Untitled Texas Attorney General Opinion ( 1977 )

The Attorney General of Texas
December 9, 1977
JOHN L.HlLL
Attorney
General
Honorable Joe Hubenak Opinion No. H- 1102
Chairman, Committee on
Agriculture and Livestock Re: Constitutionality
House of Representatives of H.B. 11 in ratifying
Austin, Texas actions taken to partic-
ipate in the National
Dear Chairman Hubenak: Flood Insurance Program.
You have requested our opinion concerning the effect
and constitutionality of section 2 of House Bill 11, which
ratifies the proceedings and actions of any political sub-
division "with respect to participation in and compliance
with the National Flood Insurance Program." Acts 1977,
65th Leg., 1st Called Session, ch. 4, at 58. This portion
of House Bill 11 was passed as a curative act to validate
actions taken in such regard without proper authority.
See Attorney General Opinion H-1011 (1977).
-
Your questions are essentially as follows:
(1) Does the Texas Legislature have the
power to ratify, confirm, approve,
and validate past, unauthorized ac-
tions taken between June 30, 1970
and September 1, 1977, supposedly
under Article 8280-13, V.T.C.S., by
those counties and political sub-
divisions which had not qualified
for participation in the National
Flood Insurance Program by June 30,
1970?
(2) Does House Bill No. 11 destroy all
those causes of action for damages,
injunctive relief and/or taxpayer
relief which may have arisen since
June 30, 1970 against,those counties
and other political subdivisions
which took unauthorized actions, as
described above in question cl)?
p. 4516
. I
Honorable Joe Hubenak - Page 2 (H-1102)
(3) Does House Bill No. 11 violate
Article I, Section 16 of the Con-
stitution of the State of Texas,
which reads:
No bill of attainder, ex
post facto law, retroactive
law, or any law impairing
the obligation of contracts,
shall be made.
It is well established that the Legislature may validate
a statute or act of a political subdivision so long as it
originally had power to enact or authorize it. Perkins v. State,
367 S.W.2d 140, 145 (Tex. 1963): State v. Bradford, 50 S.W.2d
1065 (Tex. 1932); Anderson County Road Dlist. No, 8 v. Pollard,
296 S.W. 1062 (Tex. 1927);I Nolan County v. State, 17 S.W. 823
(Tex. 1891). Such statutes of tour se must be consistent with
the Constitution.
Article 1, section 16 has been construed to prohibit the
enactment of only those retroactive laws which impair vested
rights. Deacon v. City of Euless, 405 S.W.2d 59, 62 (Tex. 1966);
cox v. Robison, 150 S.W. 1149, 1156 (Tex. 1912); Attorney
General Opinion H-634 (1975). Curative statutes are necessarily
retroactive, since they are "intended to act upon past trans-
actions. . . .II Hunt County v. Rain County, 7 S.W.2d 648, 649
(Tex. Civ. App. -- Texarkana 1925, no writ). Texas courts have
upheld a number of curative statutes without discussion of arti-
cle 1, section 16, including statutes which validate the forma-
tion of districts and their issuance of bonds and collection of
taxes. Matlock v. Dallas County Arcadia Fresh Water Supply Dist.
NO. 1, 12 S.W.2d 181 (Tex. Comm'n App. 1929, opinion adopted);
Anderson County Road Dist. v. Pollard, supra; Brown v. Truscott
Independent School Dist., 34 S.W.2d 837 (Tex. Comm'n App. 1931,
jdgmt adopted). Similarly, want of authority to annex property
has been held cured by validation. Hunt v. Atkinson, 17 S.W.2d
780 (Tex. Comm'n App. 1929, jdgyt $c$ed). In Matlock v. Dallas
County Arcadia Fresh Water Supp y . No. 1 su ra
held that taxes levied by an invalidly establ~s&~t``d?%Ect
had been validated by the Legislature and could be collected from
the individual defendant. To the extent that the Texas courts
have spoken on the subject, they have upheld curative statutes
against claims based on article-l, section 16. Brown v. Truscott
Independent School Dist., supra; Louisiana Ry. & Nav. Co. v. State,
298 S.W. 462, 466 (Tex. Civ. App. -- Dallas 1927), aff'd, 7
S.W.2d 71 (Tex. Comm'n App. 1928, jdgmt adopted) (dm.
p. 4517
. I
Honorable Joe Hubenak - Page 3 (H-1102)
The,failure of the courts to discuss the impact of article
1, section 16 on curative statutes suggests that it does not
prohibit them. One court has, however, indicated that a vali-
dating statute cannot divest a private right acquired under a
final judgment. Inman v. Railroad Comm'n, 478 S.W.2d 124, 129
(Tex. Civ. App. -- Austin 1972, writ ref'd n.r.e.). In our
opinion, the courts would probably find that validating stat-
utes may constitutionally cut off causes of actions and defenses
which have not yet been secured in a final judgment. This
determination would be consistent with the implications of the
cases upholding curative statutes.
The courts have stated that validating statutes should
be liberally construed. Perkins v. State, -367 S.W.2d 140 (Tex.
1963); City of Mason v. West Texas Utilities Co., 237 S.W.2d
273 (Tex. 1951). They have also recognized that private persons
may in qood faith invest money in reliance on unauthorized
actions-of counties. Citv of Mason v. West Texas Utilities Co.,
supra at 275; see also Hunt County v. Rain County- sunra at 654.
I ------ -~- --
In view of the public interests served bv validatling statutes,
the courts may be-reluctant to recognize-new kinds of vested
rights that would interfere with the implementation of such
statutes. In our opinion, the courts would find that House
Bill 11 destroys the causes of action you mention without vio-
lating article 1, section 16 of the Texas Constitution.
SUMMARY
Section 2 of House Bill 11, 65th Legis-
lature, First Called Session, which
ratifies past unauthorized actions by
political subdivisions with respect to
participation in the National Flood
Insurance Program, is a valid exercise I
of legislative authority. It does not
violate article 1, section 16 of the
Texas Constitution and destroys any
cause of action based on lack of legis-
lative authority for the actions rati-
fied.
of Texas
p. 4518
Honorable Joe Hubenak - Page 4 (H-1102)
MPPROVED:
!i&b-J&
DAVID M. KENDALL, First Asslstant
c. ROBERT HEATH, Chairm'an
Opinion Committee
jst
p. 4519