Untitled Texas Attorney General Opinion ( 1943 )

Honorable F. T. Graham
county Athttorney
Cameron County
Brownsville, Texas
Dear Sirr opinion No. o-5043
Ret Is Senate Bill Xc. 146, Acts
of the 42nd Legislature, Regular
Session, 1931, repealed by Senate
Bill Mc. 44, Acts of'the 46th Leg-
islature, Regular Session, 19437
And related questions.
Your letter of recent date requesting the opinion of this de-
partment on the questions stated therein, reads in part as follcws~
'*The42nd Legislature, at its Regular Session in
1931 and by its Senate Bill No. 146, Chapter 307, page
769: enacted a law,the substance of which aas to pro-
vide that the 103rd Judiaial District Court for Cimer-
on County should be the Juvenile Court for Cameron
County to handle all cases arising under the provisions
of Title 43 and all cases arising under the provisions
of Article 1063 of the Code of Criminal P?coedure; this
Act also provided as aompensationforthe Judge of such
Juvenile Court the mount of #l500;00 per year and pro-
vided that such sum should be paid to the Judge of said
Court from the General Funds of Cameron County.
"The last Legislature (the 48th), at its Regular
Session and by Senate Rlll Rc. 44, Chapter 204, page 313,
enacted a law, the general substance of which changes
the procedure in the handling of delinquent juvenile
cases and under the provisions of this new law various
Articles of the Code of Criminal Procedure, including
lirticle1063, are expressly repealed, also Article 2329
of the Revised Statutes is repealed.
"Under the new law (Senate Bill DoJo.
44) passed by
the 46th Legislature, it is provided in Section 4 that
in counties having more than one District Court that the
County Juvenile Board shall designate either one of such
District Courts or the County a0ur-tto be the Juvenile
Court for such county.
. -
Honorable F. T. Graham, Page 2 (O-6043)
"Cameron County has tvo District Courts, to-witi
the 103rd Judicial District Court Which sits in Cameron
and Willacy counties and the Criminal District Court
which sits in Cmaeron, Willacy, Kenedy, Kleberg and
Hueces counties.
*The question, therefore, has arisen as to whether
or not the provision of the new legislative enactment in
Section 24 wherein it is provided 'all laws and parts of
laws in conflict herewith are also repealed' has the ef-
fect of repealing the hereinabove mentioned Act of the
42nd Legislature which aonstituted the 103rd Judicial
District Court in Cameron County as the Juvenile Court
for Cameron County and whether or not the provisions of
said Act of the 4Znd Legislature in fixing an annual ccm-
pensation for duties performed as Judge of such Juvenile
Qurt had been repealed by the general provisions of the
above mentioned Act of the 48th Legislature.
"I am of the opinion that the above mentioned Act of
the 42nd Legislature, having been mpre or less special in
nature in that it purported to affect only the 103rd Judi-
cial District Court in and for Cameron County, would not
be considered as being repealed by the general provisions
of the Act of the 46th Legislature. However, in view of
the fact that the Act of the 46th Legislature purports to
establish a State-wide procedure for handling delinquent
children, it might reasonably be argued that this Act was
intended tc and did repeal the provisions of the Act of
the 42nd Legislature vesting exclusive jurisdiction in
juvenile matters, insofar as Cameron County is concerned,
in the 103rd District Court of Cameron County.
"In connection with these matters, I wish to call
your attention to the f~lloling matter. Article 5139-B,
Revised Statutes of Texas, 1925 (Acts of the 47th Iegis-
lature, page 552, Chapter 349, Section 1) provides in
substance for the creation of a Juvenile Board in count-
ies having a population of between 74,000 and 63,000~
according to the last Federal census, Cameron County lauld
fall within the population brackets provided for in this
Act. This Act 1ikewMe purports to constitute the Judges
of the District Courts in any county, together with the
Judge of the County Court, as such Juvenile Board and to
provide an armual compensation for the District Judges as
members of such Board of $600.00 per annwn in addition to
all other salaries and compensation received by such Dis-
trict Judges and provides that said SUU shall be paid to
such Judges monthly frcmthe General Punds of the County.
Hon. F. T. Graham, Page 3 (0-5043)
"The provisions of this Statute have been overlooked
by the District Judges and the County Judge of this Ccunty
and no Juvenile Board has ever existed as such in this
County and no compensation has ever been paid to any Judge
under the provisions of this Aot.
"It so happens that the writer's brother is the Judge
of the 103rd District Court, having jurisdiction in Cameron
and Willacy Counties, and because of the relationship, I am
somewhat hesitant to advise the District Judges, the County
Auditor and the Coiwnissioners
' Court as to what effect the
provisions of the hereinabovereferred to Act of the 48th
Legislature in connection with Juvenile Courts has upon the
existing Jwenile Court in and for this County. I would
therefore greatly appreciate your advice and opinion on the
following questions, to-wits
"1. Is the Juvenile Court and the compensation for the
Judge thereof in and for Cameron County, as established by the
above referred to provisions of the 42nd Legislature, repealed
by the above. ,nentionedActs of the 48th Legislature?
*2. Are the provisions of Article 5139-B hereinabove re-
ferred to repealed by the previsions of the Act of the 48th
Legislature, and if not, are such provisions mandatory on ,
Cameron County, or merely directory?
1)e . . .I
Senate Bill Rc. 148, Acts of the 42nd I.egislature,Regular Session,
1931, reads as follows:
"Section 1. The juriediction heretofore vested by law
in the County Court.of Cameron County the Criminal Distriot
Court of Cameron County, and the County Court of Cameron
County at Law, Cameron County, Texas, under the provisions of
Title Forty-three (43), Revised Civil Statutes of Texas, is
hereby divested from such Courts, and vested in the District
Court of Cameron County for the 103rd Judicial District of
Texas, which when disposing of the casss arising under the
provisions of said Title 43, shall bs the Juvenile Court for
Cameron County, and shall administer all cases arising under
the provisions of said Title, and of Article 1083 of the
Code of Criminal Procedure of Texas.
*sea. 2. For the extra services hereby imposed upon the
Judge.of the District Court of heron County, 103rd Judicial
District of Texas, when sitting as the Juvenile Court of Cam-
eron County, the Judge of said' Court shall bs paid fras the
General Funds of Cameron County the sum of Fifteen Hundred
(#l,500a00) Dollars per annum, and no mores
Hon. F. R. Graham, Page 4. (O-3643)
"Sec. 3. The faot that there are twc special Courts
in Cameron County; that is, the Criminal Distriot Ocurt
of Cameron County, and the County Court of Csmeron Cxnty
at Law, the special jurisdiction of which with regard to
Juvenile Courts is uncertain, andthat the Judge of the
County Court of Cameron County in discharging his duties as
County Judge and presiding officer of the Conrsissioners~
Court of said County is overburdened with administrative
duties, areaBan amergenoy and an imperative publio neoes-
sity that a Juvenile Court for said County shall be desig-
nated by law, and that the Constitutional Rule requiring
Bills to be read on three several days be suspended, and
said Bule is so suspended, end that this Act take effect
and bs in force from and after its passage, and it is so
enacted."
Senate Bill No. 44, Acts of the 48th Legislature, Regular Session.,
1943, isr
"An Act the purpose of which is to change the
method of handling delinquent children from the pres-
ent oriminal procedure to guardianship in order to
sscurs for each child ooming withinthe bat such care,
guidanoe, and control as will servs the ohild's wel-
fare and the best interest of the State; providing for
a Juvenile Court in each county of the stats in the
County or District Courts already establishedi defining
certain terms; providing for the procedure in oases of
delinquent children3 manner of hearings dispositional
power of Juvenile Court3 selection of custodial agency3
providing for support of children cowitted to oustodi-
al agency, prescribing that records shall be oonfiden-
tial: permitting physioal and mental examinations of
children upon order of the court3 prescribing plaoes of
detention3 ccurt session; co-operation3 oontempt3 methods
of appeal; saving olausei re-enaotdng that portion of
Artiale 2329, Revised Civil Statutes, 1926, dealing with
dependent and neglected childrsn3 repealing clause; and
declaring an emergency, . . ."
Senate Bill No. 44, supra, provides in part:
" . . . ."
"Sec. 4. Establishsent of Juvenile Courts.
There is hereby established as follows in eaoh county of
the Stats a court of record to bs known as the Juvenile
Court, having such jurisdiction as may be neoessary to car-
ry out the provisions of this Act.
Honorable F. T, Graham, Page 5 (o-6043)
"In counties having juvenile boards, suah boards
may designate the County Court or one or more of the
District Courts to bethe Juvenile Court or Courts for
such county, and such designation may bs changed frcm~'
time to time by such juvenile boards. In all other ocun-
ties the District Court or the County Court shall bs the
Juvenile Court as agreed between the judges of eachres-
pective courts, but until such time such County Court and
District Court shall have concurrent jurisdiction in
casss of children coming within the terms of this Act.
"It is provided, however, that the jurisdiction,
powers and duties thus,conferred and imposed upon the
established courts hereunder are superadded jurlsdic-
tions, powers and duties, it being the intention of ths
Legislature not to create hereby another office.
'seco 22. Saving Clausea In all'cases where the
court has continuing jurisdiotion of the children already
adjudged delinquent, aw of the Acts herein repealed shall
continue in force as applicable to such ahildren, and the
provisions of such Statutes may continue to be exercised
with reference to all such children where such jurisdio-
ticn has already attached.
"Sec. 23. Constitutionality. If any section, sub-
division or clause of this Act shall be held to be uncon- d
stitutianal or invalid, such decision shall not affect the
validity of the remaining portions of the Act.
"Sec. 24. Laws Repealed. Articles 1063, 1084, 1085,
1086,.1088, 1060, 1090, 1091, 1092, 1093 of the Code of
Criminal Procedure, and Article 1087 of the Code of Crim-
inal Procedure as amended Acts 1927, 40th Legislature,
Chapter 163, Section 1, are hereby repealed.
"Articles 2329 and 2338 of the Revised Civil Statutes
of Texas, 1925, are hereby repealeda
"All laws and parts of law in conflict herewith are also
repealed.
"Sec. 24-A. This Act shall in no wise alter or affect
existing laws with reference to dependent or neglected ohil-
dren as that term is defined by Article 2330, Revised Civil
Statutes, 1925, and the District Court only shall have orig-
inal jurisdiction in all proceedings wherein it is sought to
Honorable F. T. Graham, Rage 6 (o-5043)
have a childadjudged to be a dependent or neglected
child, and its findings in suoh cases shall be enter-
ed in a book kept for that purpose to be known as
'Juvenile Record.'
I *
. . . .
Article 5139b, Vernon's Annotated Civil Statutes, provides:
"In any county having a population of not less
than seventy-four thousand (74,oOO) inhabitants and not
more then eighty-three thousand (83,060) inhabitants,
according to thu last preceding Federal Censug, the
Judges of the several District Courts of suoh county,
together with the County Judge of suoh county, are
hereby aonstituted a Juvenile Board,for such county.
The annual salary of eaah of the Judges ofthe Ms-
triot Courts of such county, as members of said Board,
shall l-aSix Hundred (#600&O) Dollars, which salary
shall be in addition to all other salaries and oompen-
sation received by said District Judges, snd said addi-
tional salary shall be paid monthly out of the General
Funds of such County, upon the order of the tksamission*
ers' Court."
It ~111 be noted that Senate Bill No. 44, supra, expressly re-
peals a number of statutes enumerated therein and all laws and 'partsof
laws in oonfliot withthe Aot ars also repealed. We are familiar with
the general rule mentioned in your letter that enactment of a general
law does not ordinarily operate as the repeal of a particular or special
law, by implication, although both relate to the ssme subject matter.
Onthe contrary, both statutes are permitted to stand, snd the general
law is applicable to all oases not embraced by the specific act. In
other words, the prticular act is construed as oonstituting an excep-
tion tothe general law. This is said to be a settled rule of oonstruo-
tion, lmsed upon the presmsption that a speoial statute evidences the
intention of the Legislature more clearly than a general one, and there-
fore should control. However, where it is apparent that a statute is
intended to embrace all the law upon the subject with which it deals,
it repeals all former laws relating to the same subjeot. Under this
rule, a statute that covers the subjeot matter of a former law and is
evidently intended as a substitute for it, although containing no ex-
press words to that effeot, operates as a repeal for the former law to
the extent that its provisions are revised and its field freshly cover-
ed.? Accordingly, parts of the original act that are omitted for the
new legislation are to be considered as null. If the latter act is
clearly intended to presaribs the only rules which should govern, it
repeals the prior statute, although the two are not repugnant intheir
provisions. It is apparent that Senate Bill No. 44, supra, shows by
.
Honorable F. T. Graham, Rage 7 (06043)
its context that it uas intended to smbra~oeall the law upon the
subject dealt with. Therefore, es stated in the oese of State v.
Houston oil Company of Texas, 194 S,W. 432s
"The rule is well settled that, when e subsequent
statute shows by its context that it was intended to em-
brace all the law upon the subject dealt with, such stat-
ute will, by implication, repeal all former laws relat-
ing to the same subject. The correctness of that rule
is not controverted, snd it is unnecessary to cite auth-
orities in support of its"
Ws quote from the case of First National Bank v. Lee County Cot-
ton Oil Company, 274 S.W. 127, as followsr
". e . Where en act is passed covering the whole
of a particular subject or field of legislation, it is
customary to insert e general clause repealing all acts
or parts of acts incons;stent therewith, and such a
clause is effective in repealing inconsistent enactments,
in the absence of any constitutional provision against
such method of repeal; but the repeal extends only to
those acts on the same subject, or prts of suoh acts,
clearly inconsistent and irreconcilable with the provi-
sions of the repealing act and only to the extent of the
conflicting provisions. A statute is repealed by impli-
cation whenever it becomes apparent from subsequent leg-
islation that the Legislature doss not intend the earlier
act to remain in forces e 0 0 Though repeals by implice-
tion are not favored, it is necessarily the result in
any case of repugnancy or inconsistency between two suo-
cessive statutes, or in any oass where the intention of
the Legislature is manifest that e letter statute should
supersede an earlier one."
In view of the foregoing authorities, it is our opinion that Sen-
ate Bill No. 148, supre, is repealed by Senate Bill No. 44, supra, inso-
far as said Senate Bill Ibib.
148 is in conflict with said Senate Bill No.
44.
It is our further opinion that the 103rd Judicial District Court
of Camercn County is not a juvenile court by virtue of Senate Bill No.
148, supra, as that portion of said Senate Bill No. 148 making said
court the juvenile court of Cameron lkunty is repealed by Senate Bill No.
44, However, the said 103rd Judicial District Court of Csmeron County
has original jurisdiction with reference to dependent or neglected
children as that term is defined by Article 2330, Revised Civil Statutes,
1925, wherein it is sought to have a child adjudged to be a dependent or
neglected child. Apparently under Senate Bill No. 148, supra, the judge
was compensated for his services by virtue of said ect when sitting es
Honorable F.T. Graham, Page 8 (o-5043)
the juvenile court of Cameron County, astie 103rd Judicial District
Court of said oounty is no longer the juvenile court by virtue of
Senate Bill No. 148, supra, the district judge would not be entitled
to any compensation under the provisions of said Act.
With reference to Article 5139b, Vernon's Annotated Civil Stat-
utes, it is our opinion that said Senate Bill NO. 44, supra, doss not
repeal said statute in that said statute pertains 'baounty juvenile
boards and not to juvenile courts. However, Cameron County hes e pop-
ulation of 83,202 inhabits&s according to the 1940 Federal Census.
Therefore, Cameron County does not come within the population brackets
mentioned in said statute. 4s Cameron County does not come within the
population braokets mentioned in said Act, the 883118
would not be appli-
cable to Cameron County.
Yours very truly
ATIOENEY GENERAL OF TEEAS
BY
s/&dell Williams
Ardell Williams
Assistant
APPROVED AUG 7, 1943
s/Grover Sellers
FIRST ASSISTAET
AlTOBEEY GEEEBAL
AW:db:egw Approved Opinion Committee
By BWB Chairman