Untitled Texas Attorney General Opinion

R-602
OFPICE OF
THE ATTORNEY GENERAL
AUSTIN, TEXAS
PRICEDANIEL June 25, 1947
ATTORNEY
GENERAL
The Honorable Beauford ,H. Jester
Governor of the State of Texas
Aus tin, Texas Opinion Ro. V-267
Re: Constitutionality
of House Bill 543.
Dear Governor Jester:
Your statement and request for an opinion on
the constitutionality of H. B. 543 are in part as fol-
lows :
wThis measure is now before me for action,
having been passed by the regular session of
the 50th Legislature.
“It purports to amend Article 3174 of the
Revised Civil Statutes of Texas, 1925. This
act reads as follows:
‘Article 3174. Management - Each
eleemosynary institution estab-
lished by law shall be managed and
controlled in accordance with the
provisions of this title. The gen-
eral control, management and dlrec-
tion of the affairs, property and
business of such institutions is
vested in the State Board of Con-
trol .*
“In both the caption and in the body of the
Act, the general statement is made ‘Wherever in
the laws or Statutes of the State, the State Board
of Control is named in connection with the control,
management and direction of the affairs of said
Texas School for the Deaf, the same shall hereafter
be taken to mean and to apply,to the said Board of
Trustees for the Texas School for the Deaf for all
purposes, and said Board of Trustees for the Texas
School for the Deaf shall succeed to all duties,
ppwers and functions of the State Board of Control...’
P
Hon. Beauford H. Jester, Page 2
11
. . . .
RIt is clear to me from reading House Bill
543 that it seeks to amend Article 3202-a and
3202-b of the Revised Civil Statutes of Texas,
by a general reference.
“I should like to, have your opinion on how
this provision relates to Article 3, Section 36,
of the Texas Constitution.
n. . . .
"1 shall be most grateful for your advice
on the constitutionality of the measure. . . .v
Section 2 0r Il. B. 543 provides 8s~follows:
*All of the powers, duties and functions 0r
the State Board of Control in so far as the same
apply to the Texas School for the Deaf are here-
by transferred from said State Board of Control
to said Board of Trustees for the Texas School
for the Deaf and said Board of Trustees for the
Texas School for the Deaf shall hereby be vested
with the general control, management and direc-
tion of the affairs, property and business of
said Texas School for the Deaf, including the ap-
pointment of the Superintendent for said school.
Wherever in the laws or Statutes of the State,
the State Board of Control is named in connection
with the control, management and direction of the
affairs of said Texas School for the Deaf, the
same shall hereafter be taken to mean and to apply
to the said Board of Trustees for the Texas School
for the Deaf for all purposes and said Board of
Trustees for the Texas School for the Deaf shall'
succeed to all duties, powers and functions of the
State Board of Control, provided, however, the
preparation and submission of the budget for the
Texas School for the Deaf shall be made in
acoordance with the provisions of Article
688 and 689, Revised Civil Statutes, 1925,
as amended, and the purchase of all sup-
plies shall ,be made in accordance with Arti-
cle 634, Revised Civil Statutes, 1925, as
amended. Provided nothi% in this Act shall
be construed to in any manner effect, impair,
repeal or modify the provisions of Article
3183 or any other provision of the statutes
Hon. Beauford H. Jester, Page 3
providing for the support and maintenance
of said school as an eleemosynary institu-
tion of this Stste; and said school and the
children entitled to the benefits thereof
shall receive the same kind of support,
maintenance and care provided in other
eleemosgnary institutions in this State.”
This Section of the Act clearly transfers the
powers, duties, and functions of the Board of Control, in
so far as they apply to the Texas School for the Deaf,to
a Board of Trustees for the Texas School for the Deaf.The
Act unquestionably modifies Articles 3202-a, 3202-b, and
other statutes affecting the Texas School for the Deaf.
This is accomplished without re-enacting Articles 3202-a,
3202-b and the other statutes affected thereby, and pre-
sents the question of a violation of Article III, Section
36 of the Texas Constitution, which reads as follows:
VIo law shall be revived or amended
by reference to its title; but in such
case the act revived, or the section or
seations amended, shall be re-enacted and
published at length.”
While no Texss cases are found applying this
constitutional provision to Acts transferring duties from
one officer or body to another by mere reference to the
Acts setting out those duties, many decisions are to be
found both in Texas and in other jurisdictions which in-
dicate the scope of such a provision and which hold ex-
pressly or by implication that it will not be applied
strictly or 11 terally.
Illustrating this tendency, we quote from the
Arkansas case of Watkins v. Eureka Springs, 4 S.W. 384,
as roliowps:
“It could not have been the intention of
the framers of the constitution to put unrea-
sonable restraints upon the power of legisla-
tion, and thus unnecessarily embarrass the
legislature in its work. Montgomery Ass’n.
v. Robinson, 69 Ala. 415; Home Ins. Co. v.
Taxing District, 4 Lea, 644. They meant on-
ly to lay a restraint upon legislation where
the bill was presented in such form that .the
legislator could not determine what its pro-
visions were from an inspeotion of it. What
Ron. Beauford H. Jester, Page 4
is not within the mischief is not within the
inhibition. Every intendment,is to be in-
dulged in favor of the prerogative of the
legislative branch of the government. A doubt
of its powers to legislate inures to its ben-
erit. The.language,of the provision is so
broad that a literal construction would hamper
legislation almost to the extent of prohibiting
it. . . .*
In the case of Southwestern Gas and Electric
Co. v. State, 190 S. W. (2d) 132, the Austin Court of
Civil Appeals, in dealing with an attack on a statute
under Article III, Section 36, speaking through Chief
Justice YcClendon, said :
“The provision has been construed in a
number of decisions in this State, as well
as in other states having similar constitu-
tional provisions. It is the general rule
in this as well as in other states thst the
provision does not apply to legislative acts
which are complete within themselves, although
their effect may be to amend some other law.
And this rule seems to apply regardless of
whether the amendatory act specifically men-
tions the act thereby in effect amended. The
State concedes the correctness of this rule
as to cases in which there is no mention of
the amended act; but contends that where, as
here, the act amended is mentioned in the
amendatory act, there is an amendment by
reference and the provision applies. We do
not so construe the adjudicated oases in
this state. To the contrary we regard the
cases of Snyder v. Compton, 87 Tex. 374,
28 S.W. 106, and Quinlan v. Houston & T.C.R.
Co. 89 Tex. 356, 34 S . W. 738, as practical-
ly on all fours with the case at bar. . .”
The Supreme Court of Texas affirmed this ‘ease
in an ooinion bv Justice Slatton found in 193 S. W. (2d)
675, in-which h& saia:
“It is the rule that the provision of the
Constitution invoked by the State does not ap-
ply to legislative enactments which are com-
pl.etewithin themselves, even though their ef-
fect may be to amend some other law. The lead-
Hon. Beauford H. Jester, Page 5
ing cases announcing this view are: Snyder v.
Compton, 87 Tex. 374, 28 S.W. 1061, and Quinlan
v. Houston & T. C. R. Co., 89 Tex. 356, 34 S.W.
738.”
39 Texas Jurisprudence, page 129, Section 66,
contains the following language:
*An existing statute or provision in the
laws of Texas may be adopted in new legisla-
tion by appropriate descriptive reference,
without the necessity of re-enacting and pub-
lishing it at length. In this manner, even
a statute of snother legislative jurisdiction
may be sdopted. A statute so adopted is known
as a ‘reference statute’.-
50 American Jurisprudence, 195, Section 215,
reads in part as follows:
“Statutes which refer to other statutes
and make them applicable to the subject of
the new legislation are called ‘referenoe
statutes’. Such a statute is not strictly
amendatory or revisory in character within
the meaning of a constitutional provision
~which forbids a law to be revised, altered,
or amended by reference to its title only.
. . . .”
The question here presented is the subject of
a comprehensive annotation found in 67 A, L. R., page
564, construing the case of Quinlan v. Houston 6cT. C.
R. Co., 89 Tex. 356, 34 5. W, 738, oited in Southwestern
Gas and Electria Co., case, suprs, and dealing with the
general question. We quote from page 568:
“In upholding a special act which ex-
pressly extended to a named railroad all
the grants, provisions, immunities, and
privileges of a previous act (referred to
by title and date), to encourage the con-
struction of railroads by donations of
lands, and which further provided that the
charter was subject to all the provisions
of the general railroad laws, the court in
Quinlan v. Houston & T. C. R. Co., (1896)
89 Tex. 356, 34 S.W. 738, noted that the
Constitution provided that ‘no ,lawshall
Hon. Beauford H. Jester, Page 6
be revised or amended by ~refer,enceto its
title; but in such case the act revised,
or ,section amended, shall be re-enacted
and published at length;’ and said: *It
is quite clear that 6 12 . . . is in no
sense a revision of the Act of 1854. It
extends the operation of that act, so as
to make it apply to a company to which it
did not apply before. If this may be
deemed an amendment, in any sense of the
VJOrd, it is evident that it was not such
an amendment as was contemplated by the
section of the Constitution just~quoted.
. . . That proPision, and other,similar
constitutional restrictions upon the form
of legislation, have never, in construc-
tion, been given a rigid effect.’ And it
added thst the meaning ‘ofthe new act was
as clear as if the provisions of the gen-
eral law had been repeated in it.”
In dealing with Acts transferring, by refer-
ence to the applicable statutes the duties of one offic-
er or body to another, we quote from 67 A. L. R., page
569, the general rule supported by many authorities
thereafter cited.
*The transfer of authority and the
corresponding duties from one arricer or
body which has by previous enactment been
entrusted with the same particular author-
ity and duties, to a pifferent officer or
body, without at the same time making any
change whatever in the nature or extent of
the authority and duties themselves, forms
one of the clearest of all the numerous
examples of situations which have been
dealt with in statutes which have been at-
tacked as violating a constitutional re-
quirement of the sort indicated in the ‘pre-
ceding subdivision.
“New statutes of this particular
variety, which simply transfer auties
from certain officers or bodies to others,
without in any way changing the duties them-
selves, the effect being a mere substitution
of the person or persons charged with these
duties, have generclllybeen regarded ss not
Hon. Bea.Ford H. Jester, Page 7
within the contemplation of the oonstitu-
tional requirement to the effect that the
existing statutory provisions must be re-
enacted or set out at length, the new
statutes being regarded as not strictly
amendatory.*
In the light of the above authorities, the pro-
bitioa of Article III, Section 36, is limited to acts
which are not complete within themselves and the meaning
of which is not understandable to the reader. House
Bill 543’ is a complete act although it modifies and chang-
es existing statutes without expressly naming them all.
It does, however, apprise the reader of its intent, mean-
ing, ana purpose, and merely trarifers the duties from
one body to another.
You are therefore respectfully advised that
House Bill Number 543 is not violative of Article III,
Section 36 of the Texas Constitution. The effect or
this opinion is limited only to the statutes which re-
fer to the Board of Control in its relation to the Tex-
as School for the Deaf.
You are further advised, however, that Souse
Bill 543 will probably raise numerous questions as to
possible conflicts of authority between the Board of
Trustees of the Texas School for the Deaf and the Board
of Control in so far as riders on the appropriation bill
(S. B. 374) are concerned. Such riders apparently were
written without reference to the fact that H. B. 543 hsd
transferred certain Board of Control duties to the Deaf
School Board of Trustees. These conflicts will require
considerable future interpretation of the respective
duties of these Boards, but we will express no opinion
thereon until such time as the question may arise.
House Bill 543, in so far as it transfers
the control of the Texas School for the Deaf from
the Board of Control to a Board of Trustees for
the Texas School for the Deaf is not ucconstitu-
.-
Hon. Beauford H. Jester, Page 8
tiom.1 as violating Article III, Section 36 of
the Texas Constitution.
Yours very truly
ATTORNEYGENERAL OF TEXAS
EQ?i!!~H``
Assistant
ATTORNEYGENERAL
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