Untitled Texas Attorney General Opinion ( 1961 )

Honorable Robert S. Calvert
Comptroller af Public Accounts
Capitol Station
Austin, Texas
Opinion No. WW-1117
Re: Constitutionality of Section
4 of Article 6243e, Vernon's
Dear Mr. Calvert: Civil Statutes.
You have requested an opinion on the following ques-
tions:
"1. Is the provisions of Section 4 of
the Firemen's Pension Commission Act
Bection 4 of Article 6243e, V.C.SJ
still valid. Should you answer ques-
tion No. 1 :n the affirmative then
answer No. 2..
"2. Is the Comptroller required to set out
in a separate appropriation $5C,OOO.O0
of the $300,000.00 appropriated for each
year of the biennium."
Section 4 of Article 6243e prcvides as follows:
"The State Treasurer shall, not later than
the first day of May of each year after this
Act takes effecf, apportion and pay over to the
various Boards of Trustees, upon a pro rata ratio
basis of the insurance written upon property
within the corporate limits of such city or town,
all moneys coming into his hands annually from
the gross premium receipts tax herein provided;
save and except, the sum of Fifty Thousand Dol-
lars ($50,000) less expenses of administration
as herein provided, the balance of which shall
be kept and retained by the State Treasurer in
the said Firemen's Relief and Retirement Fund
Honorable Robert S. Calvert, page 2 (WW-1117)
as an emergency reserve fund for the pur-
pose herein provided."
The gross premium receipts tax referred to in Sec-
tion 4 was held unconstitutional in American Alliance Ins.
co. v. Board of Insurance Commissioners, 126 S.W.2d 741
‘(Civ.App.1939, error ref.). Since the "gross premium
receipts tax" from which payment by the Treasurer was to
be made to the various Boards of Trustees was held uncon-
stitutional, such provisions can have no force and effect
and, therefore, the provisions of Section 4 of Article 6243e,
Vernon's Civil Statutes, are void and unenforceable. American
Alliance Ins. Co. v. Board of Insurance Commissioners, supra.
In other words, the provisions of Section 4 are incapable of
being severed from the provisions of Section 2, which were
held unconstitutional in American Alliance Ins. Co. v. Board
of Insurance Commissioners, supra.
SUMMARY
Section 4 of Article 6243e, Vernon's
Civil Statutes, providing for an ap-
portionment from the gross premium
receipts tax (held invalid in 1939) is
void and unenforceable, since its pro-
visions are incapable of being severed
from the invalid portions of the Act.
Yours very truly,
WILL WILSON
Attorney General of Texas
.-.,
By&d& /jj
JR:ms J John Reeves
Assistant
.
Honorable Robert S. Calvert, page 3 (WW-1117)
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Elmer McVey
Morgan Nesbitt
Bob Eric Shannon
Thomas Burrus
REVIEWED FOR THE ATTORNEY GENERAL
By: Houghton Brownlee, Jr.