Untitled Texas Attorney General Opinion ( 1951 )

. ,
Hon. Travis D. Shelton Opinion Wo. V-1303
District Attorney
Lubbock, Texas Re: Whether the salary increa~se
authorized by Section 2,
Article 3912g, V.C.S., is
applicable to assistant dis-
trict attorneys in Lubbock
County appointed under Arti-
Dear Sir: cle 326k-12, V.C.S.
Your request for an opinion of this office
states that under the present population of Lubbock
County the appointment of assistant district at-
torneys is controlled by Article 326k-12, V.C.S. You
ask whether assistant district attorneys appointed
under Article 326k-12 may be granted the salary in-
crease a~uthorizedby Article 3912g, V. C.S.
Section 2 of Article 3912g provides:
"The Commissioners Court in each county
of this State is hereby authorized, when in
their judgement the financial condition of
the county and the needs of the deputies,
assistants and clerks of any district, coun-
ty or precinct officer justify the increase,
to enter an order increasing the compensa-
tion of any such deputy, assistant or clerk
in an additional amount not to exceed thirty-
five (35%) per cent of the sum allowed under
the law for the fiscal year of 1948."
Section 5 of Article 3912g provides:
"The provisions of this Act shall be
cumulative of all other laws pertaining to
salaries of county and precinct ofiicers
and their deputies and assistants.
Section 1 of Article 326k-12, as originally
enacted in 1947, provided:
"From and after the passage of this Act,
in a Judicial District composed of one or
more counties and in which the population
in any one of said counties, as determined
, .
Hon. Travis D. Shelton, Page 2 (V-1303)
by the last preceding Federal Census, is
not less than seventy thousand (70,000)
and not more than two hundred and twenty
thousand (220,000) inhabitants, and in
which county there are two (2) or more
District Courts the District Attorney or
the Criminal District Attorney, with the
consent of the combined majority of the
District Judges and Commissioners Court
of such county,is hereby authorized to
appoint at their discretion, not more
than six (6) investigators or assistants
who shall receive a salary of not more
than Three Thousand, Seven Hundred and
Fifty Dollars ($3,750) per annum, nor
less than Three Thousand Dollars ($3,000)
per annum, the amount of such salary to
be fixed by the District Attorney or
Criminal District Attorney and approved
by a,majority of the District Judges; .
. .
Article 326k-12 was amended in 1949 by House
Bill 474, Acts 51st Leg., R.S. 1949, ch. 495, p. 916.
The only change made by the amendment was to extend
the statute to include judicial districts containing
a county having a population between 39,000 and 50,-
000 inhabitants. The salary limits fixed in the 1947
act and all other provisions governing the appoint-
ment of assistants in counties included within the
original act were left unchanged. The 1949 act re-
pealed all laws or parts of laws in conflict with its
provisions "to the extent of the conflict only."
House Bill 474 was finally passed by the Leg-
islature on June 21, 194.9,and was approved by the Gov-
ernor on June 29, 1949.
Article 3912g was also enacted by the 51st
Le islature. Senate Bill 92, Acts 51st Leg., R.S.
lg8 g, ch. 320, p. 601. This statute was finally passed
by the Legislature on May 31, 1949, and was approved
by the Governor on June 6, 1949. It is seen that
House Bill 474 was both passed and approved subsequent
to the enactment of Senate Bill 92.
Unquestionably, the increase authorized by
Article 3912g was applicable to assistants appointed
under Article 326k-12 as enacted in 1947. The question
Hon. Travis D. Shelton, Page 3 (V-1303)
then arises as to whether the amendment of Article
3'26k-12subsequent to the passage of Article 3912g
had the effect of repealing Article 3912g insofar
as it might apply to assistants appointed under the
later enactment.
In Jessee v. De Shon , 105 S.W. 1011 (Tex.
Civ. App. 1907), the court la down the following
rules:
"Where the re-enactment is in the
words of the old statute, it was evident-
ly intended to continue uninterrupted
the portion of such statute, and the new
act or amendment is a mere continuation
of the former act, and not in a proper
sense a repeal.' This expression embodied
a rule of construction, applicable to the
re-enactment of an identical provision
when no enlargement of that particular
provision occurs. as being an express neg-
atlve of the intention to repeal or recall
that particular provision so re-enacted.
Its applicability is founded on the reason
that at the time of framing the new act
the fact existed that this same identical
provision of law existed in the former
law, with its rights and remedies; and
thefurther fact that it was carried for-
ward in its terms, without change or re-
pugnancy, in the new act, would warrant
the Inference of the intent of the Leg-
islature that the particular provision was,
as before, to continue to be applied as
before to the facts existing at the time
of the enactment. . . . It is true there
is found a general rule of construction,
that in proper cases is applied by the
courts, that where there is a new enact-
ment in relation to a particular provision
or subject-matter, and the act plainly
shows that it was intended to, and does,
comprehend the entire subject-matter relat-
ing to the objects of the enactment, and
was intended to be a substitute for all
prior statutes on that subject, it oper-
ates as a repeal by reasonable implication
of all such prior laws. This general rule,
nevertheless, has exceptions and,limita-
tions to its application, like all rules.
Hon. Travis D. Shelton, Page 4 (V-1303)
It is founded on legislative intent, on
what was expressed and done, and is ap-
plied to the intent appearing evident
in the act. It Is a general limitation
put upon the application of this rule of
construction that the particular provi-
sion of a former act embodied in the new
act cannot be treated by the courts as
new enactments, and construed from the
standpoint of the arrangement of the new
act and on the theory that they had no
prior existence, but must be construed
by the courts from the standpoint of the
intention of continuation of the former
law, unless there is a contrary intent
to supersede."
It is evident from the repealing clause in
House Bill 474, which repealed other laws to the ex-
tent 9 conflict only, as well as from other pro-
visions of the bill, that this statute was not in-
tended to be exclusive on the subject matter covered
by it. Since the provision in question was re-
enacted in identical form with the prior enactment,
it is to be considered as a continuation of the for-
mer law.
Section 2 of Article 3912g, which was ap-
plicable to Article 326k-12 before amendment, is
not in conflict with the identical re-enacted por-
tion. Clearly, then, Article 3912g was not express-
ly repealed by House Bill 474. Nor was it repealed
by implication, since House Bill 474 was not in-
tended to deal with the subject in Its entirety.
In Taggart v. Hillman, 93 S.W. 245 (Tex.
Civ. App. 1905, error ref.), the court quoted the
following rule which is applicable here:
"A later law which is merely a re-
enactment of a former, does not repeal
an intermediate act which has qualified
or limited the first one, but such in-
termediate act will be deemed to remain
in force, and to qualify or modify the
new act in the same manner as it did the
first."
See 5C Am. Jur. 558, Statutes, Sec. 553, and cases
there Lited.
Hon. Travis D. Shelton, Page 5 (V-1303)
From these authorities, it is our conclu-
sion that Article 3912.gis applicable to the.re-
enacted portion of Article 326k-12.in the same man-
ner that it was prior to the amendment of this
statute by Senate Bill 474.
Section 2 of Article 3912g authorizes an
increase in salary "not to exceed thirty-five per
cent of the sum allowed under,the law for the fis-
cal year of 1948." This provision has been inter-
preted to relate to the compensation allowed In
the articular county In 1948. Att'y Gen. 0~s..V-
864 71949) ,andV-1140 (1951). Under the 1940 Fed-
eral,census, Lubbock County had a population of
51,782. Therefore, the appointment of assistant
district attorneys In this county in 1948 was gov-
erned by Article 3902, V.C.S. Subdivision 3 of
Article 3902 fixed the maximum base salary of the
first assistant at $2100 per year and the maximum
base salary of other assistants at $1800. Sub-
division 9 of Article 3902 authorized an increase
of 25 per cent of the sum allowed under the law
for the fiscal year of 1944. The sum allowed in
1944 was the same as that allowed under Subdivi-
sion 3 in 1948. Subdivision 10 of Article 3902
as added by Senate Bill 272, Acts 50th Leg., 1947,
ch. 162, p. 266, authorized a further increase of
20 per cent in counties having a population of not
less than 51,782 and not more than 52,500, but this
provision was held unconstitutional as a local law
prohibited by Section 55, Article III Constitution
of Texas, in Att'y Gen. Op. V-225 (1947).
Applying the valid statutes to the present
case, we find that the maximum salary allowable to
assistant district attorneys in Lubbock County at
this time is as follows: first assistant, $4%8.75
($3750.00 under Article 326k-I.2plus 35s of [$2100.-
",;,;lus$525.09]under Article 3912g); other assirt-
$4537.59 ($3750.00under Article 326k-I.2plus
35% if [$1800.00 plus $450.001 under Article 3912g).
SUMMAFX
The salary increase authorized by Sec-
tion 2 of Article 3912g, V.C.S. is appli-
cable to assistant district attorneys ap-
pointed under provisions of Article 326k-12,
, I
'Hon. Travis D. Shelton, Page 6 (V-1303)
V.C.S., as Fe-enacted by House Bill 474,
Acts 51st Leg., R.S. 1949, ch. 495, p.
916.
APPROVED: Yours very truly,
J. C. Davis, Jr. PRICE DANIEL
County Affairs Division Attorney General
Jesse P. Luton, Jr.
Reviewing Assistant
By 2y wfw
Charles D. Mathews Mary K. Wall
First Assistant Assistant
MKW:awo