Untitled Texas Attorney General Opinion

Honorable Lloyd G. Rust, Jr.
County Attorney
Wharton County
Wharton, Texas
Opinion No. C-91
Re: Whether Article 2351a-1,
Vernon's Civil Statutes,
as amended in 1961, Is
constitutional, and a
Dear Mr. Rust: related question.
You have asked (1) whether Article 2351a-1,
Vernon's Civil Statutes, as amended in 1961, is consti-
tutional, and, (2) if so, whether an election Is neces-
sary to authorize the issuance of time warrants there-
under.
Article III, Section 35 of the Texas Constitu-
tion imposes a sharp limitation upon the form of bills
passed by the Legislature:
"No bill . . . shall contain more
than one subject, which shall be express-
ed In its title. But if any subject shall
be embraced in an act which shall not be
expressed In the title such act shall be
void only as to so much thereof as shall
not be so expressed."
The challenged enactment, codified as Article
2351a-1, Vernon's Civil Statutes Is found in Acts 1961,
57th Legislature, p. 492, ch. 234, 81. In pertinent part,
It is quoted as follows:
."Chapter 234
H.B. No. 111
"'AnAct amending Section 1 of Chapter 360, Acts
of the Forty-seventh Legislature, Regular Session,
-452-
Hon. Lloyd G. Rust, Jr., page 2 (C-91)
1941, to provide that the Commissioners Court
In all counties of this State may provide
fire protection and fire-fighting equipment
for the citizens of the county outside of any
incorporated city, town or village therein; to
provide that this equipment may be paid for
by time warrants of the county as provided by
law; and declaring an emergency.
"Be it enacted by the Legislature of the State of Texas:
Section 1. Section 1 of Chapter 360, Acts
of the Fort -seventh Legislature, Regular
Session, 19t 1 (codified as Article 2351a-1
of Vernon's Texas Civil Statutes), is amend-
ed to read as follows:
'Section 1. The Commissioners Court in all
countiesof this State'shall be authorized to
furnish fire protection and fire-fighting
equipment to the citizens of such county re-
siding outside the city limits of any in-
corporated city, town or village within the
county and/or adjoining counties. The Com-
missioners Court shall have the authority to
purchase fire trucks and other fire-fighting
equipment by first advertising and receiving
bids thereon, and is hereby authorized to ls-
sue time warrants of the county and to levy
and collect taxes to pay the interest and prln-
cipal thereon as provided by law. The Commls-
sioners Court . . .I'
The caption of Article 2351a-1 avers that the Act Is
to " . . provide that the Commissioners Court In all counties
of this State may provide fire protection and fire-fighting
equipment for the citizens of the county outside of any in-
corporated city, town or village therein . . .' In the body
of the Act, the quoted sentence is continued by the addition
of the words "and/or adjoining counties." If the Act is
repugnant to the Constitution, It is by virtue of these add-
ed words.
The phrase "and/or adjoining counties" Is used three
times in Article 2351a-1. We are concerned here with only
the first occasion of its use; in the last two instances
the phrase is used in connection with clearly proper contracts
that the Commissioners Court may enter into with a view to
providing fire protection to the citizens of,the county.
-453-
Hon. Lloyd G. Rust, Jr., page 3 (C-91 )
The caption to Article 2351a-1 indicates that the
benefits.thereunder are intended solely for the citizens
of a particular county who reside outside an incorporated
area. while the body of the Act applies not only to those
citizens, but also to similar citi%ens in adjoining counties.
Thus, the citizens of one county are placed in the position
of paying for fire protection for the citizens of adjoining
counties.
In Sutherland v. Board of Trustees, 261 S.W. 489
(Tex.Civ.App. 1924, error ref.), Justice Smith of the San
Antonio Court of Civil Appeals said, at page 490:
"The true test to be applied in cases
of this character is: Does the title fair-
ly give notice by its recitals to all persons
concerned, of the subject-matter of the act?
If by Its title It appears to affect only the
residents of particularly designated localities,
while the provisions in the body of the bill af-
fect other localities or territory, then the
title Is misleading and unconstitutional, In
so far as it affects the unnamed places."
In view of that holding, so clearly In point with the present
fact situation, It Is the opinion of this office that the pro-
visions of Section 35 of Article III of the Texas Constitution
have been violated.
This is not to say that the entire statute must fall.
If the unconstitutional portion can be excised, leaving the
remainder cawable of standing alone, then the remainder of the
statute may be left Intact. -Land&n v. Centennial Rural High
School District No. 2, 134 S.W.2d 353 (Tex.Civ.App. 1939, error
insm. judgm.cor.). The unconstitutional words "and/or adjoin-
ing counties" can be removed from the first sentence of Arti-
cle 2351a-1, and no damage is done to the basic act. It Is the
opinion of this office that the words "and/or adjoining counties,'
found in the first sentence of Article 2351a-1, Vernon's Civil
Statutes, render that statute unconstitutional, but that the
words are severable and their removal does not affect the valid-
ity of the remainder of the statute.
As to your second question, we find that,the 1961 smend-
ment to Article 2351a-1, Vernon's Civil Statutes, hereinafter
called the “1961 statute" states in part as follows:
t, The Commissioners' Court shall
have Che authority to purchase fire trucks
-454-
Hon. Lloyd G. Rust, Jr., page 4(C-91)
and other fire-fighting equipment by first
advertising and receiving bids thereon, and
is hereby authorized to issue time warrants
of the county and to levy and collect taxes
to pay the principal and-interest thereon
as provided by law. . . .' (hphasls added).
Article 2351a-4, Vernon's Civil Statutes, hereinafter
called the "1949 statute," was enacted In 1949, was in full
force and effect during 1961, and is still a va;ld and effec-
tive statute. It Is noteworthy that the words to
purchase fire trucks and other fire-fighting equlim&t '
appear in both statutes and there can be no question bui that
the 1949 statute "provides by law" for the Issuance of time
warrants for the purchase by counties of the identical type
of equipment contemplated In the 1951 statute. Nor can it
be questioned that the 1949 statute requires that time war-
rants issued for such purposes be authorized by an election.
Therefore, we think that the phrase "as provided by
law" appearing In the 1961 statute necessarily refers to the
1949 statute and that Issuance of such warrants for this pur-
pose must be authorized by an election as described in the
1949 statute.
The 1949 statute deals specifIca= with issuance of
time warrants by counties for the purchase of fire trucks and
other fire-fighting equipment and must take precedence In
regard to their issuance for that particular purpose even
though the procedurediffers from that provided by Article 23&a,
Vernon's Civil Statutes, entitled "Bond and Warrant Law of
1931, " which is the general law prescribing the procedure for
issuance of time warrants.
It Is the method of purchase of the equipment which is
the crux of the auestlon wresented here and we do not think
that the purposes~for which the equipment may be used follow-
ing its acquisition, as described by the two statutes, Influence
this result. It is true that the 1949 statute in broad language
states that, once acquired, the fire-fighting equipment Is to
be used for the "protection and preservation" of county proper-
ty located within the county but not within any Incorporated
city or town, while the 1961 statute authorizes the furnishing
of 'fire-fighting equipment to the citizens of such county
residing outside the city limits," etc. But these stated pur-
poses are so broad as to be overlapping in their meaning.
.455-
Hon. Lloyd G. Rust, Jr., page 5 (c-91)
Once the equipment is acquired, the Commissioners
Court may well decide, In the exercise of its sound discretion,
that the "protection and preservatlon" of county property re-
quires that they "furnish" the equipment "to the citizens of
such county,"and vice versa. It is well known that any fire
may spread and that under certain conditions, such as where
high winds arise In times of drouth, it may spread for many
miles and a fire Involving either county property or prl-
vate property may endanger all other property over a large
area.
This answer to your second question is further justi-
fied by another consideration. The issuance of time warrants
is often but the first step in binding a county to the payment
of negotiable bonds, for under the provisions of Article 2368a,
V.C.S., such time warrants, If they represent a "legal debt"
of the county, may be refunded by the issuance of such bonds.
Viewed In this light, as a part of the procedure leading to
issuance of negotiable bonds , we think that the requirement
of an election appearing in the 1949 statute is ,not removed
beyond any doubt by the words "as provided by law" of'the
gbl statute. hnd the Supreme Court of the United States has
held that since the existence of power In political subdlvi-
slons to issue negotiable bonds is extraordinary, "an
as to whether a law confers such power will be resoT%%gst
ve
Its existence. City of Brenham v. German American Bank, 144
U.S. 173, 549, 12 S. Ct. 553, 975. (Emphasis added).
SUMMARY
Article 2351&l Is unconstitutional
insofar as it is broader in scope than
the caption of the enrolled bill. By
excising the words "and/or adjoining
counties" from the first sentence of
the Act, the statute can be made to con-
form with constitutional requirements.
With the words so removed the Act can
stand alone and is valid.
An election is necessary to authorize the
issuance of time warrants under Article
2351a-1, V.C.S.
Yours very truly,
WAGGONER CARR
Attorney General
-456-
Hon. Lloyd (3.Rust, Jr., page 6 '(C-91)
MLQ:RM:a:ma
APPROVED:
OPINION COMMI!PTEE
W. V. Geppert, Chalman
Cecil Rotach
Joseph Trlmble
APPROVED FOR TRE ATI’ORNEYGENERAL
By: Stanton Stone
-457-