Mr. Wilson E. Speir, Director

Department of Public Safety 5805 North Lamar Blvd. Box 4087 Austin, Texas 78751 Opinion No. M- 442 Re: The Validity of Sub-section 4a of Section 3 of Article 668733, as Amended by Section 1, Senate Bill 78 of the 61st Legislature, R. S., 1969 Dear Mr. Speir: You have requested our opinion on the constitutionality of Sub-section 4a of Section 3 of Article 668733,as amended by Section 1, Senate Bill 78 of the 61st Legislature, R.S., 1969. Article 6687b is commonly knownas theTexas Driver’s License Act. Inyour letter, you state:

“We would like to haveyour opinion as towhether there is sufficient notice in the caption of Senate Bill No. 78 to make constitutional this change in Sec. 4a. We believe thatthe language in the caption ‘amending Section 3, Chapter 173, Acts of the 47th Legislature, Regular Session 1941, as amended (Article 668713, Vernon’s Texas Civil Statutes)’ gives no notice thatthe Legislature intendedto change Section 4a. We therefore believe that Section 4a as amended by Chapter 350, Acts of the 59th Legislature, Regular Session, 1965, is still the law inTexas. ” Section 35, Article III of the Texas Constitution, states:

“Sec. 35. Nobill, (except general appropriation bills, which may embrace thevarious subjects andaccounts, for and on account of which moneys are appropriated) shall contain more thanone subject, which shall be expressed in its title. Butif any subject shall be embraced inan 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. ”

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The title of Senate Bill 78 of the 6lst Legislature, R. S., 1969, is a8 follows:

“AN ACT relating to certain persons whoare exempt from being required to have a driver’s license because of certain service in the armed forces; amending Section 3, Chapter 173, Acts of the 47th Legislature, Regular Session, 1941, as amended (Article 6687b, Vernon’s Texas Civil Statutes); anddeclaring an emergency. ” Sub-section 4a of Section 3 of Article 66874 as amended by Section 1 of Senate Bill 78 of the 61st Legislature, R. S., 1969, reads:

“4a. A person operating a commercial motor vehicIe, the
gross weight of which does not exceed six thousand (6,000) pounds as thatterm is defined in Article 6675a-6 of the Revised Civil Statutes ofTexas, operated in the manner and bearing current form registration plates as provided in Article 6675a-6a of the Revised Civil Statutes, who holds an operator’s license, shall not be required to obtain a commercial operator’s license. ” This Sub-section, prior to Senate Bill 78 of the 61st LegisIature, R. S. 1969, read:

“4a. A person operating a truck with a manufacturer’s rated carrying capacity not to exceed 2,000 pounds, which is intendedto include trucks commonly knownas pickup trucks, panel delivery trucks, station wagons, and carry-all trucks, whoholds an operator’s license, shall not be required to obtain a commercial operator’s license. ” In construing the provisions of Section 35 of Article IIIof the Constitution of Texas, the Supreme Court of Texas has stated on numerous occasions thatthe caption of an amending act is not necessarily deficient because it merely states thata particular prior law or particular section thereof is being amended and does not give further particulars. Statev. McCraken, 42Tex. 383 (1875); Gunter v. Texas Land &Mortgage Co., 82Tex. 496 17S.W. 840 (1891); English & Scottish-American Mortgage & Investmen; Co., Ltd. v. Hardy, 93 Tex. 289, 55 S W. 169 (1900); Board of Water Engineers v. City of SanAntonio, 155Tex. 111, 283S. W, 2d 722 (1955); Schlichting v. Texas State Board of Medical Examiners, 310S.W. 2d 557 (Sup.Ct. 1958).

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However, this rule is notwithout limitation. The Court stated in Board of Water Engineers v. City of SanAntonio, supra:

,,

. ~ , if theprovisions of the law or section to be amended involve a subject different from that actually dealt with in the body of the amending act, a reading of the former will not disclose to the reader the true subject of the amending act but, on the contrary, will mislead him as to the latter

. . .” Therefore, the Court noted in footnote 3at 283S.W. 2d, page 727, the following: ” ‘The courts of this state have held thata reference to a number of an article in a code, such as our Revised Statutes, is sufficient in the title of an act amendatory thereof, to allow any amendment germane to the subject treated in thearticle referred to. English &Scottish-American Mortgage & Investment Co. v. Hardy, 93 Tex. 289, 55 S.W. 169; Statev. McCraken, 42Tex. [383] 384. The reason for the holding appears to be that the naming of the article to be amended directs attention to all of the provisions therein, as the subject of the amending act, and thatsuch provisions can be ascertained by reading the article to be amended. However, whenthe Legislature restricts the title of an amendatory act by reference to the number in the code of the article amended, andannounces its purpose to deal with the original bill in respect to particular matters therein, it is boundto govern itself accordingly, and keep within what it had irself declared would be the limits of its proposed action. Sutherland Statutory Construction (2d Ed. ), vol. 1, Sub-section 139; Statev. American Sugar Refining Co., 106La.553, 31 So. 181, 186. ’ ” Likewise it was held in Harris CountyFresh Water SupplyDistrict No. 55 v. Carr, 372S.W. 2d 523 (Sup. Ct. 1963):

“The deceptive feature of the title is thus apparent. A reader is misled into believing thatthe bill will have noapplication to any type of water district except the two which are specified in the title, and thatthe purpose of the Act is to establish restrictions with respect to these two types of districts. Butthe intendedeffect of the Act is to prohibit the creation of any type of water district other thanthe two mentioned. ~ . ~ ”

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In Fletcher v. State, 439 S.W. 2d 656 (Sup. Ct. 1969), the Court held:

“The main subject of the Act is stat.edin the caption as being thatrelated to the licensing of polygraph examiners. The expression of a purpose in the caption of an act relating to the licensing of polygraph examiners and the creation of a Polygraph Examiners Board fails to give notice that embodied in theAct is Section 2 (5) which includes the regulation of all persons whouse any device (such as a B &W Lie Detector) to test or questi.onindividuals for the purpose of verifying truth of statements. We therefore hold thatthe language used in the title of the Act is not sufficient to properly advise the Legislature and the public as to the real subject of the Act. See Gulf Insurance Companyv. James, 143Tex. 424, 185S.W. 2d 966, 970 (1945); Arnold v. Leonard, 114Tex. 535, 273S.W. 799 (1925).” A similar holding is found i,nWhitev. State, 440 S.W. 2d 660 (Tex. Crim 1969):

“The application of the above announcedprinciples and authorities to the case at bar is too plain to require further discussion. Even the most liberal of constructions will not be enoughto upholdthe act. The language of the 1967 act clearly imports thattheact is to be amended in the stated particulars. Nofair notice was given of any intent to make the drastic andradical changes in the penalty provisions thatwere made or to eli.minatepenalties for other offenses provided for by the act being amended, andwhich goes a long way in destroying thevery effect of the stated policy and intent of the overall act. ” The title of the amendatory act here refers specifically to exempting persons required to have a driver’s license because of certain service in the armed forces, The actual subject matter contained in theamendatory act’s Sub-section 4a extends an exemption to other persons because of their operation of commercial motor vehicles, a subject not mentioned in the title of the amendatory act. Hadthe act’s title omitted the express bmitation “because of certain service’in the armed forces”, the subject matter would have been suffi.ciently broad to placesa reader on notice thatthe proposed amendment intendedto deal with all classes of persons who shall be exempt from obtaining a commercial operator’s license. However, the title of the amendatory act here is expressly restricted to those persons who are exempt because of certain service in the armed forces. Therefore, we conclude thatthe amendatory act’s title does not advise the Legislature and the public as to

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the real subject of Sub-section 4a of Section 3, as amended by Section 1 of Senate Bill 78 of the 61st Legislature, R. S., 1969. As the subject contained in Subsection 4a of Section 3was not expressed in the title, such Sub-section is void. However, the portion of the amendatory act which relates “to certain persons who are exempt from being required to have a driver’s license because of certain service in the armed forces” is valid. SUMMARY Sub-section 4a of Section 3 of Article 6687b, Vernon’s Civil Statutes, (Senate Bill 78, 61st Legislature, R. S. 1969) is invalid, being in violation of the provisions of Section 35 of Article IIIof theTexas Constitution. The title to Senate Bill 78 gives no notice of an attempt to broaden the category of persons exempt from obtaining a commercial operator’s license other thanthose whowill be exempt because of certain service in the armed forces. That portion of the amendatory act relating to license exemption because of certain service in the armed forces is valid.

y General of Texas Prepared by James H. Cowden Assistant Attorney General APPROVED: OPINION

COMMITTEE Kerns Taylor, Chairman George Kelton, Vice-Chairman Richard Chote Linward Shivers Neil Williams James Quick Tom Sedberry W. V. Geppert Staff Legal Assistant Hawthorne Phillips Executive Assistant

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