the phrase “until ninety days after
the adjournment”, the Supreme Court in Halbert v. San Saba
Springs Land & Live Stock Association, 89 Tex. 231, 34 S.W.
639 (1896), held that “90 full days must expire between the
adjournmentof the legislature and the taking effect of the law.”
Although the Supreme Court has since, in Copus
v. Chorn, supra, computed the effective date of an act lacking
an emergency clause as being the 90th day after adjournment,
such computation was not necessary to the decision reached,
and the rule laid down in the Halbert case,, supra, was not ex-
pressly overruled.
Therefore, it is our opinion that the effective date
of House Bill No. 11, enacted as Chapter 289, Acts of the 53rd
Legislature, 1953, is August 26, 1953, under the authority of
Halbert v. San Saba Springs Land & Live StockAssociation, supra.
SUMMARY
The effective date of House Bill 11, Chap-
ter 289, Acts 53rd Legislature,‘1953, relating to
motor fuel taxes, is August 26, 1953.
APPROVED: Yours very truly,
C. K. Richards JOHN BEN SHEPPERD
Reviewer Attorney General
John Ben Shepperd
Attorney General
Phillip’Rbbinson
JA:PR:da Assistants