Untitled Texas Attorney General Opinion ( 1939 )

NO.. 3081
This opinion holds:
That there ia serious doubt es to the
constitutionality of House Bill- No. 190 of
the Forty-sixth Legislature or Texas, com-
monly known as the %ot Check LeW, but that
this d.vpertment should resolve that doubt
in favor of the validity of said Act.
OFFICE OFTBEA'ITOBBBYGENEBt&
November 8, 1939
Honorable Earl Street
Assistant District Attorney
Dallas, Texas
Dear Sir:
Opinion No. O-1141
I&: Constitutionality of House
Bill No. 190, Forty-sixth
Legislature.
Your request for an opinion upon the constitution-
ality of House Bill No. 190 of the Forty-sixth Legislature
of Texes``.commonly known as the "Hot Check LaW, has been
received by this department..
The bill is not copied herein ior the reason that
you are fsmiliar with its terms. You raise three constitu-
tional questions, to-wit:
"1. Is the Bill unconstitutional
and in violation or Section 18 of Article
I or the Texas Constitution, which provides
that no person shall ever be imprisoned for
debt?
"2. Is the Bill unconstitutional and
in violation of the due process clauses in
both the State and Federal Constitutions?
Is the Bill unconstitutional and
in v&ion of Section 10 of Article I of
the Texas Constitution, which provides that
in all criminal prosecutions that the ac-
cused shell be confronted by the witnesses
against him?"
Your questions present serious difficulties. The
authorities seem to recognize that "the establishment of
presumptions and rules respecting the burden of proof is
clearly within the domain ot the state governments".~ (Se-
lected ESSEIFRon Constitutional Law, Volume 2, page 3500).
And that *it is within the acknowledged power of every legis-
lature to prescribe the evidence which shall be received
Honorable Earl Street, November 8, 1939, Pege 2
and the effect of that evidence in the courts of its own
government.w (Fang Tue Ting vs. United States, 149 U.S.
09s).
The application or these rules appears more dif-
ficult than the statement oi them.
There ere Texss ceses ldlich support the consti-
tutional power of the Legislature to enact House Bill No.
190, and indicate that, possibly, the constitutional guer-
entbes have not been infringed. See:
Patterson vs.,Stete, 17 Tex. Cr. Rep. 102
McCoy vs. ,Stete, 294 S.W. 573
May vs. State, 15 Tex. Ct. App. 430
On the other hand there ere Texas cases which seem to deny
to the Legislature the donstitutional power to enact legis-
lation similar to House Bill No. 190. See:
Buclmer vs. State, 72 S. W. (2d) 274
Holland vs. State, 2 S. VI. (2d) 248
Torres vs. ,Stete, 18 8. W. (26) 274
We are attaching to this opinion leading cases
from other jurisdictions on this question.
Although the Attorney General is a member of the
executive department of the State, the duties imposed upon
him ere judicial es well es executive. In considering the
conetltutionelity or a statute, this department is perform-
ing a quasi judicial function , and should be governed by the
well recognized rules established by the courts governing
such construction. One of those rules is that every reason-
able doubt as to the validity of the act must be resolved
in favor of sustaining it. See:
Logan vs. State, 111 S.W. 1028
Merrs vs.,Yume, 25 S. ii. (2d) 215
This department, when *called upon to pronounce
the invalidity of in act of legislation, passed with all
the forms end ceremonies requisite to give it the force of
law, will approach the question with great caution, exam-
ine it in every possible aspect, end ponder upon it es long
es deliberation end patient attention can throw any new
light upon the subject, and never debhere a statute void
unless the nullity and invalidity of the act are placed, in
their judgment, beyond reasonable doubt. A reasonable
doubt must be resolved in favor of the legislative action,
and the act be austeined.n The above is particularly true
when a criminal law is being considered.
We recognize the doubts above suggested, end be-
cause of these doubts we hold the Act constitutional, not
only because of the wall recognized rules of construction
making it our duty to do so, but because this department
hesitates to discourage the district end county attorneys,
or other enforcement officers of the State, in the enforce-
ment of any criminal law, if there exists any reasonable
doubt as to the validity of the law. It is only when it
is considered by this department that there is no reasonable
doubt that it will hold e criminal lsw invalid.
Honorable Earl Street, November 8, 1939, Page 3
TNSting that this setistectorily answars your
inquiry, we are
Yours very truly
ATTOTINEYCWERALOFTZAS
BY (Signed) A. S. Rollins
A. S. Rollins
Assistent
This opinion has been considered in conference,
approved, and is now ordered riled.
(Signed) Gerald C. Mann
Gerald C. ldann
Attorney General of Texas
These authorities support the proposition that
the prime facie presumption set out in House Bill No.
190, of the Forty-sixth Legislature, is unconstitutional.
The strongest cases are underlined:.
Section 10 or Article I, Texas Constitution
Section 19 of Article I,.Texes Constitution
Article V, United States Constitution
56 A.L.R., pages 1141-1149
12 Tex. Jur., Section 216, pages 324-325
39 Texas Jur., Swindling and Cheating,
Section 52, pages 1096, 1099
18 Tex. Jur., Best Evidence Rule - Funda-
mental Princinle - Section 232.
pages 356-366-
18 Tex..Jur.. Section 226. Constitutionel
Mtiole I, Section 10, es exclud-
ing hearsay documents, page 358
Fortune vs. State, 66 S. W. (2d) 304
bolland vs. State, 2 S. W. (26) 248-249
Buckner vs. State, 72 S. W. (26) 274
Tomes vs. State, 18 5. W. (2C) 274
Banfelt vs. United States, 53 Fed. (2d) 811
Hopt vs..People of Utah, 110 U.S. 574
Chester v;i7Stete, 5 S.W. 125, 23 Tax. App.
Wilburn vs.~State, 77 S.W. 3 (Tex. Case)
Hayes vs. State, 164 S.W. 841,~73 Tex. Cr. Rep..
Boyd vs. %ete 8 S W (2d) 110
Cline vs. Stat;, 36'S.'W. 1099, 3'7 S. W. 732,
36 Tex. Cr. Rep. 320, 61 Am. St. Rep..850
Meg vs. State, 15 Tex. App. 430
Dissenting opinions in Bullock VS. People, 11 Pac..
(2d) 441..
Casey vs. United States, 276 U..S..416
Glover vs. State, 69 S. W. (2d) 136, 125
Tex. Cr..Rep. 605
Stevens vs,.Stete, 80 S. W. (2d) 980, 128
Tex. OCR. Rep. 311
These authorities support the proposition that
the prime facie presumption set out in House Bill No,
190, of the Forty-sixth Legislature, is constitutional.
The strongest cescs ere underlfned:
blccCovvsggt.ete, DX3Tex. Cr. Rep. 593
8%'
Mar vs. Stste: 1; Tex. Ct. App. 430
Floeck v;;, Eta$e,7z Tex. Cr. Rep. 314,
. .
Newton vs. State, 98 Tex. Or. Rep. 582,
267 6. W. 272
Sulliven vs. State, 100 Tex. Cr. Rep. 419,
273 8. W. 566
, 17 Tex. Cr. Rop. 102
66 a. w. 517
Faith vs. State, 32 Tcx. 373
Dunes vs. State. 14 Tcx. Cr. Rec. 464. 46
429
E.
Johns vs. Stete, 55 Rd. 350
Robertcon VS. People, 20 Colo. 279, 38 P. 326
State vs. Beech, 147 Ind. 74, 46 N.E. 145
36 L.R.A. 179
Auburn Excise Costars. vs. Merohant, 103 N.Y.
143, 8 N.E. 484, 57 Am. Rep. 705
Snyder vs. Massachusetts, 291 U.S. 98, 78
L. Ed. 674, 54 S. Ct. 330, 90 A.L.R. 575
OrNeil VS. United States (C.C.A.) 19 Fed.
(2d) 322
Corey vs. United States, 2P6 U. 9. 416
Heyer VS. State, 114 Neb. 783, 210 N.W. 165
Hegner vs. United States, 285 U.S. 427, 52
S. Ct. 417, 76 L. Ed. 861
Sbate VS. Guarenerf ( R. I.1 194 A. 589
State vs. Spiller, 146 Wash. 180, 262 P. 128
14 Am. Jur. 890-895