Untitled Texas Attorney General Opinion ( 1947 )

PRICE DANIEL’ :~ fmust 8, .igW
-InmY GENERAL
_,.
Hon. !i?oiiA..Graven
:' 0~ini.0.g ~0~.V-332
County Audit.or
McLennan County I I&:_ donstitutiona~ityof
Waoo,vTexas H. B. ~6831,!jOthLeg+-
lature, relative to
.+al.srIes of assistant
district attor?eys.
Dear Sir:
:X0& request f0G.A op.&ii, from~this of-
fice on the abo.ve:.subject
mattepiIs as fo1low.s:
‘. %he W.strict~Judgesi@i Con.m+saIon-
ers Court..ofMcLennax,Couuty.hav&approved,
appointments,sndset salpies of asaWx4nt
distribt attornegs.&naccordancewIt.hthe
provisions of ,Eou``~BIll#683 of the.~sO$h
Legisliiture. I shall t@ank you to advise
n!e.asto.the.coqstitntI~nalIty,~ofthis law',
,.
"~.I&&:,&r&d.b~ me to the:%&-,
trict Attomxe$ of this county Concixq...
this question brought-the reply that.he. _...
would.prob&bly.beilIsq~llf~& to.pad on .-
the :@e.&Ioq by.r@dn"of the f&t ythatit...
Involves his office and he,asked that.,I..ad-
d3iessny Inquiry directly to'you."
.,_.’ .-Hi B;.683; Acts~OP .the50$h.'Legislature,~
p.
364, Veruou.'s‘TexasSession Law $!ervIce,reads Ih part
a3 follows; ..:... ..:: .
.: -.:
.~. '~.~Sect.~&
1.' 'rJlat.from.,tid
after t&6 .'
: pa&age of this Act, In a Judicial Dititirict~.I ``-.
comp~sed.,ofone,or more cow+tIes and:Iti`` .'..
which the population In auy one of saI&
oounties.,as determ@ed @y..theladpreced-
,btg Federal Census,-18not le.ss$he+ seventy
thousaW (7O,OOO)..and not more than two~,hun-
dred and twenty thousand (220,000)inhabl-
tax&s, and In.wh$ch,county~there exe two (2)
or more District Courts the District Attdrney
.,orthe Criminal District Attorney, with the
oonsent of the Combined majority of the Dis-
trict Judges and CommissionersCourt of such
172 Hon. Tom A. Craven - Page 2 (V-332)
county, Is hereby authorizedto appoint
at their dIscr&Ion, not more than six (6)
Investigatorsor assistantswho shall re-
ceive a salary of not more than Three Thous-
and, Seven Hundred and Fifty Dollars ($3,750)
per annum, nor'letisthan Three Thousand Dal-
lars ($3,000)per anuum, the amount of such
salary to'be fixed by the District Attorney
or Criminal District Attorney end approved by
a majority of the District Judges; such In-
vestigatorsor assistants,&s well as the
DIstrI&t Attorney or Criminal District Attor-
ney shall be allowed a reasonable amount for
expenses not to exceed SIX Hundred Dollars
MOO), each, per ennum. . . .
"Sec. 2. Said District Attorney and
CrImIualDistrict Attorney shall also be au-
thorized to appoint a stenographer.. .
"Sec. 3. The salary of such InvestIga-
tore OF assistantsand stenographer,and the
expenses provided for In this Act shall be
paid monthly by the CommissionersCourt of
such'oountg.outof the General Fund of t@e
oounty:or,.a$ the discretl6n of the Catis-
sion&w Court, out of the Jury Fuud of.saId
county; said Investigatorsor assistants may
be.requIredto give bond and shall halieau-
thopilty-tiderthe airection'ofthe,DIst&$ct,~
Attorhey iX?'CrGiInal'DIst~Ict Attorn@ to
make'arrests and execute process ‘In drIn&nal
cagersand -inoabes growing out of the eti-
forcement of all laws."
Generally,the bill meets the constitutional
reqnirementsof being limited to .onesubject which Is
expressed In Its title, and of being sufficientlycer-
~talnand definite In Its terms. !Be bill, howeveri-1s.
what is commonly referred to as a "bracket bill." 'We-'
assume, therefore, that your specific @estIon Is wheth-
er this bill violates Artlola III; Section 56, of the
Texas Constitutionwhich reads In.part as follows:
"The Legislatureshall not, except as
otherwise.provIdedIn this Constitutioti,pass
any local or special law, . . .
"R~gulating'the'
affairs of coun$ies.....%
Hon. Tom A. Craven - Page 3 (v-332) " :f '~.``~' ..',f~'``J
,"Creatingoffices, or ~pres'cribing
the "
power2 and duties of officers, in ooiuities
. . .
Ii.B. 683, Acts of the 50th Legislature, is
.,'..~,applioableto the following judicial districts:
.I:':19th,28th,,30th, 34th, 41st, 53rd, 5&th, 56th, 5kFF'
60th, 74th, 78th, 89th, 92nd, 93rd, 94th, 98th,'103&~
107th, 117th and 126th. It affects the following coun-
ties: Cameron, being within the 103rd and 107th judi-
cial districts: El Paso, being withinthe 34thj 41st
and 65th judicial districts; Galveston, beingwithin
the 'lOth'snd:56thjudicial districts; HIdalgo/being
within the 92nd and 93rd judicial districts; Jefferson,
being within the 58th and~60th judicial distriots; Mc-
Lennan, being within then19th, 54th and 74th judicial
districts; Nueces, beingwithinthe 28th,.,
94th and 117th
judicial districts; Travis, beingwIthin the 53rd, 98th
and 126th judicial districts; Wichita, being within the
3Oth, 78th and 89th judicial districts. See Article
199, v,.,c.s.
,,
It is apparent that .H. B. 683; Acts of~the 50th
Legislature, falls ,wIthin the classification of ,a local,
or special law and would be Invalid if it is governed by
the quoted provisions of Article III, SectIon.56; of the
Constitution. See Fort ~Worth v. BobbItt;l21.Tex. 14,
36 S.W. (26) 470, 41 S.W. (2d) 228;'Bexar Cou.nty,v.Tynan,
1g8;Tex. '223,97 S.W. (26) ,P&so County,
136 Tex.~'370,~#150 S.W. (26 Wood, 137
Tex. 201, 152 S.W. (26) ,lO
However; it is our opinion that H. B. 683 Is not
governed by Article III, Section 56, ,Texas Constitution,
b&by Article V, .Section 1, which reads as follows:
"The judicial power of this State shall be
vested in one Supreme,Court;in Courts of Civil
Appeals, in a Court .of Criminal Appeals, in~Dis-
trict Courts, in County Courts~,in Commissioners
Courts,,.in CouHs~,of~Justices of the'Peace+.and
in such other courts as may be provided by:law.
"The Criminal District Court of Galveston
and Harris Counties shall continue with the dis-
trict jurisdiction and organization now existing
by law until otherwise provided by 'law.
"The,Legislature may establish 'suchother
co~urtsaspit may deem necessary and prescribe
the jurisdiction~and organization thereof, and
Hon. Tom A. Craven - Page 4 ~(V-332)
may .COnfOrmthe jurisdiction,ofthe District
and other Inferior courts thereto."
Haa'is County v. Croaker, 224 S.W. 792, affirmed
112 Tex. 450, 248 S.W. 652, upheld a statute, special In
character,which fixed the salary of the district attorney
of the orimInal district court of Harris County. We quote
from said ease the following:
"The major Insistence of.plaintlffIn
errorIs that the act of 1911, In so far as
it fixed the compensationof the district at-
torney at a different amount than that allowed
by general laws to distriot attorneys of other
counties of the same class as Harris County,
Is a special and local law, regulating to that
extent the affairs of Harris County, and there-
fore void, because violative of section 56,
art. 3, of the Constitutionof the state. . . .
"It Is unnecessary to Inquire as to wheth-
er or not the act creating the criminal district
court of Harris County Is a local or special.
law. The creation of this.courtrests upon the
express and direct constitutlonalprovisi?on
heretofore quoted; that Is, that portionpf sec-
tion 1 of article 5 which declares that the
criminaldistrict court of ffalves,ton and Herr18
coindies shall oontinue with the,district, juria-
~diotlon,and organicatlonexisting by law, uutil
otherwiseprovided by law.
"The criminal district court of Calveston
and Harris counties then existed with a defined
district and the jurisdictionset forth by stat-
ute, and the orgsnizatlonconsisted of the dis-
trict judge, the district attorney, and the dis-
trict clerk. This constitutionalprovision ex-
pressly continued the existenoe of that court
and that organisation,until It was changed by
law, and by language, which admits of no other
Interpretation,authorized the Legislature to
change the~di;trIct,the jurisdiction,and the
organization.
we quote the following from Garvey v. Matthews,
79 s.w. (28) 335, error refused:
!'me act creating the court having been ex-
pressly authorizedby the ConStitUtiOml Pro-
visions last referred to, It Is uMecesserY to
Eon. Tom A. Craven - .P+ge 5 in;(V-332),,~: :, :.. ..,~.’
consider whether~,theit;:act,was.looal..or
.
special in character.within.the'oontem-
plation of article 3; SS.56 and 57,'df..
'r
the Constitution. '~Ha??Pis
:county'vi
Crooker, 112 Texi 450, 2:48,
'S.W.652. "
"The powerrof~thel&slat& to.fix
the -salary'of:thejudge,.&this county.:i::
cqurt at law'.is~an incident.toj'thepower:i:,.
.to.create.the-,c+t,, 'andrestsupon the
s~e..,cons,titutionalsutho,ritg;1:
..Therewas 1~1,:
ample ~posrer
to 'fixthe 'SSlary ~'inl
the:first].
Instance; as ias done bysection ll‘cif'the
Act .of 1927..:By .thesame -token..thereis
the.power to amend :that s,ectiod,:'as.,was;.
_
done by section 1 ofthe Act of 1933 '(Ver-"
._ non's~.Anp.
civ..
,st.arlk.
.J970-01,.Bll)...
:
..c
,paTPlScoul+v. drooker, suprEL.v _., ".~
. _ _.
Jones v. Anderson;' '(Ci+.App.')189 $.W. (id)
.65:,
:-. :error~re~s``,``~phe~d'.th~;special~la~ .sbolishing
,th+office of county attorneysof.,&s@r $+uty for .like
..~,~r.ea:sp~ii.~
:.;,. ::,!:: .. ., :,:.+.:.: -, :.:.,..:.~..
'-,
,.,I,
_:.,I ; : : '.c ,..:
~.
I.pi._,.".:I
:1.
in,..
-;
,~J,ie::
4gt;.,~grsj;a~nre..'e``~ted. H.,B 1&j';,ij&h
pro&ided'-for"ainni&l salaMes;“~payable’moh&~ of'offi-
cial:courtreporters of..ea.ch,~strictpo~t,.civil*or
:cri@nal,, and of each
criminal,at
.~be fixiid&nd .apportibnedlsmqng..the. sffected counties;..by
the respective,j@ges.,of those..courts, but exempt.ed.from
the proqisio.ns.of,the~Act Qe%ar and Tg?rant.: counties.
The.-Court: of:.CivilAppeals in the case.oP Tom Green Coun-
ty:v..Proffltt.,..193;S.W. (2d).,8$5; had .before~.it
.the
question of whether..the. provi,si~ons. of:H..B.'555,;.
.*gth.
Leg;,~Violated~AMicle III,Section 56~,.:of the,.Texasicon-
stitution.&We quote from~said case the follo,wing:~.,..
:
"It may beconceded that under-the~hold-
\.~ -ings in these cases I& B. '555falls within the
.~.
.pla.ssifica,tipn,bf~a,local Or special.lav,.and,
-wouldbe .inva.lia .ifgit.is.governed by~the _:. .,.~.
: : .quoted, provisions of Const. 'Art.III,,, Sec.;56 '.
..,.
... :. . .. j.~
"Whether'ti. B: 555.is properlyciassified
.:as:8 'locai. or special l&W is~ not;. imp+t-+t’, :a
since it. 3.8 not -governedby.Const. Art..III,';"
Sec. 56, but bg,Art. V,:Se.c.,l,~',:...... .., _:'
eon. Tom A. Craven - ~Page6 (V-332)
PYS
%hi``p~ovision has been construed as
authorisinglocal or special laws affecting
the functioningof the different courts
throughoutthe state: . . .
"In so far as H. B. 555 relates to dis-
trict court reporters it deals with state
employees. In so far as it relates to re-
porters of county courts at law it provides
as an incident for the functioningof courts
which the Legislaturecreates under express
authority of Art. V, Sec. 1. . . .
"We hold H. B. 555 valid as against the
urged ground of invalidity, . . .' .-,
.:
In view of the foregoing, it is our opinion
that E.'B. 683 is not governed by Article III, Section ,,~
56 of our State Constitution.. ..1
Section 3 of H. B. 683 provides that the sala- ,'~
ry of the investigatorsor assistants and stenographer
covered by the Act shall be paid out of ~theGeneral Fund :I,
of the county or, '"at the discretion of the Commission- ,:
'BPSCourt, out of.the Jury Fund of said county."
'\
Article VIII, Sections9, of our State Consti-
tution; authorizesthe levy of a tsx "not exceeding fif-
teeny(15) cents to pay jurors;"- In construingArticle
VIII;~Section9, ,theoourts have uniformly held that the
provisionsof this Section of the Constitution nwere de-
signed, not &rely to limit the tax rate for certain
therein designatedpurposes,but to require that any and
allmoney raised by taxation for any such purpose shall
be applied, faithfully,to that particular purpose, as
needed therefor, and not to any other purpose or use
whatsoever." 'Carrollv. ~Williams,202 S.W, 504, 506.
See also Ault v. Hill County, 102 Tex. 335, 116 S.X. 359..
The Jury Fund of the county is a constitutional
fund composed of tax money levied for 'thesole purpose
of paying jurors. The Legislature is therefore prohiblt-
ed by Article VIII, Section 9, from authorizing such tax
levy to be used for any other purpose than "to pay jurors."
Therefore, it is our opinion that the portion of Section
3 of H. B. 683, Acts of the 50th Legislature, authorieing
the Commissioners'Court to pay the salaries of the in-
vestigatorsor assistantsand stenographerout of the Jury
Fund is unconstitutionaland void.
Hon. Tom A. Craven ~7.
Page 7 (V-332) ;1d’/
The Act containsno "separability"or "sav-
ing" 01aUs8. .Hoveverin the case,oftOhristo her v:
City of'El.Paso,(Civ..App.)~98!S;U.(26).39{ it was
held that the unconstitutionalprovision of &ticle
1269h, V.C.:S.,dealing with nuuiicipklairports, which
exempted cities from liability for injuries to per-
sons caused by negligence of.theiroperating agents,
did not render the entire Act.void.,'Wequote the
following from said~case:
"We do not'concur in the.contention
t that the invalidity of .the exemption pro-
vision, inthe absence'of a saving clause,
renders the entire actunconstitutional.
While it is true that the provision is in-
cidental to the main purpose of the act,
.yet It is capable.ofbeing separated from
the act without materially affecting that
main purpose." :.
Since the ,unconstittitional
provision in H. B.
683~i.s'
capable of being separated from the tactwithout
materially affecting the main purp,ose,it Is our opinion
that the remainder of H1 .B. 683'is.constitutionaland
valid.;
SUMMARY
'H. B. 683 (Acts .sOth,Leg.,1947).pro-
vldl~ for compensation.of.,assistant dis-
~ .t.rictattorneys and.stenographersto,the
district attorneyk? y;",'n :&unties, is
.constitutional. c. 1, Constitu-
tion of Texas. The bct'ls notgoverned by
Art. III, Sec. 56,~:prohibiting .theen&t-
ment of special or local laws. Although
.the provision of H. B. 683 authorizing the
Commissioners'Court to.ptiythe salaries
out of the Jtiy Fund iiolates~'ArticleVIII,
Section 9, of the Texas Constitution,the
remainder of the-'&t pro@Llmg .forpayment
out.of the General Fund is valid.
very truly SOUPS
JR:djm '.ATTORREY GERERAL OF TEXAS