Untitled Texas Attorney General Opinion ( 1957 )

. .
Honorable Zollie Steakley Opinion No. ww-232
Secretary of State
Capitol Station Re: Proper construction
Austin, Texas and constitutionality
of H. B. 11, Acts of
55th Legislature,
Regular Session, 1957,
Chapter 420, page
1259, which defines
and regulates the
business of giving
Dear Nr. Steakley: bail.
In your letter of July 29, 1957, you request an
opinion of this office "concerning the proper construc-
tion and constitutionality of House Bill No. 11, in
view of the language 1 any county having within its
boundaries a city with a population of three hundred
fifty thousand (350,000) inhabitants.'"
You olnt out in your letter that under Senate
Bill No. 29z , Acts of the 55th Legislature, Regular
Session, 1957, Chapter 269, page 575, effective August
22, 1957, the Administrator of the Securities Division
of the Secretary of State will be succeeded by the
Securities Commissioner appointed by the newly created
Securities Board, and thus the Securities Commissioner
will be charged with the administration of House Bill
No. 11, which likewise becomes effective on August 22,
1957. Hence, it becomes Important for you to know in
advance whether the provisions of House Bill No. 11
are constitutional in order to effectuate a transition
and in order to prepare forms and otherwise implement
the law, if it Is valid.
The caption of House Bill No. 11 recites that
it Is:
'An Act defining and regulating the
business of giving ball In criminal
and quasi-criminal cases; providing
for the licensing of person, firms
and corporations who engage in that
business in any county having within
Hon. Zollle Steakley, Page 2, (w-232)
its boundaries a city with a popula-
tion of three hundred and fifty
thousand (350,000) Inhabitants accord-
ing to the last preceding Federal
Census; providing certain penalties;
providing certain exemptions from
this Act; providing for appeal from
the decision of the Administrator
of the Securities Division of the
Office of the Secretary of State;
providing for administration of
this Act by the successor to the
Administrator of the Securities
Division of the Office of the Secre-
tary of State; providing for lice?sing
fees; and declaring an emergency.
Section 1 of the Bill defines the business of
giving bail and exempts lawyers and certain surety
companies from the provisions of the Act.
Section 2 declares that the business of giving
ball is a business affected with public interest,
and, as such, is subject to be regulated and controlled.
Section 3 authorizes any Court, Judge, Justice
of the Peace or other officer or person authorized by
law to accept bail, to examine under oath any prospec-
tive bondsmen and to refuse to accept bond under
certain circumstances.
Section 4 reads as follows:
"Sec. 4. No person, firm or corpora-
tion shall engage In the business of
making ball within any county con-
taining a city of three hundred and
fifty thousand (350,000) inhabitants,
as shown by the last preceding Federal
Census, without having first been
licensed thereto by the Administrator
of the Securities Division of the
Office of the Secretary of State; nor
shall any person, firm, or corporation
be permitted to engage in such business
if such person or any member of such
firm, or officer or director of such
corporation shall have been convicted
of any felony, or of any misdemeanor
Involving moral turpitude, in this or
Hon. Zollie Steakley, Page 3, (w-232)
any other state, or In any Federal
Court. ‘I
Section 5 empowers the Administrator of the Securi-
ties Dlvlsion of the Office of Secretary of State to
administer oath and examine witnesses, and to lnveeti-
gate anyone engaged In the business of "the making of
bail In this state."
Section 6 reads in part as follows:
"Sec. 6. Any applicant desiring to
engage in the business of glvlng
bail as defined in this Act, In any
county having within its boundaries
a city with a population of three
hundred and fifty thousand (350,000)
inhabitants according to the last
preceding Federal Census, shall
file with the Administrator of the
Securities Division a sworn appli-
cation for a license therefor, ...'
The remainder of this Section deals with the contents
of the application.
Section 7 authorizes the Administrator to
collect license fees.
Section 8 provides for the renewal of licenses.
Section 8a provides for the succession of the duties
of the Administrator to his successor in office or
any other person who may hereafter assume his duties.
Section 9 authorizes the revocation or suspen-
sion of licenses by the Administrator for certain
causes, and sets up the proced'urefor such suspension
and revocation.
Section 10 requires a bond of all licensees.
Section 11 provides in part as follows:
"Sec. 11. Any person, firm or corpora-
tion or agent or employee thereof who
shall willfully violate or fail or
neglect to obey, observe or comply
with any lawful order, permit, decision,
demand or requirement of the Adminis-
trator of the Securities Division under
Hon. Zollie Steakley, Page 4, (W’+J-232)
this Act as herein provided shall be
guilty of a misdemeanor and upon con-
viction therefor shall be sentenced
to pay a fine of not more than Five
Hundred Dollars ($500), or imprisonment
in the county jail for not more than
one (1) year, or both such fine and
imprisonment."
Subdivision (a) under Section 11 makes it an offense
for any person coming within the purview of the Act
to solicit "the privilege of writing or making bond
for any person charged with any criminal or quasi-
criminal offense". Subdivision (b) makes It an
offense to recommend or suggest the name of an
attorney to such person.
Section 12 provides as follows:
"Sec. 12. If any Section, Subsection
or requirement of this Act shall for
any reason be adjudged to be uncon-
stitutional, such adjudication shall
not affect the validity of the remain-
ing portions of said Act. The Legisla-
ture hereby declares that it would
have passed the Act and,each Section,
Subsection and requirement thereof
irrespective of the fact that any
one or more Sections, Subsections
or requirements be declared
unconstitutional."
Section 13provides as follows:
"Sec. 13. No person, firm or corpora-
tion whose application for license
to engage in making bail shall have
been refused shall be eligible to
make or renew such application for
license for a period of one (1) year
from the date of his or its prior
rejection."
Section 14 reads in part as follows:
"Sec. 14. The fact that there is an
unprecedented Increase In the number
of forfeited recognizance and bail
bonds In criminal cases and that there
.
Hon. Zollie Steakley, Page 5, (w-232)
are
. .no adequate
^.. laws
..-regulating the
ouslness or glvin Dali, creates an
emergency. . . . $
The language appearing in Sections 4 and 6 gives
rise to the question, whether the Legislature InFended
for those Sections of the Act to be effective only
in counties having a city with exactly 350,000 inhabi-
tants, or whether it intended the Act to be effective
In all counties of the state having a city of 350,000
inhabitants or more. According to the last Federal
census there is no city in Texas with exactly 350,000
inhabitants. We must assume the Legislature knew such
fact. It has been said, "By well-settled rdles of
law the Legislature, when it came to act upon this
matter, was charged with knowled e of these facts
particularly." State v. Hall, 7E S.W. 2d 880, 884
(Civ. ADW. 1934, writ dism.) holding the Act authorizlna
a code of fair competition for milk-industry in counties
of more than 350,000 population to be unconstitutional
under Section 56 of Article III of the Constitution of
Texas.
However, it is a maxim of statutory construction
that a useless or ineffective Act will not be attributed
to the Legislature where any reasonable interpretation
may render the Act effective. The Legislature in this
case is presumed to know that there ia no city in the
State of Texas presently falling within the group of
cities which have exactly 350,000 population. If we
were to construe this Act as applying only to those
counties containing a city which has exactly 350,000
population, we would be making Ineffective the wh.ole
of this Act for all practical purposes in view of
the extreme unlikelihood of any city in Texas ever
having a populatlon of exactly 350,000 according to
any Federal census. If we were to hold that the
Legislature Intended the Act to apply only to counties
having within their boundaires a city of exactly
350,000,the classification as a matter of law would
be unreasonable and we would be compelled to delcare
it unconstitutional as violative of Section 56 of
Article III of the Texas Constitution, or as an un-
reasonable exercise o,f the police power. Obviously,
the Legl~slaturecould not have intended that the Act
be construed In a manner which would render it
unconstitutional.
We think the Legislature intended this Act to
apply to cities having a population of 350,000 --
or over
Hon. Zollle Steakley, Page 6, (w-232)
and we so Interpret the provision set out In the first
paragraph of this opinion. We think that, viewing
the Act as a whole, It is not a stralned or unusual
Interpretation to hold as we do that the Act applies
to any county having within Its boundaries a city
with a population of 350,000 inhabitants or more.
Having concluded that the segment Involved
includes those counties containing a city having a
population of 350,000 or over, the question arises
as to whether or not tFiI$m is a local or special
bill within the meaning of Section 56 of Article III
of the Texas Constitution.
Two cases concerning the regulation of trades
or professions by classifications according to popl~!-
lation have been considered by the Texas Courts. In
State v. Hall, supra, the Court considered a statute
authorizing a code of fair competition for milk
industries in counties of more than 350,000 popula-
tion. This statute was to be effective for two
years and the 350,000 population was to be determined
by the last preceding Federal census. The Court
held this statute unconstitutional as being a local
or special law regulating a-trade within the meaning
of Section 56 of Article III of the Texas Consltution.
This decision was based on the fact (1) Harris
County was the only county Included within the
classification adopted in the ;ictand (2) because
of the operation of the federal laws relating to
the decennial census, this county was the only one
which could ever enJoy or endure the provisions
of this law.
The other case on the question is O'Brien
Amerman, 247 S.W. 270 (Tex. Sup. Ct. 19227xcern-
ing the statute enacted by the Legislature allowing
cities having a population of 100,000 or more,
situated on a navigable stream, owning and operating
municipal docks, wharves, or warehouses, to license,
appoint, and remove pilots on the waterway connecting
the city and the Gulf. The Court upheld this statute
as a valid exercise of the Legislative power, saying:
"The articles are not confined, by
the~lrtellns,to sny particuldr city or
waterways. The law is Instead general.
True it Is that the rights and powers
granted by the articles are to be exercised
only by officers of cities meeting these
.
Hon. Zollie Steakley, Page 7, (WW-232)
tests: First, having a population of 100,000
or more; second, being situated along or
upon a navigable stream in the state; and
third, owning or operating municipal docks,
wharves, or warehouses. Though no other
city except Houston meets these requirements
at this time, the law Is applicable to any
other city which may hereafter meet them.
There is no foundation whatever for holding
that the law was put in a general form merely
to evade the Constitution. There .;resuch
substantial grounds for the classification
made that the articles would stand the test
of the strictest rule applied in such an
inquiry. The Legislature might reasonably
conclude that the officials of a port city
of 100,000 population or over, malntsining
Its own docks, wharves, or wareho,&es,
would have so special sn interest in safe-
guarding and maintslniqg the port's com-
mercial Interests, that the state could
best intrust' to them such matters as to
appoint, suspend, and remove pilots on
the waterway connecting the city and the
Gulf, and to make reasonable regulations
pertaining to the pilots' services. It
seems obvious thdt the number of pilots
and the need of careful and s;rict super-
vision of pilotage would incl>s&e with the
size of the port and the extension of its
terminal water transportation facilities.
Classification of pilots according to port,
population snd municiplilterminal facilities,
having a reasonable basis and operating
uniformly on those coming within the same
class, violates no provision of the Consti-
tution. . . .'
We think the classification adopted by the Legis-
lature In the Act under consideration cannot be said
to be unreasonable as a matter of law under the holding
of the O'Brien case. It would appear thcitthe evils
accompanying the misuse of the making of bail bonds
bears a real relation to the population of the metro-
politan areas covered by the Legislature in this Act
and that such population affords a fair basis for the
, classification made. We think it may well be said
that the problems sought to be remedied by the Leglsla-
ture are proportionately more prevalent in the metro-
politan areas of the state. In the absence of a
Hon. Zollle Steakley, Page 8, (w-232)
clearly unreasonable classification, we conclude that
the Act Is a general law and does not come under the
prohlbltlons of Section 56 of Article III of the
Texas Constitution. O'Brien v. Amerman, supra.
The remaining question Is whether the Act
constitutes a valid exercise of the police power
of the State. There cannot be much question but
that the regulation of an activity affecting the
administration of justice constitutes a valid
exercise of the police power of the State. If a
reasonable relation may be ascertained between
the classification adopted by the Legislature and
the problem or evil to be remedied, the statute is
not to fall merely because certain persons are
included or excluded in that classification.
San Antonio Retail Qrocers v. Lafferty, 297 S.W.
??d613 (Tex. Sup. rfi 'lTY(JD
We have already concluded that the classifi-
cation adopted by the Legislature is reasonable and
appropriate to remedying th.eevils it purports to
remedy. Therefore, we x-e not able to say that
the classification does not bear a reasonable
relationship to the evils to be remedied. Unless
we are able to so concl.ude,we may not declare the
Act unconstitutional. See San Antonio Retail
Grocers v. Lafferty, supra.
The exception in the case of licensed attor-
neys and surety companies regulated by the Board of
Insurance Commissioners or tne Banking Commission
would not affect the constitutionality of the Act,
since it merely exclirdesfrom its terms those who
are already regulated or licensed for the protection
of the public. Neither does the Act affect the
administration of justice in the Courts, since it
only restricts those persons who are in the business
of professional bondmaking. It does not affect the
right of a person to bond nor to the right of the
courts to release a person on bond.
In summary we conclude that the Act applies
to any county with a city having a population of
350,000 inhabitants or more. Further, we do not
think that this Act violiitesthe provisions of
Section 56, Article III, concerning local or special
laws. Neither do we think the classification adopted
by the Legislature Is unreasonable when considered
In the light of the evils it seeks to remedy.
Hon. Zollle Steakley, Page 9, (WW-232)
SUMMARY
House Bill 11, Acts 55th Legislature,
Regular Session, 1957, chapter 420,
p. 1259 applies to counties having
within their boundaries a city of
350,000 or more inhabitants. This
Act Is not unconstitutional because
of the terms of Article III, Section
56, Texas Constitution, and is not
invalid as an unreasonable exercise
of the police power of the State.
Very truly yours,
WILL WILSON
JHM:wam:jas
APPROVED:
OPINION COMMITTEE
H. Grady Chandler, Chm.
B. H. Timins, Jr.
Mary K. Wall
Roger I. Dally
W. R. Hemphill
REVIEWED FOR THE ATTORNEY GENERAL
BY: Geo. P. Blackburn