Untitled Texas Attorney General Opinion ( 1971 )

ME ENERAI,
Honorable Cecil M. Pruett Opinion No. ,M-937
County Attorney
Hutchinson County Courthouse Re: Several questions relating to con-
630 North Deahl struction of S. B. 885, Acts 62nd
Borger, Texas 79007 Legislature, R. S. , 1971, amend-
ing Article 3268, Vernon’s Civil
Statutes, relating to eminent do-
Dear Mr. Pruett: main proceedings.
In response to your request for an opinion concerning the construction
of S. B. 885 and its application to the statutory provisions regulating the de-
posit of security pending the appeal of a condemnation case, your questions
are restated and answered as follows:
1. Is the deposit provided for in Section 2 of Article
3268*, before the amendment, to be held, together
with the award, itself exclusively to secure all
damages that may be adjudged against the plaintiff
and therefore a portion of the deposit of money pro-
vided for in Article 1, Section 17 of the Constitution?
2. Is the further sum of money provided for in Section
2-a of Article 3268, as amended by S. B. 885, a por-
tion of the deposit of money provided for in Article 1,
Section 17 of the Constitution?
It is our opinion that the deposit of the amount of the Commissioners’
Award is sufficient to satisfy the Constitutional requirement of the deposit of
* All references to Articles are to Vernon’s Civil Statutes, unless otherwise
indicated. Section 1 of Article 3268 provides for a deposit of money subject
to the order of the condemnee in compliance with the constitutional requirement
of a monetary deposit, and this section is not affected in the question posed.
-4565-
Honorable Cecil M. Pruett, page 2 (M-937)
money provided for in Article 1, Section 17 of the Texas Constitution and that
any additional deposits that may be required are not required to be in money.
Section 2, S. B. 885, supra.
The Texas Supreme Court in 1888 by way of dicta indicated that when
the condemnor pays into the court the amount of the Commissioners’ Award
the Constitution has been satisfied. Ackerman v. Huff, 9 S.W. 236 (Tex. Sup.
1888.)
Legislative enactments are presumed to be valid and doubts about
their constitutionality should always be resolved in favor of constitutionality.
Duncan v. Gabler, 215 S.W.2d 155 (Tex. Sup. 1948) and Imperial Irr. Co. v.
Jayne, 104 Tex. 395, 138S.W. 575(TexSup. 1911.)
Another rule of construction is that constitutional provisions are to be
construed in the light of the conditions existing at the time of the adoption.
Travelers’ Ins. Co. v. Marshall, 76 S.W.2d 1007 (TextSup. 1934); Cramer
v. Sheppard, 167 S.W.2d 147 (Tex. Sup. 1942. )
Article 1, Section 17 of the Texas Constitution was adopted in its
present form in 1876.
“No person’s property shall be taken, damaged, or
destroyed for or applied to public use without adequate
compensation being made, unless by the consent of such
persons; and when taken, except for the use of the State,
such compensation shall be first made, or secured by a
deposit of money. ‘I
Original Article 3268, Section 2, with the provision that an additional
amount “equal to the amount of the damages awarded by the Commissioners’
shall be deposited with the court, was not adopted until 1930.
The Texas Supreme Court decision in Jones v. Ross, 173 S.W.2d
1022, 1024 (Tex. Sup. 1943) is directly in point.
The Supreme Court stated:
“It is the settled law of this State that the provisions of
our State Constitution mean what they meant when they were
-4566-
Honorable Cecil M. Pruett, page 3 (M-937)
promulgated and adopted, and their meaning is not different
at any subsequent time. Constitutional provisions must be
construed in the light of conditions existing at the time of a-
doption, and it does not lie within the power of the legislature
to change their meaning, or to enact laws in conflict therewith.
(Citing Travelers’ and Cramer) . . . They therefore cannot
affect such cases one way or the other. ” (Emphasis added. )
It therefore follows that neither Article 3268, Section 2, nor its
amendment by S. B. 885 being enacted subsequent to the promulgation and
adoption of Article 1, Section 17, would have any effect upon the constitu-
tional provision of deposit of money.
Our opinion is further substantiated from a review of the legislative
history of Article 3268 and its predecessor, Article 4471. See Thomas v.
Housing Authority of Dallas, 264 S.W.2d 93 (Tex. Sup. 1953); Davidson v.
Texas & N. 0. R. Co., 67 S.W. 1093 (Tex. Civ. App. 1902, no writ. )
3. Does the Constitution permit the Legislature to pro-
vide that a bond be deposited in lieu of the deposit of
money as set out in Section 2-b of Article 3268, as
amended by S. B. 885?
It is our opinion that since the additional deposit required by Section
2 of Article 3268, as amended by S. B. 885, does not need to be in money to
satisfy Article 1, Section 17 of the Texas Constitution, it is within the power
of the Legislature to provide that a bond may be substituted in lieu of a mone’y
deposit to satisfy the requirements of Article 3268, Section 2.
The Legislature in enacting eminent domain legislation may not in any
manner lessen t+ absolute obligation of the condemning authority to compen-
sate the owner “in money. ” Buffalo Bayou, Brazes & Colorado Railroad Co.
v. Ferris, 26 Tex. 588, 589; City of San Antonio v. Astoria, 67 S.W.2d 321,
322, aff. 96 S.W.Zd 783 (Tex.Comm.App. 1936), reh. den. 97 S.W.2d944.
4. Does the Constitution permit the Legislature to provide
that the deposit of money as set out in the Constitution,
may be satisfied in part by a deposit of money and in part
by a bond?
-4567-
Honorable Cecil M. Pruett, page 4 (M-937)
As we have previously stated, only the amount of the Commissioners’
Award is necessary to satisfy the Constitutional requirement of deposit of
w, and therefore, any additional deposits enacted by the Legislature may
take whatever form they decide upon.
It does not, however, follow that additional legislative protection for
condemnees must also meet this constitutional requirement of “in money. ”
City of San Antonio v. Astoria, supra; Buffalo Bayou, Brazes & Colorado
Railroad Co. v. Ferris, supra.
5. May the plaintiff, at this time exercise an election to
substitute the bond provided for in Section 2-b of Ar-
ticle 3268, as amended by S. B. 885, and withdraw the
money deposited?
It is our opinion that Article 3268, Section 2, as amended, must be
interpreted as providing those condemning authorities which have previously
deposited an additional amount of money equal to the Commissioners’ Award
under Section 2 of Article 3268, before amended, an opportunity to make the
election contemplated in S. B. 885.
The Supreme Court in Deacon v. City of Euless, 405 S.W.2d 58 (Tex.
Sup. 1966) stated that in determining whether a statute is to be applied retro-
spectively, the legislative intent is controlling.
The Supreme Court in Martin v. Sheppard, 102 S.W.2d 1036 (Tex.
Sup. 1937) decided that in construing a statute the entirety of the Act should
be considered in ascertaining the intent of the Legislature, including the
emergency clause.
Section 3 of S. B. 885, the Emergency Clause, reads in part:
‘1. . . and that this Act shall take effect and be in
force for all causes now pendingor subsequently filed
after the date of its passage, . . . ” (Emphasis added. )
The word “pending” means “undecided” or “undisposed of. ” Hutchens
v. Dresser, 196 S.W. 969, 971 (Tex. Civ.App. 1917, error dism.)
-4568-
Honorable Cecil M. Pruett, page 5 (M-937)
The decision in the case of Texas Midland R. R. v. Southwestern
Telegraph & Telephone Co., 58 S.W. 152, 153 (Tex.Civ.App. 1900, no
writ), is directly in point.
The court concluded:
1,
that the statute applied to condemnation pro-
. . .
ceedings pending at the time it went into effect, and that
the telephone company was entitled to the benefits of the
same. ”
We will now consider and answer together your sixth and ninth
questions.
6. Does this amendment of the Eminent Domain Statutes
supercede the provisions contained in the County De-
pository Law in reference to the deposit of Trust Funds
so that the plaintiff may require the deposit made under
Section 2-a of Article 3268 as amended, be deposited
in a bank which is not the County Depository for Trust
Funds?
9. Does such provision in Section 2b of Article 3268, as
amended by S. B. 885, supercede the provision contained
in the County Depository Law in reference to Trust Funds
so that the interest on these funds should be paid to the
plaintiff rather than to the County?
Article 3268, as amended by S. B. 885, supercedes by implication
those subsections of Article 2558-2 applicable to Article 3268.
The Supreme Court of Texas has consistently held that a new en-
actment will by implication repeal existing enactments if there is a clear
and manifestly indicated conflict. See, for example, State v. Easley, 404
S.W.2d 296, 300 (Tex. Sup. 1966. )
Whether or not there is conflict depends upon the legislative intent ac-
cording to an early.SupremeCourt decision in St. Louis S. W. Ry. Co. v. Kay,
85 Tex. 558, 22 S.W. 665, 666 (Tex.Sup. 1893.)
-4569-
HonorableCecil M. Pruett, page 6 (M-937)
The intent of the Legislature in enacting S. B. 885 is clear.
“The fact that there are many plaintiffs involved
in condemnation cases now pending in the courts of this
State who have been compelled under existing law to
dedicate large sums of working capital to such litigation
prior to taking possession of properties, together with
high interest rates now existing, create an emergency
. . 1,
Thus, the legislative intent of S. B. 885 would necessarily by im-
plication repeal the application of Section 9 of Article 2558-a to the deposit
of funds under Article 3268.
The language of S. B. 885, page 2, makes it quite clear when it
specifies that:
‘1. . . The interest accruing from such account, cer-
tificate or security, if any, shall be paid to the plaintiff. ”
It therefore would also necessarily repeal by implication that portion of Section
4a of Article 2558-a applicable to Article 3268, which specifies that the interest
earned shall go the county.
7. Should the plaintiff require the funds to be placed in
a bank which is not the County Depository of Trust
Funds, may the Court require such bank to provide
a bond, or enter into a pledge contract, similar to
that required of a County Depository to protect the
funds, before the funds are delivered to such bank?
There is no statutory authority in S. B. 885 nor in Article 2558-a di-
recting the Court to require a bond from a bank selected by the condemnor as
a depository for the deposit as required in Article 3268, Section 2.
Nor can any legislative intent be gleaned from S. B. 885 directing the
Court to require “such bank to provide a bond, or enter into a pledge contract,
similar to that required of a County Depository to protect the funds, before the
funds are delivered to such bank. ”
-4570-
Honorable Cecil M. Pruett, page 7 (M-937)
The nonexistence of this intent can be inferred from the fact that
S. B. 885 contains no provisions relating to a court requiring such bank to
deposit a bond or provide a pledge. Red River Nat. Bank v. Ferguson, 109
Tex. 287, 206 S.W. 923 (Tex.Sup. 1918); Oden v. Gates, 119 Tex. 76, 24
S.W.2d 381 (Tex. Comm. App. 1930); Freels v. Walker, 120 Tex. 291, 26
S.W.2d 627 (Tex. Comm. App. 1930), reh. denied; Magnolia Petr. Co. v
Walker, 125 Tex. 430, 83 S.W.2d 929 (TexSup. 1935. )
8. In the event the Court and Clerk is required by the
plaintiff to place the funds in a bank other than the
County Depository for Trust Funds, and there is a
loss because of bank failure, who should sustain the
loss: A, The Plaintiff; B, The Defendant; C, The
Clerk; D, The Court; or E, The County?
In the event that there is a bank failure the condemnor should sustain
any loss. Texarkana & Ft. S. Ry. Co. v. Brinkman, 288 S.W. 852 (Tex.Civ.
App. 1926), affirmed in 292 S.W. 860 (Tex. Comm. App. 1927) and City of
San Antonio v. Astoria, supra.
Under the provisions of Article 3268, Section 2, as amended, the
Court, the Clerk and the County are nothing more than conduits between the
condemnor and the bank. The condemnee never has any right to the money
nor does he exercise any control over the deposit. On the other hand, the
condemnor selects the bank and is entitled to all interest earned by the depos,it.
It would be only just that should there be any loss, the condemnor should bear
it.
SUMMARY
Senate Bill 885, Acts 62nd Legislature, R. S., 1971,
as it amends Article 3268, V. C. S. , does not violate the
constitutional requirement of deposit of money of Article
1, Section 17 of the Texas Constitution. Further, it is our
opinion that it was the intent of the Legislature in enacting
S. B. 885 to provide condemners the full benefits thereunder
at any stage of the litigation process short of a final ad-
judication. Additionally, S. B. 885 repeals those sections
-4571-
Honorable Cecil M. Pruett, page 8 (M-937)
of Article 2558-a, V. C. S. , in their application to
Article 3268, V. C. S. , as amended. Finally, should
there be a bank failure involving a deposit under Ar-
ticle 3268, the condemnor would bear the loss.
Prepared by Ronald Edwin Tigner
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
W. E. Allen, Co-Chairman
W. 0. Shultz
R. V. Smith
Jerry Roberts
Sam McDaniel
MEADE F. GRIFFIN
Staff Legal Assistant
ALFRED WALKER
Executive Assistant
NOLA WHITE
First Assistant
-4572-