Honorable Lloyd G. Rust, Jr.

CountyAttorney 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 timewarrants thereunder. Article III, Section 35 of the Texas Constitution imposes a sharp limitationupon the form of bills passedby the Legislature:

"Nobill

. . . shall containmore than one subject,which shallbe expressed In its title. But if any subject shall be embraced in an act which shall not be expressed In the title such act shallbe 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: ."Chapter234
H.B. No. 111
"'An Act amending Section 1 of Chapter 360, Acts of the Forty-seventh Legislature,Regular Session,

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1941, to provide that the CommissionersCourt In all counties of this State may provide fireprotection and fire-fightingequipment for the citizens of the county outside of any incorporated city, town or village therein; to provide that this equipmentmay be paid for by time warrants of the county as providedby 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

t1 (codifiedas Article 2351a-1 ofVernon's Texas Civil Statutes), is amended to read as follows: 'Section1. The Commissioners Court in all counties of this State'shallbe 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 villagewithin the county and/or adjoining counties. The Commissioners Court shall have the authority to purchase fire trucks and other fire-fighting equipmentby first advertisingand receiving bids thereon,and is hereby authorized to lssue time warrants of the countyand to levy and collect taxes to pay the interestand 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 CommissionersCourt In all counties of this State may provide fire protectionand 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 continuedby the addition of the words "and/oradjoining counties." If the Act is repugnant to the Constitution, It is by virtue of these added words.

The phrase "and/oradjoining counties" Is used three times in Article 2351a-1. We are concernedhere with only the first occasion of its use; in the last two instances the phrase is used in connectionwith clearlyproper contracts that the CommissionersCourt may enter into with a view to providing fire protection to the citizens of,the county.

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The caption benefits.thereunder to Article 2351a-1 indicates that the are intended solely for the citizens of a particular countywho reside outside an incorporated area. while thebody of theAct 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 Sutherlandv. 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-matterof the act? If by Its title It appears to affect only the residents of particularlydesignated localities, while the provisions in the body of the bill affect other localities or territory, then the title Ismisleading 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 statutemust fall. If the unconstitutionalportion can be excised, leaving the remainder cawable of standingalone, then the remainder of the statutemay be left Intact. -Land&n v. Centennial Rural High SchoolDistrict No. 2, 134 S.W.2d 353 (Tex.Civ.App.1939, error insm. judgm.cor.). The unconstitutionalwords "and/oradjoining 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/oradjoining counties,' found in the first sentence of Article 2351a-1,Vernon's Civil Statutes,render that statuteunconstitutional,but that the words are severableand their removaldoes 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

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and other fire-fighting equipmentby first advertisingand receivingbids thereon, and is hereby authorized to issue timewarrants of the county and to levy and collect taxes to pay the principal and-interest thereon as providedby 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 statutesand there can be no questionbui that the 1949 statute "providesby 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 authorizedby an election.

Therefore,we think that the phrase "asprovidedby law" appearing In the 1961 statutenecessarily refers to the 1949 statute and that Issuance of suchwarrants for this purpose must be authorizedby 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 particularpurpose even though the procedurediffersfrom that providedby Article 23&a, Vernon's Civil Statutes, entitled "Bondand Warrant Law of 1931, " which is the general law prescribing the procedure for issuance of time warrants.

It Is themethod of purchase of the equipmentwhich is the crux of the auestlonwresentedhere and we do not think that the purposes~forwhich the equipmentmay be used following its acquisition,as describedby 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 "protectionand preservation" of countyproperty locatedwithin the countybut not within any Incorporated city or town, while the 1961 statuteauthorizes the furnishing of 'fire-fightingequipment to the citizens of such county residing outside the city limits," etc. But these statedpurposes are so broad as to be overlapping in theirmeaning.

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Once the equipment is acquired, the Commissioners Courtmay well decide, In the exercise of its sound discretion, that the "protectionand preservatlon" of county property requires that they "furnish"the equipment "to the citizens of such county,"and vice versa. It iswell 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 propertymay 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 negotiablebonds, for under the provisions of Article 2368a, V.C.S., such time warrants, If they represent a "legaldebt" of the county,may be refundedby the issuance of suchbonds. Viewed In this light, as a part of the procedure leading to issuance of negotiablebonds,we think that the requirement of an election appearing in the 1949 statute is ,notremoved beyond any doubt by the words "asprovided by law" of'the gbl statute. hnd the Supreme Court of the United Stateshas held that since the existence of power In political subdlvislons to issue negotiablebonds is extraordinary, "an as to whether a law confers suchpower will be T%%gst reso ve Its existence. City of Brenham v. German AmericanBank, 144 U.S. 173, 549, 12 Sup.Ct. 553, 975. (Emphasisadded).

SUMMARY Article 2351&l Is unconstitutional insofar as it is broader in scope than the caption of the enrolledbill. By excising the words "and/oradjoining counties" from the first sentence of the Act, the statute can be made to conform with constitutionalrequirements. With the words so removed the Act can stand alone and is valid.
An election is necessary to authorize the issuance of timewarrants under Article 2351a-1,V.C.S.
Yours very truly,
WAGGONER CARR Attorney General

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MLQ:RM:a:ma APPROVED: OPINIONCOMMI!PTEE W.V. Geppert,Chalman 

### CecilRotach JosephTrlmble APPROVEDFORTREATI’ORNEY

### GENERAL By: StantonStone

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