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 constitutional, and, (2) if so, whether an election Is necessary to authorize the issuance of time warrants thereunder. 

Article III, Section 35 of the Texas Constitution imposes a sharp limitation upon the form of bills 

passed by the Legislature: 

"No bill . . . shall contain more 

than one subject, which shall be expressed 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 

"'An Act 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, 19 t 1 (codified as Article 2351a-1 

of Vernon's Texas Civil Statutes), is amended to read as follows: 

'Section 1. The Commissioners Court in all 

counties of this State'shall be authorized to 

furnish fire protection and fire-fighting 

equipment to the citizens of such county residing outside the city limits of any incorporated city, town or village within the 

county and/or adjoining counties. The Commissioners 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 lssue time warrants of the county and to levy 

and collect taxes to pay the interest and prlncipal thereon as provided by law. The Commlssioners 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 incorporated 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 added 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. 

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Hon. Lloyd G. Rust, Jr., page 3 (C-91 ) 

The caption 

benefits. thereunder 

to Article 2351a-1 indicates that the 

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 fairly 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 affect 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 provisions 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 adjoining counties" can be removed from the first sentence of Article 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 validity of the remainder of the statute. 

As to your second question, we find that,the 1961 smendment 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 effective statute. It Is noteworthy that the words 

purchase fire trucks and other fire-fighting equlim&t 

to 

' 

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 warrants 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 purpose 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 following 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 property 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 purposes 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 requires 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 prlvate property may endanger all other property over a large 

area. 

This answer to your second question is further justified 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 subdlvislons to issue negotiable bonds is extraordinary, "an 

as to whether a law confers such power will be reso T%%gst ve 

Its existence. City of Brenham v. German American Bank, 144 

U.S. 173, 549, 12 Sup.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 conform 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’ORNEY GENERAL 

By: Stanton Stone 

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