Untitled Texas Attorney General Opinion ( 1963 )

E OWNEY GENERAL
AUSTIN ``.TExas
July 10, 1963
Jerry Sadler Opinion No. C- 106
Commissioner
General Land Office Re: Construction of Senate
Austin, Texas ~111 318, Acts of the
58th Legislature, Regu-
lar Session, relating
to the removal of the
ex officio membership
of the Attorney General
on various State boards
Dear Mr. Sadler: and commissions.
You have requested our opinion on the construction
of Senate Bill 318, Acts of the 58th Legislature, Regular
Session, wherein the Attorney General Is removed from the
School Land Board as an ex officio member. Your specific
questions concern the language of Section 5 of the Act where-
in it states that paragraph 5 of Section 5 of page 465, Acts
of the 46th Legislature, Regular Session, 1939 (codified as
Article 5421c-3, Vernon's Texas Civil Statutes) Is amended,
in view of the fact that paragraph 5 refers to the meetings
of the School Land Board, whereas paragraph 3 refers to the
membership of the School Land Board. Your specific ques-
tions are as follows:
"(1) Can either School Land Board
officially act after the effective date of
Senate Bill 318?
"(2) If so, which Board has the
authority to act?
"(3) When should the Board meet and
how should it select a secretary that is
authorized to certify as to the official
minutes of the Board?"
The School Land Board was created by the provisions of
Section 5 of House Bill 9, Acts of the 46th Legislature, Regu-
lar Session, 1939, Chapter 3, page 465, at page 475, which
was an Act amending House Bill 358, Acts of the &2nd Leglsla-
ture, Regular Session, 1931, Chapter 271, page 452. Section 5
of the 1939 Act was codified in Vernon's as Article 5421c-3,
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Honorable Jerry Sadler, page 2 (c- 106 )
Vernon’s Civil Statutes. Paragraphs 3, 5 and 6 thereof read
as follows :
”3. There Is hereby created a board
to be known as the School Land Board, and
to be composed of three (3) members, name-
ly: the Commissioner of the General Land
Offic’e, who shall be chairman, the Governor
and the Attorney General.”
“5. The School Land Board shall meet
on the first and third Tuesday of each
month In the General Land Office, where
its sessions shall be held and continued
until its docket Is cleared, subject to
recesses at the discretion of the Board.
The Board shall select a secretary who
shall be nominated by the Commissioner of
the General Land Office and approved by a
majority of the Board. The Commissioner of
the General Land Office Is authorized to em-
ploy other employees which may be necessary
for the discharge of the duties of the Board,
and particularly is authorized to employ a
geologist and mineralogist, who shall keep
Informed with reference to the minerals on
public school lands and all activities under
pending applications and previous leases and
sales, and shall report to the Board all in-
formation obtained with reference thereto.
The employees of the Board shall be deemed
to be employees of the General Land Office,
and all civil and criminal laws regulating
the conduct and relations of the employees
of the General Land Office shall apply In
all things to the employees of the Board.
“6. The School Land Board shall keep
a record of Its proceedings to be called Its
minutes which shall include a docket onvhlch
the secretary shall enter all matters to be
considered by the Board, the minutes and
docket to be subject to Inspection by any
citizen of Texas desiring to make an examl-
nation thereof on payment of such fees as
may be prescribed by law for the examina-
tion of other Land Office records, the
examination to be In all cases In the pres-
ence of the secretary of the Board or some
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Honorable Jerry Sadler, page 3 (C- 106 )
clerk designated for that purpose as pre-
scribed by law. All records _ and _proceedings
. .
of the Board shall be recorcls an5 arcnlves
of the General Land Office."
It is noted by the above quoted provisions that
paragraph 3 of Article 5421c-3, V.C.S. (paragraph 3 of
Section 5 of House Bill 9, Acts of the 46th Legislature,
Regular Session, 1939, Chapter 3) creates the School Land
Board and provides for its membership; whereas, paragraph
5 of Article 5421c-3 provides for the meeting of the School
Land Board, the selection of a secretary and the employ-
ment of other employees.
The title or caption of Senate Bill 318, Acts of
the 58th Legislature, Regular Session, reads as follows:
"AN ACT removing the Attorney General from the
Board f L f Eleemosynary and State
Memoria?La%iT ihe Boards for Lease of
Lands owned by-state agencies, Boards or
agencies of the State of Texas, the Board
for Lease of Texas Prison Lands, the Board
for Lease of State Parks Lands, the School
Land Board, 'the Board to sell judgments
hi h cannot be collected, the State De-
zository Board the State Tax Board, the
Executive Committee of the Texas Traffic
Safety Council, the State Board of Trustees
for the Employee's Retirement System of
Texas, the State,Banking Board, the State
Board of Canvassers, the Council to expend
certain license fees and hunting-boat regls-
tration fees and certain fines, the Study
Committee to study the development of cer-
tain Texas beaches; providing for member-
ship on said Boards or other agencies In
lieu of the Attorney General; providing
for the expenses of citizen members re-
placing the Attorney General on said
Boards or agencies; amending Article 120
of Subchapter 8 of Chapter 492, Acts of
the 52nd Legislature, Regular Session, 1951,
relating to the opening and counting of cer-
tain election returns by the Secretary of
State in the presence of the Governor or
Attorney General, by substituting in the
place of the Attorney General, a citizen
of the state to be appointed by the Gover-
nor with the advice and consent of the
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Honorable Jerry Sadler, page 4 (C-106 )
Senate who shall serve for a term of
two (2j years; amending Article 4412 of
the Revised Civil Statutes of Texas, 1925,
by requiring designated assistant attorneys
general to attend meetings of these Boards
or Commissions upon which the Attorney Gene-
ral formerly served as an ex officio'member
as of the effective date of this Act; pro-
viding for severability; and declaring an
emergency." (Emphasis added)
The emergency clause of Senate Bill 318, Acts of
the 58th Legislature, Regular Session, the same being
Section 20, reads as follows:
"Sec. 20. The fact that the primary
function of the Attorney General is to rep-
resent the state in all matters where legal
advice or judicial proceedings may be re-
quired, and the fact that his ex officio
duties curtail his availablllty to act as
counsel to these Boards and in many Instances
place him in the position of making a par-
ticular decision as an ex officio member and
then subsequently having to defend such action
in court create an emergency and an imperative
public necessity that the Constitutional Rule
requiring bills to be read on three several
days in each House be suspended, and said Rule
Is hereby suspended; and that this Act shall
take effect and be in force from and after
its passage, and it is so enacted."
A study of the title and emergency clause discloses
that It was the Intent of the Legislature to remove the ex
officio membership of the Attorney General from various State
boards and commissions, including the ex officio membership
on the School Land Board. Furthermore, the title limits the
provisions of Senate Bill 318 to the removal of the ex officio
membership of the Attorney General on various State boards
and commissions, and provisions necessarily germane thereto.
Section 35 of Article III of the Constitution of Texas; Board
of Water Engineers v. City of San Antonio, 155 Tex. lll,T
. . 722 (1955).
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Honorable Jerry Sadler, page 5 (C-106 )
Thus, while the title authorizes an amendment to
paragraph 3 of Article 5421c-3, it does not authorize an
amendment to paragraph 5 of Article 5421c-3, V.C.S., nor
does it authorize the creation of an additional School
Land Board. Furthermore, a reading of all the provisions
of Senate Bill 318 reveals that it was the intention of
the Legislature to amend paragraph 3 rather than paragraph
5.
Section 5 of Senate Bill 318, Acts of the 58th Legls-
lature, Regular Session, reads as follows:
"Sec. 5. Para a h 5 of Section 5 of
page 465, Acts ?-#&kth
o Legislature
lar Session, 1939 (codified as Article'5%%3
of Vernon's Texas Civil Statutes) is amended
to read as follows:
11t5 There Is hereby created a Board to
be know?i'as the School LandsBoard, and to be
composed of three (3) members, namely: the
Commissioner of the General Land Office, who
shall be chairman, the Governor and one (1)
citizen of the state, appointed by the Attor-
ney General with the advice and consent of
the Senate, who shall serve for a term of two
(2) years.'" (Emphasis added)
In Second Injury Fund v. Keaton, 162 Tex. 250, 345
S.W.2d 711 (lpbl), it is stated:
"The intention of the legislature In
enacting the statute must be ascertained
from the language of the statute itself.
When that intention has been ascertained
by the court, It is our duty to enforce
such Intent. . . ."
In Patterson v. City of Dallas 355 S.W.2d 838, 844
(Tex.Clv.App. lpb2 , error ref. n.r.e. I the Court stated:
II
It is a fundamental rule of statu-
tory c&it&ti .on that words or phrases In a
statute may be supplied, omitted or transpos-
ed In order to arrive at legislative Intent
and an Interpretation should not be adopted
that would thwart the legislative intent or
lead to absurdity, injustice, or uncertainty
if such construction can reasonably be avold-
ed. Rogers v. Dallas Ry. & Terminal Co., Tex.
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Honorable Jerry Sadler, page 6 (C-106 )
Clv.A~p., 214 S.W.2d 160, affm. 147 Tex. 617,
. 218 S.W.2d 456; Hargrave v. Texas & P.Ry.Co.~
(Tex.Com.App.), 12 S.W.2d 1009; Tone v. City
of Denison (Tex.Civ.App.), 140 S.W. 11.89;Roby
v. Hawthorne (Tex.Clv.App.), 84 S.W.2d 1108."
Likewise, in Wood v. State, 133 Tex. 110, 126 S.W.
2d 4, 7 (1939), it is stated:
"It is the settled law that statutes
should be construed so as to carry out
the legislative intent, and when such intent
Is once ascertained, it should be given ef-
fect, even though the literal meaning of
the words used therein is not followed.
Also, statutes should never be given a con-
struction that leads to uncertainty, in-
justice, or confusion, if it Is possible
to construe them otherwise. 39 Tex.Jur.,
p. 176,,et seq., and authorities there cited.
. . .
In 39 Tex. Jur., 186, Statutes, Sec. 98, it is
stated:
I,. . . obvious errors or mistakes of a
clerical, grammatical or typographical nature
may be disregarded. Thus an Incorrect reference
in an amendatory statute, to the act or section
amended, may be disregarded where the clear ln-
tent of the Legislature was to amend another
act or section." See also the cases there cited:
Cernock v. Colorado County, 48 S.W.2d 470 (Tex.
civ.App. 1932) quoting 25 Ruling Case Law, Sec.
157, p. 705; &ass v. Darrouzett Ind.School Dlst.,
277 S.W. 751 (Tex.Civ.App. 1 25, error dism.);
State v. Gunter, 81 S.W. 102 2 (Tex.Civ.App. 1904
error ref.)
In view of the foregoing, you are advised that It Is
our opi .nion that the phrase "Paragraph 5” contained in Sec-
tlon 5 of Senate Bill 318, Acts of the 58th Legislature,
Regular Session, refers to paragraph 3 of Article 5421c-3,
Vernon's Civil Statutes, rather than paragraph 5 thereof.
It follows that paragraph 5 of Section 5 of House Bill 9,
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Honorable Jerry Sadler, page 7. (C-106 )
Acts of the 46th Legislature Regular Session, 1939,
Chapter 3, page 465 at page 475, remains unchanged and
is not affected by the provisions of Senate Bill 318.
Answering your questions categorically, the School
Land Board, created by the provisions of House Bill 9, Acts
of the 46th Legislature, Regular Session, Chapter 3, page 465,
as amended by Senate Bill 318, Acts of the 58th Legislature,
has the authority to officially act after the effective date
of Senate Bill 318. Such Board should meet as provided In
paragraph 5 of Section 5 of House Bill 9, Acts of the 46th
Legislature, Regular Session, codified In Vernon's as para-
graph 5 of Article 5421c-3, and the School Land Board Is
authorized to select a secretary as provided for therein.
The secretary of the School Land Board shall keep a record
of the proceedings to be called its minutes, which shall
Include a docket onvhich the secretary shall enter all
matters to be considered bv the Board. Article 5421c-3, para-
graph 6, V.C.S.
”
SUMMARY
Senate Bill 318, Acts of the 58th Legislature,
Regular Session, removes the ex officio member-
ship of the Attorney General from the School
Land Board. Section 5 of Senate Bill 318
amends paragraph 3 of Section 5 of House Bill
9, Acts of the 46th Legislature, Regular Ses-
sion, Chapter 3, codified In Vernon's as para-
graph 3 of Article 5421c-3, Vernon's Civil
Statutes, rather than paragraph 5 of Article
5421c-1 of Vernon's Civil Statutes, Paragraphs
5 and 6 of Article 5421c-3 remain unchanged.
Yours very truly,
WAGGONER CARR
Attorney General
JR:ms:zt
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.
Honorable Jerry Sadler, page 8 (c-106 )
APPROVED:
OPINION COMMITPEE
W. V. Geppert, Chairman
Pat Bailey
W. 0. Shultz
V. F. Taylor
Mary K. Wall
APPROVEDFOR THE!ATTORNEY
GENERAL
BY: Stanton Stone
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