Untitled Texas Attorney General Opinion ( 1957 )

Honorable J. E. Winfree Opinion No. WW-100
State Representative,
House of Representatives, Re: Whether or not House Bill
Capitol Building, No. 708, 55th Legislature,
Austin, Texas 1957 in Section 3 and
Section 4 thereof prescribes
rules of procedure in Civil
Actions conflicting with the
rule-making power of the
Supreme Court of Texas in
civil actions as delegated
to it by the Legislature
and whether or not said
Bill is special legislation
in view of the limitation
provisions contained in
Dear Mr. Winfree: Section 7.
Your letter of April 10, 1957 in substance requests an
opinion on H. B. 708, 4cts of the 55th Legislature, 1957, as to
whether or not Section 3 and Section 4, thereof promulgates rules
for practice in the trial of civil cases and, if so, what effect does
this have on the rule-making power in c tvil proteedings~ vested in
the Supreme Court of Texas by the Legislature.
You have asked two questions:
1. Does Section 3 and Section 4 provide or make
rules of practice for the trial of civil cases?
If so, what will be the ultimate effect of this
on our rules of practice in civil cases, inas-
much as our statutes now provide rule-making
power to be in the Supreme Court of Texas?
2. Whether or not the Bill is in the nature of
special legislation because of its limited
application as provided in Section 7 thereof.
Article V, Section 25, Texas Constitution provides:
“‘The Supreme Court shall have the power to
make and establish rules of procedure not incon-
sistent with the laws of the State for the government
-, .
Honorable J. E. Winfree, Page 2 (WW-100)
of said court and the other courts of this State
to expedite the dispatch of business therein.”
The following language is contained in Bar Association
of Dallas, et al. vs. Hexter Title and Abstract Company (Tex. Civ.
App. 1943, 175 S.W. 2d, 108, affirmed 142 Tex. 506, 179 S.W.2d 946:
“Early in the history of the State of Texas
it was generally recognized and conceded that
the right to prescribe rules of practice and
procedure in this State rested in its law making
bodies, and our statutes reflect the fact that the
legislature from time to time relinquished to the
Supreme Court the right to make certain rules
only. This state of affairs continued until the
46th Legislature, in the year 1939, passed H.B.
108, V.A.C.S., Article 1731a, which evidenced
the will of the law making body of Texas to
relinquish the rule making power to the Supreme
Court.”
Article 1731a V.A.C.S. reads in part as follows:
“Section 1. In order to confer upon and
relinquish to the Supreme Court of the State
of Texas full rule making power in civil judicial
proceedings, all laws and parts of laws govern-
ing the practice and procedure in civil actions
are hereby repealed, such repeal to be effective
on and after September 1, 1941. Providing, how-
ever, that no substantive law or part thereof is
hereby repealed.
“Section 2. The Supreme C,ourt is Hereby
invested wtth the full rule making power in the
~’~prtactice and proce~dure in civil kctions, Such
rules shall not abridge, enlarge or modify the
substantive rights of any litigant. . .”
It is held in Gonzales v. Rodriguez, Tex. Civ. App. 1952,
250 S.W.2d 253, rehearing denied, that under Tex. R.C.P. Rule 2,
rules of civil procedure are not to be applied only to civil suits, but
are to be applied in all actions of a civil nature; consequently, the
rules apply to all proceedings of a civil nature and exclude only
criminal cases.
.-
Honorable J. E. Winfree, Page 3 (WW-100).
Under this Article, givtng Supreme Court rule-making
powers, Supreme Court was invested with complete authority to
prescribe all rulessof procedure in all civil actions, and it was
intended thxall statutes relating to-i1 procedure should be fnoper-
ative on and after September 1, 1941, including those passed at the
same session of the Legislature. Garrett v. Mercantile Nat. BInk
at Dallas, 140 Tex. 394, 168 S.W.2d 636 (1943).
Secttons 3 and 4 of this Bill are as follows:
“Section 3. Every person who commences
or prosecutes or assists in the commencement
or prosecution of any proceeding in any court
or before any administrative agency ,in the State of
Texas, or who may take an appeal from any such rule,
order, or judgment thereof, shall, on motion made
by any of the parties of such proceedings,~ or by the
court or agency in which such proceeding is pending,
file with such court or agency, as a condition prece-
dent to the further prosecution of such proceeding,
the following affidavit:
” ‘I, name) petitioner (or complainant,
plaintiff, appe
Li lant or whatever party he may be)
in this ‘matter, do hereby swear (or affirm) that
I have neither received, nor conspired to receive,
any valuable consideration or assistance whatever
as an inducement to the commencement or further
prosecution of the proceedings in this matter.
(signature of Affiant)
Aft tant
‘Sworn to and subscribed before meson this,
the (date) day of (month), 19 (year)
(Signature of Official)
(Title of Official)’
“‘In the case of any firm, corporation, group,
organization, or association required to make the
above affidavit, such affidavit shall be made by the
person having custody and control of the books and
records of such firm, corporation, group, organi-
zation, or association.
Honorable J. E. Winfree, Page 4 (WW-100).
“Section 4. Every attorney representing
-. .
any person, firm, partnership, corporation, group,
organization, or association in any proceeding in
an court or before any administrattve agency in
* of Texas, or who may take an appeal
fromany rule, order, or judgment thereof, shall,
on motion made by any of the parties to such pro-
ceeding, or by the court or agency in which such
proceeding is pending, file, and as condition prece-
dent to the further prosecution of such proceeding,
the following affidavit:
” ’ I, {name), attorney representing (name of
party), petttioner (or complainant, plaintiff, appel-
lant, or whatever party he may be) in this matter,
do hereby swear (or affirm) that neither I nor, to
the best of my knowledge and belief, any other
person, firm, partnership, corporation, group, organ-
ization, or association has promised, given or offered,
or conspired to promise, give, or offer, or solicited,
received, or accepted any valuable consideration or
any assistance whatever to said name of party as
an inducement to said (name of party) to the corn-
mencement or further prosecution of the proceedings
herein.
(Signature of Affiant)
Aff tant
‘Sworn to and subscribed before me on this, the
(date) day of (month) , 19 (year).
(Signature of Official)
(Title of Official)’
“Provided, however, that if, on motion made,
such affidavits are promptly filed, the failure in the
first instance to have filed same shall not constitute
grounds for a continuance of such proceedings.”
Section 7 provides:
“The provisions of this Act shall not be appli-
cable to attorneys who are parties to contingent fee
contracts with their clients where the attorney does
not pay or protect the client from payment of the
costs and expense of litigation, nor shall this 4ct
apply to suits pertaining to or affecting possession
of or title to real or personal property, including
. .-
Honorable J. E. Winfree, Page 5 (WW-100).
personal injury or death clatns’, nor shall this Act
apply t,o suite: invoking the ,legality of assessment or
collection of tane.s, nor shall tbls Act apply to suits
involving rates or charges by conimon carriers of
public utilities, nor shall this’ Act apply to criminal
prosecutions.”
Sections 3 and ,4’of this Bill prov.fde for the filing of affidavits
in connection with court and administrattve agency proceedings. This,
in effect, prescribes a rule for practice and procedure ln law suits and
thereby conflicts with the ,vieW that~ all rule-making power is vested in
the Supreme Court as delegated to it by the Legislature. The rule-
maktng power in civil judicial proceedings Is given to the Supreme
Court concerning practice,and procedure. It seems that, from the
authorities cited, it was the intention of the Legislature to give all
such powers to the Suprem~e Court. This is evident from particle
1731a. The Legislature, however, may amend or repeal this law at
any time and make such changes as it deems expedient. We hold
Sections 3 and 4 of said Bill to conflict with the rule-making power
delegated to the Supreme ,Court.
“A’ statute is not local or special even
though its performance is confined to a res-
tricted area, if the persons or things through-
out the State are affected thereby or if It
operates upon the subject that the people at
large are interested in.” Atwood VS. Willacy
Co. Navigation District, Tex. Civ. App. 1955,
284 S.W.2d 273, refused, n.r.e.
Sections 3 and 4 require t he affidavit on motion in 9 pro-
ceeding and= court. Then Section 7 exempts many types of proceed-
ings. However, this Bill would not be classed as special legislation
because its provisions are not limited to a restricted area. On the
contrary, it would affect the entire State and acts alike on’all suits
not specifically exempt therefrom.
SUMMAR Y
Section 3 and Section 4 of House
Bill 708 contain rules or practice and
procedure for the trial of civil cases.
Full rule-making power in civil actions
Honorable J. E. Winfree, Page 6 (WW-100).
has been delegated to the Supreme Court
by the Leglslatute in Art. 1731s V.C.S.,
but this Article may be amended or .re-
pealed.’ Se&tie-3’ and 4 of the Bill Will
have th$ effect of replaClng some of the
rules pi procedure.
.
House Bill No. 708 iS not special
‘legtslation by vlitue of theprovisions of
Section 7 thereof, in that it is tiot local
but affects the public generally.’
Very truly yours,
JLS:am:pf
APPROVED:
OPINION COMMITTEE
H. Grady Chandler,
Chairman
Edwin P. Warner
J. C. Davis, Jr.
William E. Allen
John Ross Lennan
REVIEWED FOR THE ATTORNEY GENERAL
By: Gee. P. Blackburn