Untitled Texas Attorney General Opinion ( 1944 )

OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
GROVER SELLERS
.4TTORNLY GENER.bL
HonornbleGee. R. 2heppard
cOI2ptrOiibrOr Public Aocounts
Aiistin,Texas
Rear Sir:
the prsh of Chlropractlc,has
been deolare&qral?;tdby the
/met or Crininaq Appeals, is
thenOomptrollerof,FublLcAccounts
/,6iW$or&zed to issud warrsnts in
( .: pagpent or claims for payment
\aGainst the tees approprlsted
\ under said Aot and another
'._
-
letter,.lated
"~ .'
.
.
Vernon's AnnotatedCivil Statutes, provides as follows: _
. '?:?h&the court irom'whlah~anappeal has or
may be.taken has been or shall be deprived of
jurisdictionover any case pending such au-aesl,
and when such case has or may be determined by
the Court of Criminal Bppeals, the mandate of
said sppellnte oourt shsll be directed to the
court to,which jurisdictionhas been or muy be,
given over such case."
,
Hon. Ceo. H. .Zheppard,
Paae 2
Also, 38 arc familiar with I;rticle849, Vernon's
AnmotSted Code of Criminal Procedure, provides as fol1ov.s:
"hen the
Appeals-is rinaP%%l``kt``a``~tlCgOfOCUT~l
,
proper certlrlcateof the prooeedlngshad and
judgment rendered, and laailthe aame to the clerk
of the proper court.” (Rmphasisours.]
~Ordlnarily a judgment oannot be ssid to be rinbl In
the sense that It is conoluslre of the rights of the port&s
until it has reached that stage at which It oan neither be set
aside nor reversed on appeal. Cases olted 26 Tex. Juris. p.
81. And so long as the right to revision endures, there is
Wore than s mere possibility*that the udgment may ultimate-
izdp7;et aside. Rablnowitz t. i&rnsll 3Corn.. App.) 13 3. Y.
, reversing 2 S. ‘i!. (2d) 930.
The Court.of Criminal Appeels of this State in
Cause No. 22,775, styled Rx parte W. B. Halsted, delivereda
judgment on June 7, 1944, in which they held unconstitutionsl
Arts. 45128-l to 4512a-18, Vernon's Annotated Revised Civil
Zitatutes,known as the "ChiropraotlcAote. 3e auote rrom
said opinion, in part, 88 followsr
0. . . . _:
eds laudable and praiseworthyas was the legis-
lative purpose, yet suoh raots furnish no reason or
besls to violate the Constitution or this state to
attain thst objective. YhSn the Constitutionspeaka,
It is supreme. An enduring and lasting government
requires that it so remain.
*%hen this Aot is thus construed as'an overall
pioture, ohlropraotloend the practloe thereor is
either definite or indeilnite, oertaln or uncertain.
If indefiniteor unoertain, it falls by reason
thereof. If it be d&finite and certain, it violates
the ncn-preferenaeoaause or Art. 16, Sec. 31, of
the constitution or this Ztate.
"It follows, from what has bean said, that ive
hold tile dot unconstftutionaland void. There exists,
therefore,no velid law denouncing as a crime the acta
char'P.edagainst relator, and he is entitled to be
discharged.
.I. . . ..,
Hon. Dee. 6. Yheppard,Fee 3
Opinion Xo. O-4715, by this Ceoartment,reads,
in part, 8s r0ii0ws:
"Under the statutes and rules above referred
to and set out, it wss nlaaethe duty of the oounty
auditor to see that no payments of salaries were
made to said oounty oomaissionersin exoess of
those provided for by law. Salsrles~havingbeen
paid to the Commissionersof Hsys County in excess
of those provided for by law, we hold that the
~Countp Auditor Is liable ror all suoh suma so paid,
insorer as he aoted malloiously,oorruptlg or neg.0
llgently In permltflng said payment to be made. It
is our further opinion, however, that the aame rule
of good faith would apply to him as we have herein-
above held should apply to the County Commissioners,
in that said Auditor would not be liable to pay any
or seia suma.~paiato said Commissionersprior to the
date he may have reoeived authoritativeadvice from
the County or Distrlot Attorney, or the Attorney
+'Ceneral, that the.law under which seld excess pay-
ments were made to said Commissionerswas unoonsti-
tutional, or that same no longer applied to Days
County by reason of the ohanee in the populationor
valuation braoket, whiohelr8.r
was,..firstIn point of
time.*
Unaer the raots as herein presented, a motion for
rehearing was riled wlthln the fifteen day period prescribed
by statute, end.tha above judgment of the Court of Criminal
Appeals is not final, but ws think that it euthoritlvely
advises the C@nptroller or Pub110 Aooounts, Texas Board of
ChiropracticZxaminers and everyone else that said %hiro-
practio Act" Is unoonstltutional.
In view of the foregoing, it is:.
the opinion of this
department that the Board of Chiropractic Examiners is not
authorized to incur expense5 against funds provided fcr Under
the Whiropraotic Act”.
Trusting this satisfactorilyanswers your inquiry,
we are