Untitled Texas Attorney General Opinion ( 1958 )

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March 27, 1958
Honorable Henry Wade Opinion No. WW-403
Criminal District Attorney
Dallas County Re2 Legal authority for
Records Building appointment of Pur-
Dallas, Texas chasing Agent of
Dallas County, Texas.
Dear Mr. Wade:
You have requested the opinion of thla office on the fol-
lowing questions:
"1. What speaific provisions of law now
govern the appointment of the Purchasing Agent of
Dallas County?
"2. What legislative or other action may
be taken to clarify any lack of legal clarity, if
any, In the present laws pert$ining to the appolnt-
ment of the Purchasing Agent?
Seation 11, Senate Bill 283, Acts 54th Legislature, Regu-
lar Session, Chapter 43, page 5 ainendsthe "Dallas County
Road'Law",'which Is House Bill 262, Acts 51st Legislature,,
Regular Session, Chapter 311, page 579. The pertinent amen-
datory portion gf Section 11 providbs:
"The Commissioners! Court of said county
may appoint a 'Purohaslng Agent' for said county,
whose duties, official bond, and compensatio; shall
be fixed by satd Commissioners' Court, . . .
This aot became effective March 29, 1955.
Section 1 of House Bill 452, Acts of 54th Legislature,
Regular Session, Ohapter 302, page 815, provides in part:
"In all oountles of this State having a popu-
lation of one hundred thousand (100,000) br more ln-
habitants according to the last preoedlng Federal
Census, General or Special, a majority of a Board com-
posed of the Judges of the Dlstrlot Courts and the
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Honorable Henry Wade Page.2 (WW-403)
County Judge of such county, may appoint a suitable
person who shall act as the County Purchasing Agent
for such county, . . .'
Section 2 of this act contains the repealer clause which
reads as follows:
"All laws or parts of laws In conflict here-
with are hereby expressly repealed.'
The above statute became effective on September 5, 1955.
Section 1 (a) of House Bill 736, Acts 55th Legislature,
Regular Session, Chapter 185, page 382, provides In part:
"In all counties of this State having a popu-
lation of one hundred thousand (100,000) or more ln-
habitants according to the last preceding Federal
Census, General or Special, a majority of a Board com-
posed of the Judges of the District Courts and the
County Judge of such county, may appoint a suitable
person who shall act as the County Purchasing Agent
for such county, . . .'
Thls statute is set out in Texas Civil Statutes (Vernon's
1948) Article 1580 note. The above quoted Act tracked the
language of House Bill 452, supra, as to method of appoint-
ment of the Purchasing Agent, while altering its provisions
in subsequent language which Is not pertinent to this opinion.
This Act Is a bracket population law providing for the ap-
pointment of a County Purchasing Agent.
Section 56, Article III of the Constitution of Texas, pro-
vides, in part:
"The Legislature shall not, except as
otherwise provided In this Constitution, pass any
local or special law, . . .
"Regulating the affairs of oounf;les,cities,
towns, wards or school districts; . . .
In the case of Miller v. El Paso County, 130 Tex. 370, 150
S.W.2d 1000, the Co,urtstated:
"Notwithstanding the above constitutional
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Honorable Henry Wade Page 3, ,(wW-403)
provision firt. III, Sec. 5@, the courts reaog-'
nize in the Lealslature a rxther broad Power to
make claasifio&ions for legislative purposes and,
to enact laws for the regulation thereof, even
though such ,legislationmay be applloable only to .~
a~partloular class or, ln fact, affedtonly the
inhabitants of a particular locality; but 6uch
legislation must be Intended to apply uniformly
to all who may come within the classification
designated in the Act, and the classification
must be broad enough to include a substantial class
and must be based on characteristics legitimately
distinguishing such class from others with respect
to the public ~pur?ose sought to be aooomplished by
the proposed legislation. In other words, there
must be a substantial reason for the classifi'cation.
. . .
11
. . .
I, .Resort to population brackets for
the purpoie'of alossifying subjects for legislation
is permissible where the spread of population Is
;f;;;;enough to include or segregate a substantial
and where the population bears some real re-
iatlo; to the subject of legislation and affords a
fair basis for the classification. . . .' (Brackets
ours).
This prlnclple of law has been oonsistently recognized by
the Courts and by the Attorneys General of this State. Rod-
riguez v.'.Gonzales,148 Tex. 537, 227 S.W. 26 791 (1950)~
Bexar County v. FE, 128 Tex. 228, 97 S.W.2d 46 (1936)J
Oakley v, Kent,1 l~S..W.;ldglq(Tex. Clv. App., 1944 ; Anderson
1 152 S.W.2d 1084 (1941); Attorney
%iiits :,'I:?% kh61.
It is Important to note that Section 11, Senate Bill 283,
expressly provided for appointment of a'county Pur-
F'
c aslng Agent for Dallas County by the Commissioners' Court
of'such County: whereas, Section 1 of House Bill 452 and
Section 1 (a), House Bill 736, supra, were both enacted sub-
sequent to the passage of the amendment to the Dallas County
Road Law and provided for the appointment of a Purohaslng
Agent in counties of more than one hundred thousand (100,000)
population by the majority of the Judges of the District
Courts and the County Judge sitting as a Board.' Dallas Oounty,
of course, 1s Included within the purview of coverage of the
Honorable Henry Wade Page 4" (WW-403)
latter enactments, since its population Is Inexcess of
the prescribed one hundred thousand (100,000). According
to the 1950 United States Census the population of Dallas
county is 614,799.
With separate statutes providing for the appointment of a
County Purchasing Agent for Dallas County, the provisions of
which are Inconsistent, the question arises as to which sta-
tute shall prevail. We are of the view that House Bill,452,
supra, had the effect of expressly repealing Senat~e.B111,283,
because It contained a general and express repealer and was
a later expression of the intent of the 55th Legislature.
Even if Senate Bill 283, supra; had remained In effect, it
Is our further opinion that as between it and Rouse Bill 736,
supra, the two statutes here in question are Inconsistent and
are in Irreconcilable conflict, and iach is repugnant to the
other. Since both statutes pertain to the same subject and
are thus In ,.materia,the doctrine of repeal by implica-
t%on is app Ze in this instance. We can perceive of no
construction which would give effect to both statutes by
mating the latter Act cumulative of the former.
Section 1 (a) of Rouse Bill 736, supra, having been enacted
by the 55th Legislature, is the last expression of the lnten-
tlon of the Legislature concerning appointment of a County,
Purchasing Agent in counties with a population in excess of
100.000. BY settled rules of statutory construction. the
latest expression of the Legislature is to control. -Rx Parte
De Jesus De La 0, 227 S.W. 2d 212:(Tex.Crim. 1950); Stevens
v. State, 159 S.W. 505 (Tex. Crim., 1913); Townsend v. Terrell,
118 Tax. 462, 16 S.W.2d 1063 (1928); Wright v. Broeter, 143
Tex..142, 196 S.W.2d 82 (1946). We adopt the view that the
two stat&e& may not be rkonciled and o¬ co-exist, and
that the latter Act repealed the former by implication, and
the final expression of legislative will Is to the effect that
Ihe Purchasing Agent for Dallas County shall be appointed by
a majority of a Board composed of the Judges of the District
Courts and the County Judge of such county .
In answer to your first question, you are advised that It
is the opinion of this office that House Bill 452, supra, re-
pealed Senate Bill 283 supra, and that even if such were not
the case, Section 1 (al of House Bill 736, Acts 55th Legis-
lature, Regular Session, Chapter 18 , page 382, set out in
Texas Civil Statutes (Vernon's 1948 Article 1580 note is
controlling over Section 11 of Senate Bill 283, Acts 54th
Legislature, Regular Session, Cha ter 43, page 57. Pursuant
to the provisions of Section 1 (aP of House Bill 736, supra,
the County Purchasing Agent for Dallas County, Texas, shall
be appointed by 'a majority of a Board oomposed of the Judges
of the District Courts and the County Judge of such county .
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Honorable Henry Wade Page 5 (WW-403)
'Regarding your second question, you are advised that we
are of the opinion that no legislative or other action need
be taken to clarify the present laws pertaining to the ap-
pointment of a Purchasing Agent of Dallas County, Texas.
We want to thank you for enclosing a copy of the very
able opinion and brief wh,ichyou have presented to the County
Auditor and Judge of Dallas County on these questions. We
have found the opinion by Messrs. Carl E. Broyles, John J.
Fagan, and A. George Biggs, Assistant District Attorneys, very
helpful in our consideration of this matter.
Section 1 OP House Bill 452,
Acts 54th Legislature, Regular
Session, Chapter 302, page 815 .
repealed Section 11, Senate Bill
283, Acts 54th Legislature, Re-
gular Session, Chapter 43, page
Also Section 1 (a) of
%xse Bll$. 736. Acts 55th Legis-
lature, RegrrlarSession, Chapter
185, page 382, se,tout in Texas
Civf;.Statutes (Vernon's 1948)
Article 1580 note, would none-
t,-;he
less be eontrolling over
Sec,tionII of Senate BLil 283,
Acts 54fh Legislature, Regular
Session.,Chapter 43, page 57.
Pursuam to the provisions of
Section?1 (aj of Rouse Bill
736, sups, the County Purchas-
ing Agent for Dallas County,
Texas 9 shall be appointed by
"a majority of a Board composed
of the Judges of the District
Courts and the County Judge of
such county". No legislation or
Honorable Henry Wade Page 6 (m-403)
other action is needed to
clarify the present laws per-
taining to the appointment of
the Purahasing Agent of Dallas
County, Texas.
Yours very truly,
WILL WILSON
Attorney General of Texas
Assistant '
BHT:wam:mg
APPROVED:
OPINION COMMITTEE
Geo. P. Blackburn, Chairman
J. Milton Richardson
J. Arthur Sandlin
L. P. Lollar
REVIEWED FOR THE ATTORNEY GENERAL
By:
W. V. Geppert