OFFICE OF THE ATTORNEY GENERAL OF TEXAS 

AUSTlN 

‘i,cnurebls l’cm L. ~ceuoh~p 

&scrstnr)- of 4ate 

hlatin, ~sxna 

a*e are In rsoelpt of 

which YOU rsqw8t the opinion 0 

lng quest low : 

oowollb ation of 

capital of the 

tarabls caplt 

llaat a stIppleLe0. 934 wh0rcr a 

ths taxabl.8 

on 3 render Eowa 

. 934, 46th Ls$ialaturs, provides 

eaid ocnsolidatfon of euoh 

nerelras the taxable oapital 

unt or the texebie oapltal as 

84, a6 wanded, of tbo ocprporsand upon ahioh a frwahhk3 tax 

by said aorporet5.ons to the Eearathe aurrsut year, then in suah event 

ise tar shslr La psyebla until the 

naxt regular psymmedt drte, 61s provided in l'ltle 18s. 

Cha ter S OS the i;cttvirred Civil i3htutes uf Terau of 

l&, but ‘in the event that eafd aoaaolid,ation of euoh 

aorporatlons as provided in Eeotiono 1 and P. oil this 
646 

Bon, Tom I.. Beauohemp, Page 2 

Aat shall provide for an lnareaee In the taxable 

aapltal of the proposed oorporatlon over the combined 

taxable capital of the corporations so consolidated upim vahich franohlrre tax had been already duly paid for 

the current year by such oorporatlons, then in such 

event, upon the epproval of said consol‘iaation oy the 

Leoretary or atate, a supplemental franOAlSe tax shafl 

be pi0 a sa co 03% 

or the hevised blfil *tatutea or Aexae or IVES in the 

case of an lnarease in the taxable capital of &y aormestia 

or foreign oorporatlon." 

As pointed out by you In your letter, Artiole 7090, Revised. 

Civil Statutes, 1925, was espreeely repealed by hots of 1930 418% 

Legislature, 6th Called Seesion, p. 220, Ch. 08, sec. 1. Prior to 

Its repeal, krtiole 70D0 provided as follows: 

'In the event or Increase In the authorized aepital 

stock 0r any domestie or foreign corporation, it shall 

also pay in advance a eupplemental franohlse tax thereon 

ior the remainder of the year down to and iualuding the 

thirtieth day of April next thereafter, the amount of 

which shall be determined as la provided in the third 

article or this chapter lh case or the firet rranohlee 

tax payment to be made by a domestic aorporatlon whlah 

may be hereafter authoriecsd to do business within this 

State.* 

A valfd express repeal abrogatas, destroy6 or supereedas 

the aat or provielon against rhlah it ia direoted. Thereafter 

the statute repealed Is considered a8 though It had never existed, 

except as to transaotlone passed and closed. 39 Tex. Jur. 155. 

Prior to the enactment of house Bill Bo. 934, It was ruled 

by thle Department in Opinion No. 

Tom L. Reauohamp, 

O-784, addreesed to the Honorable 

beoretary or State, that the Secretary oi State 

is not authorized to oolleot a aupplemantal franchise tax on domeatio corporations for the iraatlonal part of' the year remaintrig when 

suah corporations lnareaee their taxable oapltal by aha-&er amendment . 

Article 3, Sea. 36 of the Texas Constitution, providea 

a8 r0u0wst 
Hon. Tom L. Eeauchamp, Page 3 

wNo law shall be revived or amended by reterence 

to its title; but in such case the act revived, or the 

seotlon or seotions amended, shall be re-enaoted and 

published at length.” 

It is well established that a valid existing statute may 

be incorporated in an act by reierenoe to Its title and the erred. 

of such adoption 1s to re-enaot the prior statute to whloh reierenoe 

is made. CuinIan vs. Eouston & T. C. Ry. Co. (Sup. Ct. 1896) 34 

@ Vi. 7381 Dallas County Levee &strict No, 2 vs. Looney (Sup. Ct., 

$18) 207 S., W. 3101 Dallas County Levee Improvement District ilo. 6 

VS. Curtis (T.C:A. 1936) 287 s. %‘. 301; Trimmer vs. Carlton (Sup. 

Ct. 1927) 296 S. i:~. 1070. In eaoh at these oases, however, the 

Veierenoe statute” aas s valid existing statute at the time oS Its 

adoption by the subsequent enactment. 

In Qulnlan vs. Rouston & T. C. Ry. Co, supra, the oontentlon was made that the statute adopted by reierenoe had expired by 

its own Umltatlon and Sor ‘ihat reason the section oS the act making 

tha reieranoe Was inoperative. Although It wad held that the 

Veieranoe statute” had not expired Sor all purposes, ChleS Justice 

Gaines pointed nut a slgnilioant dlstlnotion between the present 

Article 3, Section 36 and the provlslon OS I045 and many oonstltutlonal provlslons oS other states In the Sollowing language: 

-‘The constitution OS I045 contained no inhibition egalnst 

the revival oS statutes by reterence to .thelr title. 

The present oonstitutlon has a provlslon which oorresponds 

to h3CtiGn 25 0r Article 7 0r the Constitution 0r 1045; 

but that provision uses the word *revlvs’ instead oS 

*revise*. IS it had been in roroe when the aot OS I566 

was passed, and if the law oS 1864 had then expired, it 

would have prasented the question Whether the older law 

would have been revived and made applioable to the Waoo 

Tap Railroad Company by a mere relerence to Its title. 

But, under the constitution in force when the special 

charter was granted, the question doea not arise. In the 

absence of any oonstltutional restriotlon, we are of 

opinion that one statute, by a proper reierenoe to another, 

may lnoorporate in It the provisions oS the Sormer law, 

although the former may have expired, or may have b,een 

repealed. A law so reierred to in another, and made a 

part oS it, does not operate by Its inherent Soroa, but 

takeserreot trom the statute in whloh it is lnoorporated. 

. . . ii the statute reierred to ba an existing law, 
,648 

Eon. Tom. L. Beauohamp, Page 4 

the legislative purpose is to apply its provisions 

to the subjeot matter of the new aot. IS it has expired, 

or has been repealed, the purpose Is to revive it and 

make it ap?lioable in the same manner. . . n 

If the purbose or aeotion 3 or Rouse Bill No. 934 is to 

revive the repealed artiole 7080 by reierence to Its title and make 

It applicable to the corporatione‘designated in House 2lllNo. Ir34, 

it is an attempt to revive a statute by referenoe to its title in 

violation of Article 3, Section 36 of the Texas Constitution and 

therefore void, IS, however, the purpose of the aot is not to 

revive said artiole but is to require the payment of a supplemental 

franchise tax as now required of other domestio or foreign oorporations, it is or no otleot since such oorporations are not required 

to pay a supplemental Sranchlse tax upon increase oS their taxable 

oapltal. 

authorize 

Sections 1 and 2 of House Bill MO. 934, 46th Leglslat.re/;f 

the oonsolldstion of.two corporations organized under the. 

lawaot the State of Texas ior one or more of the purposes 

speolrled lzi Subdivision 81 or Article 1302 of the Revised CivlL 

Statutes oS Texas and it is provided in Seotlon 4, the,emergenoy 

olause, that: 

'*The Saot that there is no preaent provlslon ln the' 

statute for the consolidation of corporations organlied 

r0r, the purposes stated under Bubdivislon 81 or Artlclc 

1302 0r the R.3aiea Civil Statutes 0r xexas, 1926, ana 

that'lt is neoessary Sor the we3Sare oS the State that 

provision be made tor the consolidation or suoh corporations create~an emergenay, etc.e 

.A well establfshed rule of' statutory oonstructloa is ex+ 

*-48sed as tollows In San Antonio Independent Lahool Distrlot vs. 

'tatd (T.C.X. 1916, writ rerused), 173 6. W. 526: 

n 

.~. . where part oS the whol.e act is unoonstltutlonal end the remainder is oonstitutional, it 

the two parts oan be poaslbly separated uourts ahopl% 

do so, and not per&t the invalid part to destroy the 

whole law. ir, aster the elimination of the invalid 

part oS the l~aw, there,remains en intelllglbla ahd. 

valid statute oapable oS being pl.aoed In exeoutlon.an% 

oonrormlng to the general purpose an% Intent oS .the 

Legislature, the law will not be destroyed, but hel.d 

te be valid .and binding exoept as to the excised part. 

. . . As said by Ju%ge Cooley: 
649 

Eon. Tom L. Beauohamp, Page 6 

"'b-here therefore, a part cjf a statute is unoonstitutional, that fact does not authorize the courts to 

declare the remainder vold also, unless all the prov'sions are cocnected in subject matter, d~epending on 

each other, operating together for the same pur;>ose, 

or otherwise so connected together in meaning that it, 

cannot be presumed the Legislature would have passed 

the one without the other, The constitutional.provisions may even be contained in the same sect&n, and 

yet be perfectly distinct and separable, so that the 

first may stand though the last fall'. Cooley Constitutional Urn. seotions 177, 178. 

"That dr:ctrine is always recognized by all cbu?i,s.* 

See also to the same effeot: cihlte v. Farhing (T.C.A. 

1912, writ refuse&) 212 S.X. 193, White v. Viveriok County 

yiater Control & Imp.Dist.No.1, (bom.App. 1931) 35 S.&;,(2) 107; 

City of Dallas v. Love, (T.C .A. 1930) 23 S .F. f2d) 431; Gefirrt 

v. Yorktown Ind.Sohool Diet. (T.C.A. 1926), 285 S.W. 346; Gerhardt 

v. Yorktown Ind. School Diet., (T.C.A. 1923), 252 S.K. 197. 

The primary purpose of House Bill 934 appears to be to 

authorize the consolidation of corporations and the provision for 

a supplemental rranchlse tax, incidental thereto. The two proriaione are not so Inter-related and dependent, one upon ths other 

that we can presume the Legislature would not have passed the. on8 

without the other. 

It is our opinion that the SeOretary of Gtate is not autho,rized to collect a supplemental iranahise tax under Eouse Bill 

.No. 934, 46th Legislature, where a oonsolidation of oorporations 

,Innreases the taxable oapital of the proposed oorporations over 

?he combined taxable capital of the corporations oonsolldating. 

be are further of the opinion that the ineffective provisions OS Section 3 do not render House Bill No. 934 void In its 

entirety. 8~ 

Yours3 very truly 

ATTOBNBY GEBEBAL OF TXAS 

CCC:N