Untitled Texas Attorney General Opinion ( 1951 )

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EATTORNEYGENERAL
OFTEXAS
AU~TXN I%T-EXAS
PRICE DANIEL
ATTORNEY
GENERAL
June 28, 1951
Hon. Allan Shivers Opinion No, V-l 199
Governor of Texas
Austin, Texas ore: Effset of Senate Bill No. 236
(Insurance Coda), if it becomes
law, on the gross premium rc-
ceipts taxes of insurance Qom-
pad as levied in House Bill
285 3F
( he Omnibus Tax Law),
Dear Governor Shivers:
Your request for an opinion states that a questionhas
been raised as to a possible conflict between Senate Bill 236,
Acts 52nd Legislature, known as the Insurance Code, and House
Bill 285, Acts 52nd Legislature, the Omnibus Tax Bill. You point
out that House Bill 285 levies the usual gross premium tax on
insurance companies and re-enacts the ten per cent increase
passed by the Fifty-fir&Legislature at its First Called Session,
while Senate Bill 236 specifically provides that “Domestic insur-
ance companies shall not be required to pay any occupation or
gross receipt tax except 8s otherwise provided by this code.”
You then call our attention to House Conr~rrent Resolution No.
179. and ask the following qrestion:
“In the event I sign Senate Bill No. 236 would the
tax levied in House Bill No. 285 he a vatid and enforce-
able tax?.
Senate Bill No. 236, the Insurance Code, as finally passed
by the Legislature, is very voluminous, consisting of 517 legal type-
written pages, and is evidently the result of months of research, It
purport,8 to expressly repeal 243 separate articles of the Revised
Civil Statutes of Texas, 1925. and 96 separate acts: of the Legisla-
ture, and in addition, all laws or parts of laws in conflict with the
Code. Your request was received by us on June 20, 1951, and by
reason of the short time available to us before you must act on
this measure on or before June 28, 1951, it is impossible for ue
to check this: code in detail. We have, therefore, been compelled
to coniine our diseushon to the one spscifit question you have pre-
mate&
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Hon. Allan Shivers, page 2 (V-1199)
The Insurance Code (S.B. 236) passed the Senate on
April 10. 1951, by a viva vote vote, and passed the House on May
23, 1951, by a record vote of 103 yeas and 9 nays. It appears from
the certificate of the Secretary of the Senate and the Chief Clerk
of’the House that Senate Bill 236 was corrected by House Concur-
rent Resolution No. 179 on June 7, 1951, The evident purpose of
the Resolution was (1) to place in the code the provis,ions of five
bills adopted by the Fifty-second Legislature prior to the passage
of the code, some of which were then effective and some ‘of ‘which
were not, and (2) to iimbve from the code three &par&e statutes
(Articles 7064, 7064a, and 4769) levying gross premium receipt
taxes and~‘strike the”enumeration of these three statutes from the
“express repeal” section,(Section 4) of the code. The obvious
purpose ‘in removing,the taxing statutes from the code was by
reasbn’oi the fact that there was some doubt as to whether the
taxing statutes would be a revenue bearing measure and, if so,
whether it would be invalid under the provisiuns of Article III,
Sec. 33 of the Constitution of Texas, the bill having originated in
the Senate. : .‘,
.Oi-cpurs& under the Constitution (Art. ‘III,’Sec. 30)
‘No law shall’be passed except.by bill,* but based on the “enrolled
bill rule’*‘we think the procedure followed by the Legislature to
accomplish t8e zemoval of the tax statutes’from the Code was
valid. ‘Ellison v* Texas Liquor Control Board, 154 S.W,2d 322
‘(Tex, av. App. 1941, error ref.). In other words. a duly enrolled,
authenticated, and approved bill imports absolute verity and con-
stitutes a %onclusive record of adoption of the act, as enroll&d,
in aeeordance with coastitutional requirementi:
._ -... - ____” Rlecaino
________ v~
-9
hitw
---,
of Galveston, 42 Tex. 641 (1875);'Willia
____ems v, Taylor. 83 Tex. 667.
19 S W 156 (l892)j Tackson v. Wal ker, 121 TG 333-49 S.W.2d 693
(1932);‘King vr Terre11 218 S.W; 42 vex. Civ. App. 1920, error ref.).
This iu so even where,‘as in the Ellison case, the certificates-ahow
correction of a bill by resolution prior to being enrolled.
The aet under reviaw in the Ellison case had attachad
thereto’the ;certificate of the Chief Clerk& House:
‘I hereby certify that l&B. No- 373 w,as passed
by the .Houre on March 20, 194+ by the following votes:
yeau Iii), nays 16,*.
TM cart&&eats ~0: the Sderetary of the S&at+ appearing
thereundey ‘read:
.’
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Hon. Allan Shivers, page 3 (V-1199)
‘I hereby certify that House Bill No. 373 was
passed by the Senate with amendments on April 17,
1941,by the following vote: ayes 29, nays 0; and that
the Sonata fecedcd from the amendments to House
Bill $73 aS shown by Senate Resolution No. 125 on
May 7, 1941, by the following votes: yeas 24. nays 2.”
“?n overruling the contention that the act was passed
in violation of the Constitution, the Court said:
‘The ‘enrolled bill rule’ is applied by the courts
in Texas, which, as stated in Texas Jurisprudence, Vol.
39s pt 121, is as follows: ‘In the review of enactments,
the Courts of Texas have long since adopted the so-called
“enrolled bill rule’, to the effect that a duly authenticated,
approved and enrolled statute imports absolute verity
and ie Conclusive that the act was passed in every respect
aoaording to constitutional requirements, In other words,
ac@ording to the settled rule an act passed by the Legis-
lature,, signed by the proper officers of each house, ap-
proved by the Cov&rnor+ or passed notwithstanding, and
f%led in the office of the Secretary of State, constitutes
a conclusive record of the passage of the act as enrolled.
As against this record resort may not be had to a proc-
&a&nationof t&e Qovornor, to the terms of the bill~as
originally introduc& or amendments thereto, to the jbur-
nal of the LegMature, nor to par01 evidence for the pur-
pose of impeaching or invalidating the law.’ The opinion
of Justice Gaines in Williams v. Taylor. 83 Tex, 667. 19
S.W. 156, make it unnecessary, in thi,g opinion, to show
why the journals of the Legislature or Senate will not be
~ece&& to impeaChFan enrolled bill. Seemalso King v,
Terre& Comptroller, Tex, Civ. App.. 218 S.W. 42. The
evidence relied upon by appellants as establishing that
the bill, as passed by the House of Representatives. was
pabaed the Senate with amendments depends upon en-
tries in%be journals of the House. To receive such evi-
deaee’would be contrary to the ‘enrolled bill rule’.
” a ,a + H,B, No. 373 is therefore duly enrolled, and
recourse to the Journals of the House or the Senate to
Hon. Allan Shivers, page 4 (V-1199)
if his certificate to such purport is made by him in
discharge of hrs legal duty, it must be conclusive1
as appellees s
1 constitutional indicia of passage would be per-
mitted to show &at the Senate had not properly “re-
ceded’ from its “amendments’“. There are states in
which the ‘enrolled bill rule’ does not prevail. But
the law in this respect in Texas is too well settled
to admit of any quost.lon. We will not therefore dis-‘
cuss aaathorities to the contrary from other states.
Therefore we overrule appellants’ contention that
H.B. 373 shows on its face that it was passed in vi-
,olation of the constitution, or that it was so shown by
the journa?s.’ (Emphasis ouas.)
In our opinion the Ellison case is controlling here, and
the Iusuranee Code (S.B. 236).rolkd. not containing the three
taxing statutes (Arts* 7064, 7064a, and 4769). nor expressly repeal-
ing them, left such statutes in force and effect. unless such stat-
utes are repealed by implication as a result of the provisions in
the Code providing that ‘“domestic insurance companies shall not
be required to pay any occupation or gross receipt tar except as
otherwise prov%ded by this Code,” and “no occupation tar other
than herein imposed shall be levied by the Stack or any County,
City or tom upon any insurance orga~tieation herein subject to
the ooctapation tax in proportion to its gross premium, or its
agentr,e aad &at “the occqx3tiora tax imposed by this chapter shall
be the sole occupation tax which any com$any doing business in
this S te under the provisions of this Chapter shall be required to
f=
pay. m
Tbe Code (Art& 5.49. 5.68, 8,24(e), 9*23, 15.18. 19.11)
does in fact levy certain gross premium taxes against insurance
companies to be paid i&o various special funds of the Board of
haurance Commfsoioners for ardorcement purposes. While it
may well be that some d these levies ard occupation taxes. none
are leded for general revenue .purp;rpeerand hence the levy there-
of in Sena%s Bill 236 does not constitute %ibising revenue’ within
the meaning of Section 33 of Article EU of the Constitution of Texas.
This section does not annlv to bills which mav incidentallv raise
revenue Da Land & d&kc Co,,v. Stab, 68 Tenn. 526. 4 S.W. ~865
&``~i~ur&e Feet r%%W&d 397 (Tex. Civ. App.
I43 Tex. 424, 185 S.W.Zd 966 (1945).
I1 Articles 4,Ol and 4-06 of the insurance Code.
Hon. Allan Shivers, page 5 ’ (V-1199)
The provisions qvoted above appear to be in conflict
with the provi#iorg 05ArtMes 7064, 7064a. and 4769, all of which
are part of the, ro-call&d “Omnibus Tax Law.. If this ir so, then
%C quartion a?i888 a8 t0 whdrr thccc provisions a’nd the general
repealing clause iu fhe Code oould operate as a repeal by implica-
tion of Articles 7064,7064a, and 4769. or any of the provisions
thereof. We do not think so.
The rule is wall established that repeals by implication
aye not favored. Townsend v. Terre& 118 Tex. 463, 16 S.W.Zd
1063 (1929). The Ineuraneo Code (S B 236) and the Cmnibus Tax
Aat (H.B. 285) were both passed at*& same uession of the .1.&s-
la&e and “nothing short of expressions so plain and positive as
to force upon the mind an irresistible convietion, or absolute neccs-
8ity, will justify a Court in presuming that it was the intention of
UU Legislature that their acts passed at the same session, should
abrogak and annul one another. l Wright v. Broeter,, 145 Tex, 142.
196 S.W.2d 82 (1946).
For still an additional reason we believe the taxing
statutes (Arts. 7064,7064a, and 4769) have not been repeaied and
that the gross premium taxes levied by &B. 285 will be effective
ii approved by you. The Insurance Code (S.B. 236) finaL passed
the Legislature on May 23, 1951. The Omnibus Tax Bill rH.B. 285)
was tiPally passed by the Legislature on June 6, 1951, by a vote of
1i6 yeas and 17 nays’ in the House, and 29 yeas and 2 nays in the
Senate, This latter act (I-LB, 285) expressly anended r;rticles
7064, 7064a, and 4769 so ~41to increase the tax levied therein.
(%&ions XV, .XVIII, and XX11of the Omnibus Tax Bill.)
Thus it is to be observed that H.B. 283 is the latest cx-
pression of the Legislature, aad to the extent of any conflict as be-
tween H.B. 285 snd those prhsions of the Insurance Code, above
qn&d, I-LB. 285 will prevail, This accords with the well estab-
lished rule that the latest expression of the Legislature will pre-
mfl, and the 8trClte last passed will prevail over a statute passed
priolr to it, krespoetive of whether’ the prior statute takes effect
before or dter th latex statute. ,‘Yaia v. State, 28 Tex. 3551
Wtight v. Broeter, 145 Tex, 142. 19b S*W.Zd 5% (1946); People v.
bnmer. 3288~l2.160 N.E. 60 {1928)I Nawbau+r v. Sn
n 161 N.E. 826 (1928); State v. Schaum0,
89 So* 536 (1921)I State T* Ma-34 N M. 378 2 dl .?ac. 454
(1929)l 1 Sutbcrlaad S#akrDoryConstrue&n (3~; h d. 1943) 484.
See. 220: A#*y Gen. Op. V-990 (1950) and authorities~ there cited.
Hon.~Allan Shivers, page 6 (V-1199)
Further. in the event of conflict between the Code and
the tax statutes as amended by House Bill 285, the provisia of
the tax staktes will prevail for still aaother reason, One of the
purposes exprersed in the title of the Code is the preserraticm
oisubstantive law existing prior to the adoption Ot the Code. Re-
peal of tax statutes is not a subject expressed in the title, A bill
upon one subject may not be passed under a title expressing
another, Themforre say provisioa of the Code that may be raid to
have ns its purpose the repeal of the tax statutes is invalid. Texas
Constitution, Article III, SecUor 351 Gull brsuramea Compaq v,
James, 143 Tex, 424, 185 S.W.2d 966-j.
Ia view of tbt foregoing authorities, we do not believe
@at the Ixasrrance Code (S.B. 236). if it becomes law. will a&ct
the validity or enforoeability of the gross prrmiam rece,ipk# taxes
&v&d by House Bill 285,. and your question is aetordingly answered
t the negative,
SUMMARY
Senste Bill 236 (The Insurance Code) adopSad at the
Rogulsr Session of the Fifty-second Legislature, if it be
comaa law. will IOL a&et tb validity and enforceabiiity of
the groos prem4um receipts taxes lsvied in House Bill 285,
A&s 5fnd Legislature (Omaibus Tax Law).
Yours very truly,
PRICE DANIEL
Attoeney General
&&.&Lx!!. z7jkd%q
APPROVED8 Charles D. Mathews
First Assistant
W. V. Geppert
Taxation Division r.
&A -c-CCL-
Price Daniel Everett Hutchinson
Attorney General Executive Assistant
CDMEH:b