Untitled Texas Attorney General Opinion ( 1973 )

THE ATI‘ORNEY GENERAL
OF TexAs
AUIITIN. - 78711
aOBN L. BItaL
August 13, 1973
The Honorable Bevington Reed Opinion No. H-82
The Honorable Joe Resweber
The Honorable George L. Thompson Re: Senate Bill 123
The Honorable David Wade, M. D.
The Honorable Henry Wade
Gentlemen:
The 63rd Legislature adopted Senate Bill 123, sometimes known as
“The l# Year Old Bill”. It will become effective August 27, 1973 and each
of you has asked our opinion as to matters connected with it.
Senate Bill 123; in its entirety, is as follows:
“AN ACT
providing that a person who is at least 18 years of age
has all the rights, privileges, and obligations of a person
who is 21 years of age; containing a provision that a cus-
todian of certain property of a minor may elect not to
have the provisions of this Act apply to such property;
and declaring an emergency.
“BE IT ENACTED BY THE LEGISLATURE
OF THE STATE OF TEXAS:
“Section 1. The purpose of this Act is to extend all
the rights, privileges, and obligations of majority to all
persons who are at least 18 years of age. It shall be
construed liberally to accomplish that purpose.
“Sec. 2. Notwithstanding any statutory or decisional
law, or any rule, regulation, or ordinance of this state or
of any political subdivision or incorporated city or town of
this state, a person who is at least 18 yearsof age has all
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Page 2 (H-82)
the rights, privileges, and obligations of a person who is
21 years of age. A law, rule,regulation, or ordinance
which extends a right, privilege, or obligation to a person
on the basis of a minimum age of 21, 20, or 19 years
shall be interpreted as prescribing a minimum age of
18 years.
“It is specifically provided, however, that with
respect to property held by a custodian under the Texas
Uniform Gifts to Minors Act, as amended (Article 5923-
101, Vermn’s Texas Civil Statutes), on effective date
hereof and the proceeds and reinvestments thereof, the
, , -:’ custodian may elect not .to.have the provisions of this ACt
apply by so notifying the minor in writing, but such election
may be revoked at the election of the custodian.
“Sec. 3. The importance of this legislation and
the crowded condition of the calendars in both houses
create an emergency and an imperative public necessity
that the constitutional role requiring bills to be read on
three several days in each house be suspended, and this
rule is hereby suspended, and that this Act take effect
and be in force from and after its passage, and it is
so enacted. ”
We have been asked, first, whether or not the Bill is constitutional under
Article 3, 5 36 of the Texas Constitution. If we answer in the negative, the
other questions become moot.
Article 3, 5 36 of the Constitution is:
“No law shall be revived or amended by reference
to its title; but in such case the act revived, or the sec-
tion or sections amended, shall be re-enacted and pub-
lished at length. ”
Also to be considered is the effect of Article 3. 5 35 which provides:
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Page 3 (H-82)
“No bill, (except general appropriations bills, which
may embrace the various subjects and accounts, for and
on account of which moneys are appropriated) shall con-
tain more than one subject, which shall be expressed in
its title. But if any subject shall be embraced in an act,
which shall not be expressed in the title, such act shall
be void only as to so much thereof, as shall not be so
expressed. “
The initial inquiry must be whether Senate Bill 123 is an original
act, complete in itself, or an amendatory act. No section or sections
of any other Act are re-enacted or published at length by it, as Article 3,
5 36 commands be done if an act amends other enactments.
In lA, Sutherland Statutory Construction, (4th Ed. 1972) 0 22.01, p. 106
it is said:
“In determining whether an act is original or
amendatory in form the controlling test is whether
itpurports to be independent of existing statutory
provisions. It may, in fact, add new regulations
to fields already extensively regulated by legis-
lation and to that extent amend or supplement them or
it may establish new and inconsistent procedures
which by the doctrine of implied repeal may super-
sede and repeal the existing law, but so long as it is
not specifically identified as an amending or repeal-
ing act it will be treated as an original act and.
courts will not apply constitutional standards for
amendment and repeal to it even though that is the
consequence and effect of the act. ”
We think the foregoing passage well states the law in Texas. See Clark v.
Finley, 54 S.W. 343 (Tex. 1899); Consolidated Underwriters v. Kirby Lumber
co., 267s. W. 703 (Trx. Comm., 1924); Realty Trust Co. v. Lindsey, 105 S.W.
2d 210 (Tex. 1937); Baker v. State, 158 S.W. 998 (Tex. Crim. 1913); Ex parte
Wilson, 213 S.W. 984 (Tex. Crim. 1919); Terre11 v. State, 228 S.W. 240 (Tex.
Crim. 1921); Davis v. State, 246 S.W. 395 (Tex.Crim;. 1922); Southwestern Gas &
Electric Co. v. State, 190 S.W.2d 132 (Tex. Civ.App., Austin, 1945, aff’d.
193 S.W.2d 675); Thompson v. United Gas Corp., 190 S.W.2d 504 (Tex.
Civ. App., Austin, 1945).
p. 372
Page 4 (H-82)
In our opinion, as an original act and not an amendatory act, it is
unnecessary that Senate Bill 123 meet the requirements of Article 3, 5 36.
The purpose of the requirements of $ 35 of Article 3 of the Constitution
is to give notice through the title of the Bill, both to the Legislature and the
people of the State, of the subject of the proposed law and thereby to prevent
the passage of a law on one subject under the guise of a title which expresses
another. Lee v. State, 352 S.W.2d 724 (Tex. 1962); Fletcher v. State,
439 S.W.2d 656 (Tex. 1969); Harris County Fresh Water Supply District .No. 55 v.
Carr, 372 S.W.2d 523 (Tex. 1963); C. Hayman Construction Co. v. American
Indemnity Co., 471 S.W.2d 564 (Tex. 1971); Stun v. State, 208 S.W.2d 633
(Tex. Crim. 1948).
In our opinion the title to Senate Bill 123 is sufficient to give notice of its
purpose and it does meet the requirements of Article 3, $ 35.
Prior to the effective date of the Probate Code in 1956, Article 4104, V. T. C. S.,
provided that: “Females under twenty-one years of age who have never been
married and males under said age are minors. ” This statute was repealed by
adoption of the Probate Code which contained, among its definitions in $ 3, a
definition of minors in 5 3(t) as: ” . . . all persons under twenty-one years of
age who have never been married, except persons under that age whose disabil-
ities of minority have been removed generally, except as to the right to vote,
in accordance with the laws of this State.”
The title to the Probate Code (Acts 1955, 54th Leg., ch. 55) does state
that one of the purposes of the Act is to define the meaning of certain words,
etc. It does not, however, state that it intends to amend all statutes of the
State having to do with minors and minority. Nevertheless, when the question
was raised in Pittman v. Time Securitiqs301 S. W. 2d 521 (Tex. Civ. App., San
Antonio, 1957, no writ hist. ) as to whether $ 3(t) of the Probate Code was an
act of general application or limited to the Code itself, the court said that it
was one of general application and that married males under 21 years of age,
were adults for all purposes, not just for the purpose of the Probate Code. The
decision was reaffirmed and followed in Ward v. Lavy, 314 S.W.2d 381 (Tex. Civ.
APP. 3 Eastland, 1958, no writ) and in Travelers Indemnity Company V. Mattox,
345 S.W.2d 290 (Tex. Civ.App., Texarkana, 1961, err. ref’d., n. r. e. ).
Just as the definition of “minor” contained in 0 3(t) of the Probate Code
was held to provide a definition for all purposes, even though it did not specif-
ically amend any other statute, so too we are of the opinion that Senate Bill
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Page 5 (H-82)
123 does not operate to amend but rather is a general law creating an
additional class of people (18, 19, and 20 year olds) who, without regard
to marriage or judicial removal of disabilities, are entitled to the same
rights, privileges, and obligations previously reserved to those of another
class (persons 21 years of age and over), except as specifically provided
otherwise in Senate Bill 123. Henceforth, 5 3(t) of the Probate Code as
applied by Pittman. supra, and Senate Bill 123 murt be read together
and applied generally in all instances which condition limitations or privi-
leges on the minority or majority status of an individual.
The intent of the 63rd Legislature in making the age of majority 18
is further evidenced in the enactment of Titles 2 and 3 of the Family Code
(Senate Bills 168 and 111 respectively) and the amendments to Title 1 of
the Family Code ( House Bill 103). The Family Code now considers all
persons as children or minors insofar as biological age is concerned if
they are under 18 years old.
Section 404 of the Probate Code pertains to the closing of estates of
decedents and the guardianship of the persons and estates of wards. It
specifically provides in Subsection (b)l that the guardianship of a minor
shall be settled and clored when he dies or becomes an adult by becoming
21 years of age or by removal of disabilities of minority or by marriage.
Senate Bill 123 effects the removal of disabilities of minority of those
18 years of age or older. After its effective date, when a person becomes
18 years of age, by the specific terms of $404 of the Probate Code, his
estate shall be settled and closed. There is no conflict.
Senate Bill 123 does not require that “21 years of age” in these tvo
sections of the Probate Code be replaced by “18 years of age”. It is to be
read with but &es not amend these,two sections.
Mr. Alton Griffin has posed questions concerning the effect of the
Bill upon the Jury Wheel Law, Article 2094, Vernon’s Texas Civil Statutes.
Article 2133 as amended in 1969 (Acts 1969, 61st Leg., p. 1364, ch. 412)
provides that “all persons both male and female over twenty-one (21) years
of age are competent jurors. unless disqualified under some provisions
of this chapter . . . . ‘I This, in our opinion, extends a right, privilege
or obligation to a person 21 years of age, and uder the specific provisions
of Senate Bill 123, persons 18 years of age or older will be, therefore,
p. 374
Page 6 (U-82)
qualified jurors. Article 2094 ae amended in 1971 provides that between
the firrt and fifteenth days of August of each year the jury wheel shall
be reconstituted “using ahe ale ad mandatory source, all names on
the voter registration lists from all precincts in the county.”
In our opinion the names of all r:egistered voters, including 18 year
olds and those older, should be included in re,constituting the jury wheel
this year. If called to serve before Senate Bill 123 becomes effective,
those under 21 years should be excused from jury duty. Attorney General
Opinion M-911 (1971) is overruled; the law has changed.
Dr. Wade has asked:
“In what respect, if any, will the provisions of
Senate Bill 123. 63rd Legislature, affect the liability
of parents under the provisions of Section 21, Article
3871b? ”
The section cited (amended in 1967 ) provides, in part:
“(a) The parents of a mentally retarded person
under twenty-one years of age who is a student in a
state school operated by the Texas Department of
Mental Health and Mental Retardation shall pay, if
able to do so, such portions of the cost and support
and maintenance of the mentally retarded person ar
may be applicable under the following formula:
[dependent upon net taxable income] . . . .
‘l(b) Parents of a mentally retarded person
who is twenty-one years of age or older shall not
be required to pay for his support and maintenance
in a state school as a student, but the mentally re-
tarded person and his estate shall be liable for his
support and maintenance regardless of his age . . . .”
. . .
“Unpaid charges for support and maintenance
accruing after the effective date of this amendment
due by parents for the support and maintenance of
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Page 7 (H-82)
mentally retarded persons who are minors and stu-
dents in state schools shall be a claim in favor of the
state for such support and maintenance, but only to
the following extent: . . .
“After a mentally retarded person who is a
student in a state school reaches 21 years of age the
cost of his support and maintenance may be deter-
mined under rules and regulations adopted by the
Texas Board of Mental Health and Mental Retardation
provided that charges for support and maintenance
shall not exceed the actual cost of such support and
maintenance and the costs determined under such
rules and regulations shall constitute a claim by the
state against the entire estate or any property of the
mentally retarded person including but not limited
to any share he may have by gift, descent or devise
in his parents’ estates or any other person’s estate. ”
It is obvious from a reading of the statute that the amount by which the
retarded person’s estate can be made liable for his care while at the school
literally depends upon his age. The dividing line is 21 years. When he
reaches that age the obligations of his estate change. Senate Bill 123
operates to charge a person in like circumstances, but who is 18 years old
rather than 21, with the same obligations as the 21 year old.
The liability of persons for the cost of care for incompetents at
State institutions is purely a matter of statute; the common law imposes
no duty upon parents (or upon the estates of incompetents) to reimburse
the State for the cost of caring for incompetent children, under age or
not, at State institutions. See Wiseman v. State, 94 S.W.2d 265 (Tex.
Civ. App. , San Antonio, 1936, writ ref’d. ); State v. Stone, 271 S.W.2d 741
(Tex. Civ. App. , Beaumont, 1954, no writ); State v. Morris, 303 S.W.2d 802
(Tex. Civ. App., Eastland, 1957,wrt r&d). Also see State of California v.
Copus, 309 S.W.2d 227 (Tex. 1958).
In other words, unless Article 3871b, § 21 specifically makes it so,
the liability of parents for the cost of care for their incompetent children
in State institutions does not depend upon the legal infancy of the child.
p. 376
Page 8 (H-82)
Before the statute was amended [Acts 1967, 60th Leg., p.1935, ch. 725
§ 11, it was clear that parents were liable regardless of the age or status
of the child. Section 21 then read (in part):
“The parents, spouse and the estate of a
mentally retarded person . . . shall pay, if able
to do so, for the support, maintenance and treat-
ment of the person . . . . ”
When 5 21 was amended in 1967, a new clause specified that as to
charges accruing after the effective date of the amendment,‘unpaio c~harges
due by parents for the support and mainienance “‘of mentally, retarded.persons
who are minors” would be a claim in favor, of the State only to the. extent they
could be collected from the property or estate of the retarded person.
Unless it were intended that “under 21 years of age”, as used in the
amended statute have the same meaning as “legal infant”, then charges
would be due by a parent for the support and maintenance of a retarded
son or daughter aged 17 years of age who was married (and thus, not a
minor), which charges be a claim in favor of the State
against persons or property other than the property or estate of the in-
competent (the parents). Whereas, if the 17 year old son or daughter had
never been married (a minor), any unpaid charges for his or her care
could be a claim only against the child’s property or estate.
We do not think the Legislature intended to place a more onerous
burden upon the parents of children who have lost their disabilities
because of marriage, or by judicial removal. than on parents of minor
children. We are compelled to think the words “minors” and “persons
under 21 years of age” are used interchangeably in Article 387lb. 5 21
to signify that different treatments are to be accorded parents and their
children, depending upon the legal capacity of the child.
Even before Senate Bill 123 was enacted, therefore, ambiguous
language in Article 3871b, $ 21 required construction. Senate Bill 123 did
not make the construction necessary and does not change it. Without ref-
erence to Senate Bill 123, in our opinion, the words “21 years of age” in
that context have reference to “legal infancy”. Inasmuch as “legal infancy”
will be differently defined after Senate Bill 123 becomes effective, the
effect of Article 3871b, $ 21 will be changed to that extent. In our opinion,
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Page 9 (H-82)
parents of incompetent children 18 years of age or more will have no
obligation to the State for their support while in State schools, and the
cost of their support and maintenance may be determined under rules
and regulations by the Texas Board of Mental Health and Mental Retard-
ation, as provided.
Dr. Reed, Commissioner of the Coordinating Board, Texas College
and University System, has asked for an interpretation of the non-resident
tuition provisions of Subchapter B of Chapter 54.
The tuition for institutions of higher education described by 5 54.&N
of the Education Code is made to depend, in most instances, upon the
residence of the student. Residence, in turn, is governed by the pro-
visions of 5 54.052. The presidential status of individuale under 21 years
of age is made to depend upon the residence of their families, but that of
individuals 21 years of age or older depends upon their own circumstances.
Assuming the constitutionality of a distinction between a person who
has been a resident twelve months and one who has been a resident for
a lesser period d time, it is our opinion that these statutes extend rights
and privileges depending upon a minimum age and that the provisions
of Senate Bill 123 operate to apply the same standards, rights and oblig-
ations to persons at least 18 years of age as are by those sections of the
Education Code applied to persons 21 year8 of age.
Finally, the county attorney of Harris County has asked whether
a county clerk may issue a marriage license to a male eighteen years of
age without parental consent after Senate Bill 123 becomes effective. Sec-
tion 1. 51 of the Family Code, as it presently exists, provides that except
with parental consent, a county clerk will not issue a.marriage license to
a male applicant under 19 years of age or a female applicant under 18.
House Bill 103 of the 63rd Legislature has amended this, effective January 1,
1974, to the effect that the county clerk shall not issue a marriage license
if either applicant is under 18 years of age.
In addition, Article 1. 52 of the Family Code presently provides that if the
male applicant is under 19 years of age the county clerk will issue the license
if parental consent is given. It,too, was anended by House Bill 103 to auth-
orize issuance of a license with parental consent to minors over 16 but under
18 years of age.
p. 378
Page 10 (H-82)
Marriage without parental consent is a right or privilege, and since
here it is presently made contingent upon a minimum age of nineteen, it
is our opinion that Senate Bill 123 would affect the age at which persons
may marry without parental consent.
It is our answer then to Mr. Resweber’s question that the county
clerk may issue a marriage license to :nales 18 years of age without
parental consent after Senate Bill 123 becomes effective.
SUMMARY
Senate Bill 123 is not an amendatory act but is
an original and complete enactment which complies
with all constitutional requirements. It has the
effect of emancipating all persons aged 18 years or
more from disabilities of infancy to the same extent
that other law emancipates older persons; it co-exists
with other emancipatory statutes but is independent
of them. After its effective date, August 27, 1973,
persons who are 18 years old will be adults for all
purposes, save for eligibility to remain beneficiaries
under the Texas Uniform Gifts to Minors Act. All
other inconsistent laws or parts of laws which make
distinctions of legal infancy on a different basis
are repealed by necessary implication.
Very truly yours,
Attorney General of Texas
DAVID M. KENDALL. Chairman
Opinion Committee
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