Untitled Texas Attorney General Opinion ( 1951 )

August 1, 1951
Hon. Gene Maddin Opinion No. V-1226
District Attorney
Waco, Texas Re: Constitutlonalltg of
Senate Bill 424, Acts
52nd Legislature, 1951,
creating the County
Court at Law of Mc-
Dear Sir: Lennan County.
Your request for an opinion relates to the .con-
stitutional.lt of Senate Bill 424, Acts 52nd Leg., 1951,
ch. 248, p. 3is
6. The act in question creates a county
court at law for McLennan County, granting such court
jurisdiction in all matters, civil and criminal, original
and appellate, over which the county court would have ju-
risdiction, except the general jurisdiction of a probate
court, which is retained by the County Court of McLennan
County. The county court at law is granted concurrent
jurisdiction with the County Court of McLennan County in
the trial of insanity cases, restoration cases, approval.
of applications for admission to State Hospitals and Spe-
cial Schools, application for beer license, and the power
to punish for contempt. Provisions are made for terms of
court, salaries, duties, and vacancies. The effective
date as set out in the bill is September 1, 1951.
Supplementing your original request you state
that you are especially desirous of our opinion relat-
ing to Section 1.4of Senate Bill 424 as well as the power
of the Legislature to prescribe the qualifications of a
judge of the County Court at Law of McLennan County.
Section 1 of Article V, Constitution of Texas,
provides:
"The judicial power of this State shall
be vested in one Supreme Court, in Courts of
Civil Appeals, in a Court of Criminal Appeals,
C
in District Courts, In County Courts, in Com-
missioners Courts, In Courts of Justices of
the Peace, and in such other courts as may be
provided by law.
.,
._
Ron. Gene Maddin, page 2 (V-1226)
”
. . .
*The Legislature may establish such other
courts as It may deem necessary and prescribe
the jurisdiction and organization thereof, and
may conform the jurisdiction of the District
and other inferior courts thereto."
Section 22 of Article V, Constitution of Texas,
provides:
"The Legislature shall have power, by
local or general law, to increase, diminish
or change the civil and criminal jurisdiction
of County Courts; and in cases of any such
change of jurisdiction, the Legislature shall
also conform the juris$ction of the other
courts to such change.
In Garvey v. Matthews, 79 S.W.2d 335 (Tex.Clv.
App. 1935, error ref.) the court in upholding an act
which created a County'Court at &w No. 2 for Bexar
County, stated:
"The Constitution having expressly au-
thorized the Legislature by article 5, sets.
1 and 22, to establish other courts and to
increase, diminish, or change the jurisdlc-
tion of county courts, the Legislature had
the power to create a county court at law
with jurisdiction limited within the scope
of the jurisdiction of the county court as
defined by the Constitution. This partic-
ular county court at law was, therefore,
created under the sanction of the Constitu-
tion. State v. Valentine (Tex.Civ.Ap .) 198
S.W. 1006; City of Dallas v. Johnson PTex.
Civ.App.) 54 S.W.(2d) 1024; Texas & N.O.R.
Co. v. City of Beaumont (Tex.Clv.App.)~285
S.W. 944; Acree v. State (Tex.Civ.App.) 47
S.W.(2d) 907; Lytle v. Ralff, 75 Tex. 128,
12~s W. 610; Rarris County v. Stewart, 91
Tex. 133, 41 S.W. 650.
'The act creating the court having been
expressly authorized by the constitutional
provisions last referred to, it is unneces-
sary to consider whether that act was local
Hon. Gene Maddin, page 3 (V-1226)
or special in character within the contem-
plation of article 3, sets. 56 and 57, of the
Constitution. Harris County v. Crooker, 112
Tex. 450, 248 S.W. 652.
I . . .*
Also see Allenv. State, 122 Tex. Grim. 186, 54 S.W.2d
810 (19321, and State ex rel; Rector v. McClelland, 148
Tex. 372, 224 S.w.2d 706, pg>ir’
Section 14 of the act in question provides for
the compensation of the County Judge of XcLennan County.
In our opinion this section Is unconstitutional. (Tex.
Const., Art. III, Sec. 56.) It should be noted that a
different rule obtains with respect to county courts
created by the Constitution and county courts at law
created by statute.
In Ward v. Harris Count , 209 S.W. 792, 794
(Tex.Clv.App. 1919, error ref.), &e court stated:
-.
“Both of these laws are special acts of
the Legislature, and in so far as they at-
tempt to increase the salary of the county
judge of Harris county over that fixed by
the general law for county judges in ths
other counties of the state in the S&me class
as Harrie county, as classified by the gene+
al law, is, we think, clearly obnoxious to
article 3, section 56, of the Conatltutlon of
this state, and to that extent must be held
invalid. The article of the Codstltutlon
above cited prohibits the Legislature from
passing any local or special law ‘regulating
the affairs of counties, cities, towns, wards
..or school districts, I and from passing any
local or special law where a general law,can
be made applicable. It 8eema clear ,to..us
that the flxlnn of the ComPeneatlon to be wid
a oounty judge by a wrtlcular counts ls.a,
renulatlon Of the arfalrs Of the county wlth-
in the purview of this article of the Constl-
tution.” (Rmphasls added.)
On the other hand, It la the well-established
law in this State that bills which prescribe the jurla-
.- diction and organization of those courts which the Leg-
islature may establlsh under the provieione of Sectton 1
Hon. Gene Maddin, page 4 (V-1226)
of Article V are not governed by the provisions of Sec-
tion 56 of Article III of the Constitution of Texas.
Garveg V. Matthews, supra; Harris County v. Crooker,
224 S.W. 792 (Tex.Civ.Ao~. ‘r920).affirmed 112 Tex. 450.
248 s.W. 652 (1923); Jones v; Anderson, 189 S.W.26 65- ’
(Tex .Civ.App. 1945, error ref.) .
If Section 14 of the act relating to the coun-
ty judge may be severed from the remaining portion, it
is our opinion that’the act is valid and constitutional.
In 2 Sutherland, Statutory Construction (3rd
Ed. 143) 178-179, Sec. 2404, it is said:
“In determining se,parabllity,legislative
intent governs, but intent that the act be en-
forced in so far as valid is not the sole con-
sideration. If the legislature so intended,
the valid parts of an act will be upheld ‘un-
less all the provisions are connected in sub-
ject matter, dependent on each other, operating
together for the same purpose, or otherwise so
connected together in meaning that it cannot
be presumed the legislature would have passed
the one without the other. t To be capable of
separate enforcement, the valid portion of an
enactment must be independent of the invalid
portion and must,form a complete act within
itself. The law enforced after separation
me reasonab~lein light of the act as
origlnal1.ydrafted. The test is whether or
not the legislature would have passed the
statute had it been presented with the in-
valid features removed.” (Emphasis added.)
The act contains no severability or saving
in Christopher V. City of El Paso, 98
~??%‘39?%?{Tex.Civ.App. 1936, error dism.), the
court said:
“We do not concur in the contention
that the invalidity of the exemption pro-
vision, Fn the absence of a saving clause,
renders the entire act unconstitutional.
While it is true that the provision Is in-
cidental to the main purpose of the act, yet
,it.is capable of being separated from the
act without materially affecting that main
purpose .‘I
Hon. Gene Maddin, page 5 (V-1226)
.
i .~ Since the unconstitutional provision in Senate
Bill 424 is capable of being separated wlthout materially
affecting the main purpose, it is our opinion that the re-
mainder of Senate Bill 424 IS constitutional and valid.
Although the Constitution prescribes the quali-
fications of the county judge of the regular county court
(Art. V, Sec. 15), the county court at law is not the
same type as the regular county court. The county court
at law is created pursuant to that part of Section 1 of
Article V of the Constitution of Texas which provides
that "The Legislature nag establish such other courts
as it may deem necessary and there are no qualifica-
tions provided for in the Constitution for the judges
of county courts at law.
Therefore it is our opinion that the power'of
the Legislature to prescribe the qualifications of the
judge of the county court at law Is incidental to the
power to create the same.
Inasmuch as Senate Bill 424 does not contain
an emergency clause and did not receive the required
two-thirds record vote, It does not become effective un-
til September 7, 1951, ninety days after adjournment of
the Legislature on June 8, 1951. Tex. Const., Art. III,
Sec. 39; Caples v. Cole, 129 Tex. 370, 102 S.W.28 173
!;;3;7';$10: ",ssyany Society v. Equitable Trust "02;
93 8 .W d 58 (19331; Att'YOe n. p. 9
(1949).*
SUMMARY
Although Section 14 of Senate Bill 424,
Acts 52nd leg., 1951, ch. 248, p. 386, re-
lating to the salary of the county judge Is
unconstitutional, the remainder of the act
which creates a County Court at Law for Mc-
Lennan County is constitutional.
9 S.W.28 335,
Matthews ' 7 ; Allen v. State, 122 Tex,.Grim.
error ref.
186, 54 S.W.2vtate7;: ~1. '
Rector v. McClelland, 14 Tex. 3
S.W.2d 706 (1.949).
The effective date of Senate Bill 424
is September 7, 1951, ninety days after ad-
journment of the Legislature on June 8, 1951,
Hon. Gene Maddin, page 6 (V-1226) -.
since it failed to receive the required
two-thirds record vote and does not con-
tain an emergency clause. Tex. Const.,
Art. III, Sec. 39; Caples v. Cole, 129
Tex. 370, 102 S.W 26 173 (1937); union
Assurance Society v. Equitable Trmo.,
122 Tex. 293, 58 S.W.28 58 (1933); Att'y
Gen. Op. V-927 (1949).
APPROVED: Yours very truly,
J. C. Davis, Jr. PRICE DARIEL
County Affairs Division Attorney General
Everett Hutchinson
Executive Assistant
Charles D. Mathews
First Assistant
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