Untitled Texas Attorney General Opinion

OFFICE OF THE
AUSTIN
Honorable B. A. Btelabagen, Seoretary
Board or Dlrectora, Lover lhch8J8 val1.y
6/O Gomet Rico Hills
Beaumnt , Tsrbr
mu Sir1
we are plelwmd to our
opinion on the above stated
Houeo Bill 80. to amid the stat-
ntee relating to the Love thoFlty V&8 eaaated
by the 47th kgirrlat d.F~UMt&ZlCe8l
June 16, 1941, pa set 0 lIi%y8;June 18,
p88ed by the Sa y 2,. vetoed by the
Qoremor; July 3 Vet0 -9% 6708; 19
et0 -27 8yO8! 2 Mr8.
ted and a8 pnl8.d 0~0%'
ovlng m~lnloy &lU88l
We quote ‘the tlio ~l’OVi~10~8 Of t&l4 COnatitUtiOn Of
&ma8 which are applio&le to thie qU88tlCW
Artio1e 3, aeatfon 39. "HO la0 @lD808, by
the b%gi8latUl’O, @Xlxc& tb ~WDld 8&JpX’OPPir-
tlon act, Shall take &feet or go into fome
i
Honorable 8. A. SteInhagen, Pqe 2
Ulltil JlinOtJ day8 bftt3P th0 SdjOUraisllt Oi tba
8e88lon at vhioh It va8 enaated, ale68 In UIB
of an emergenay, which emergenay muat be express-
ed In a preamble or in the body of th& sot, the
LegIslahure 8hall. by a vote of two-thirds of
all the member8 elected to eaoh iiouse: othervise
direct; said vote to be taken by yea8 and naya,
and entered upon the journals."
Article 4, Section 14. "Every bill vhiah
shall have pa88ed both houses of the Legislature
shall be prerented to the &3Yernor for hi8 ap-
proval. If he approve he rhall 8igQ it; but if
he dirapprovo It, he shall return It, vith hI8
objeation8, to the Houlre in vhlah It osiglnated,
vhlch Hancle shall enter the ObjeCtIOn at large
upon its journal, and proceed to reconsider It.
If after such reconsideration, two-third8 of the
member8 pIW8Snt agree t0 pa88 the bill, it 8hd.1
be sent, vlth the objections, to the other House,
by vhIah likeWi8e it 8hall be reoonnidered; and,
1P tipproved by two-thirds of the members of that
Hou8e, It 8hall become a law; but Fn such 0~8~8
the vote8 of both Houses ehall be detex&ned
by yea8 and nay8, and the names of the member8
Yotlng for and agalnot the bill shall be entered
on the journal of eauh House respectively. l l l”
It I8 to be noted that In order to make offeotlvo the
emergency alause providLngl that the Act aball take effect immn-
dlatelg It must be liupported by a *vote of tvo-thiPd8 of all the
member8 eleoted to eaoh Hou8e" ; I.e., 100 members of the Hnuse
and 21 members of the Senate; wherea8, in order to override the
t%OYeFnor’8 Vet0 it i8 Ody XlOO~88M’y that the Bill I’WeiYS the
vote8 of "two-thirds of the membera present of the House ln
vhioh the bill originated." It.Ie to be noted that the Bill
under conaidewtlon when passed over the @ovenor' veto recelv-
ed suffloient votes In the HOUBO to override the Oovernor's veto,
but not sufficient votes to make the emergency clauoe effeative.
The quecltlon therefore resolve8 Itself a8 to whether we may look
to the vote upon the orlginal par8age of tbl8 Bill on June 16,
to determine vhether the emergency alause Is effeotive or vheth-
er Ita effect depends upon the vote8 on July 3, on the day It
WI8 pa8Sed over the l?oYeZTlOr'STOtO.
A #$I11 oontalning an emergency a1au8e pmvlding that
it shall take effect Inrmedlately upon Pas8age does be*ome m-
&lately effective If passed by a tVO-tMFd8 =jorIty of ea&'~
Honorable 13.A. Bteinhngen, Page 3
House of the Legi8lature. Worbe8 Y. Btate, (Tex. (It. Or. App.,
19341, 71 a. X. (2~) 872. The oourt8 ary not look behind the
facts or masons 8tated by the Legl8lature In fta emergency
clause providing for Irsedlate effect of a bill. Little Y.
State, 129 S. W. (26) 307.
Unle88 both gou888 of the L8gl8lature passed the
Bill with the rsqulslte two-third8 majority it doe8 not become
effeatlve until ninety day8 after the adjournmen t of the Leg-
18lature. %. K. & 9. Railway Co. of Tub8 Y. NoOlamory, 92
Tex. 150.
In Wilson Y. Young Oounty liardwme dcFurniture Oom-
pany by the Ft. Worth Court OS Civil Appeal8, 262 8. li. 873, It
vae held that the vote upon the Slnal pamage OS the gill and
not upon adoption Of 85Dndrunt8 OOntFOlE the que8tIo& hjk, J.,
speaking for the Fort Worth Court oS Civil Appeal8 in that oaee,
raids
%nder note8 in Ann. Ca8. vol. 16, p. 977.
the majority rule 18 eaid to be that the fIna
pawage of a bill vlthln the leant of a oon-
8titUt:O2U& pmYi8iOn reqUf??ing 8 Tot8 OU firurl
pa8sage to be by ayes and nays 18 the vote taken
upon th8 tiet reading OS the bill upon th8 qU88-
tion whether it rhall beaome a law, aad doe@ not
Include a vote 8Ub8wu8ntly taken by one bwoh
of the Legislature upon ooncurriq in the amend-
ments made by the other branoh. 8 * l* We a r e
of the opinion that the majority rule should be
followed, and that we mIBt hold that the vote
on the bill a8 finally pa88ed by the Senate va8
the vote on flnal parsage oad the law vae ln
efiect immediately upon the aoncurnnoe 2y the
Home with the &mate amendaunt. * l l.
In Ex parte Mar, 40 8. Y. (2d) 811, the Court OS Grim-
inal Appeals in Taxaa refused to Sollov the Wilson ca8e, aupra,
and declared:
“* l The words 'final paB8age', Pa u8ed
I).
in our constitution, meen final paawge. They
do not mean 8OIu pa88s$O before the f&b1 One,
but the last one. They do not mean the Passage
of a part of a bill, or what is flrat introduoed,
and which may, by PoB8On Of WXlt%OZhti, b8CrOm
the lea8t Inkportant. e t *,
Honorable B. A. Stefnhagon, Page 4
“4 * l . It 8e4 m8 eno u g h to 8a y th a t a
reason-
able and lo~lcal Interpretation of the controll-
ing pro~IaIon of the Con8tItutIOn of thi8 Stat4
confers upon the Leglrlature both the power, by
a record vote with majority of two-thirds of the
members of each houae, to change the time within .I..;
,,-^~.
an act of the Leglelaturs may ordInarlly become
effective, and requires that they exeralee auah
authority and paver at the tlm4 when they become
aware of the term8 OS the law aa finally agreed
upon. Prevloua aation upon a bill In Ite Initial
stages, before material and radical ohanges have
been made, would not control."
In Caples v. Cole, 102 8. Y. (26) 173, the Suprsas
Court of Texas overruled the WI18on ease, e~upra, and held In ac-
oordance with the May case, by the Court of CrlmInal Appeals, to
the effect that the last and final vote of both Houess on a bill
In Its final form deterrpineclwhether the emergenay clau8e provid-
ing that it go into effect iISl4diat8ly be Operative. We quote
from the opinion of J&. Justioe Sharp, ln the Caples Y. Co14 aaae(
"Furthermore, ve agree with the holding of
the Court of CrImlnal AppeblB in the May Ca8e,
and hold that this bill bscaw effective imme-
diately bft4F its passage. It IB clear that
the object of the provision OS the Constitution
above quoted Is that IS a bill i8 to take 4ffect
~.if.:
iIQ8diat4ly on it8 passage, It must contain an
emergency clause and auah bill must b4 pacsed
'by a vats of two-thirds of all the raeabers e-
lected to each house, and Bush vote to be taken
by yea8 and nags and entered upon the journsl8.
Ve think the rule pr48orlbed by the Constitution
also applier to amendpwnts and reports of aon-
ference committees. If thi8 V4F4 not tN4, it
Is quite obvious how the rule could be abused.
l l 4”
It la Interesting to note that In spite of the conflict
b4tveen the Wilson case, abovs cited, and the subsequent two case8
on the question of whether the votea before or after the adoption
of anendmenta control, all thres oases are authority for the pro-
positIon that the last and final passage of the Bill determInes
the vats aa to whether the elaergenoy clailee becomes effective.
It la thereEoPe our opinion, that In view of the fact that House
Honorable B. A. Stelnhagen, Page 5
Bill lo. 1084 received the requlrlte tvo-third8 m8jorlty of all
the memberselected to both Hou8em upon ita final pa88ege prior
to submIssIon to the Governor, the emergency cl8use to the Bill
~88 thereby enacted by the requlrite tvo-third8 majority of both
Bou8es. The 8ubsequent vote on the Bill vem not for the pur9o~s
of emmtlng the emergency olause but 8olely for the 9urpo8e of
overriding the Governor’s veto. Aa provided by Artlole 4, Sea-
tlon 14 of the Texas Constitution, the affirmtire vote of tvo-
third8 of the member8 present ve8 8ufflalent for Wr pwpo8e.
Article 3, Seotlon 39, end Artlole 5, Section 14, are tvo 8*9a-
rate and dletlnct oonstltutlon81 9rovl8lon8, eeoh oreeted for e
different purpose. and ve belleve that the tvo should not be eon-
&rued to be interdependent. Thlm is the tie declared by tsvlat
Sutherland on Statutory Construction, Vol. 1, 9. 111, vhere It
is stated:
'It 18 held that an aat vlth an emergency
Ol8U8e po88ed over the ffOVWrkOr’8 tOtO take8
effeot immediately."
'Phe Ca8e olted for thie 8tatHent i8 COti88iOlXer8
Sinking Fund v. George, by the %entuoky Court of A99eal8, 47 5.
U. 779, vhereln t&b eowt, faced vith the ldentiael pue8tion
here presented, end oonstruing oon8titutional provi8loM of Ibn-
tucky 8Jl8lOgOU8 to tho8e of the Texe8 Conrtltutlon here under
ooneideretion, declared1
** l 4 . It Is aontended that although there
18 8x1 emmgm~oy olause in the bill, and it ve8
pe88ed by the tvo howea a8 the constitution
requlre8, it cannot beaome e lev for QO deyr,
~nl.08~ the govermr approve8 It. If the oon-
atltutional convention had intended that the
will of the governor ve8 to oontvol on the eat-
ter of deolarlng an emergemy, It vould 8-1~
have said that the governor ray deolare an emer-
genoy, 8nd put the rot in forae at owe. We do
not thiDlc the lan(yrge md the 89iFft of the aon-
stltution make the approval of the governor e
ccmdltlon preoedent to the taking effect of en
act. The legislature cl8n 9ar8 e bill, and it
oan, by the 9lai.n pwvisloas of the oon8titution,
becemeQ a lav vithout the governor'8 approval.
There IMJ be a great MOe88ity that the aOt ahould
lmeedletely beaospe e lev. And, a8 the legislature
cap pose a bill a@ln8t the objeatlone Of the gov-
eFpor, It OW$ms to u8 that it Vi48 never intended
Honorable B. A. Steiuhagen, Page 6
that the governor should have the pover, by vith-
holdlng hi8 approval, to prevent the a& from
taking effect for $30 day8 after the adjournment
of the general assembly which pa886d the eat.
The governor can delay the time, vhen the bill
shall become a law, 10 days, by holding the bill
without signing or returning it. It BOOR8 t0 U8
that, vhen an eat beCo8I68 e law vlthout his ap-
proval, it vould be a strange oon8tructlon of the
oanstitutlon to SlloV the tfme to be 908tponed
when It vould take effeat because the governor
did not approve it. The governor vetoed the bill.
It eontelned the emergenuy alame. Thegeneral
assembly had the mame povep to pa88 the bill vlth
an emergenay olause as it had to 9aar It vlthout
euoh cleu86. And the cleuao we8 effeotlve to put
in operation the act. We think the laxu+u~;e;:ed,
to wit, 'vhen approved by the governor,
to the time vhen the act would take effeot If ep-
proved by hlm. However, vhen he dlsepprove~ it,
then It doer not take effeot, unle88 pp8aod, a8
the conatltutlon requlre8, over his objection.
This being done, It beaame e lav lmmedletely,
if the legislature had deolared an emergenoy.
By considering mootions 55 end 88 together, Ve
think the oonolu8lon ve have reeohed 18 5orreOt.’
It fm therefore our opinion that Houre Bill llo. 1084
of the 47th Legislature beoeme effective on July 3, 1941, the
date of It8 pe88agg over the Oovernor*8 veto.
ATTOBJIEY OEXHBAL OF (WMS
ATTORNEY GENERAL