VV 

OFFICE OF THE ATTORNEY GENERAL OF TEXAS 

AUSTIN 

6-W c. mNN 

.lvoNn .mlPUC 

Eon. D. %iehard Volga8 

GOUtlt~ AttorPay 

wil6aEl county 

IlcpeerSlls, !Puas 

Dear sirr 

‘opinion wo. oThis till aoknm 

tar0rntm3 

cls 4399, RariBly, we are &la& 

sldLture (ohap. 

8, 46th Leg., %%g. SSSO.), 

utlonal by opinion !?o.O-23 

1 at this adartnfstrstlon. 

se Bill No. 205, ~6.6 of the 

@3l&iw%* asgular seBsi%n, 

crppruvt3U on Lsay 25, 1939, 

and whiah bill beoaue sff&otiVa rrtSy a., 1939, 

the Legislature re-snaated and passed the 

iamtioUoEo~~il1 IFo=727, ci the Fortyrirth L@ i *** 
Hon. D. Xioherd VOge8, page 2 

205. 

You than quote the %m%Cg%noy olause of~E.B. 

Beoently we rendered o~lnlan I?o. O-907 k, 

Hon. I. Pra%d%oki, County Auditor oi CUreston County, 

and ln that oplnlan we held H.B. 2QS aa %naoted a aanstltutional and valid statute. Howm%r, the pu88tio~ 

raised by Mr. Prasdsokl was the raot that the mg~- 

ay clause proolaim%d LB. 205 to be the same Aat au 

H.B. 727, supra, whereas in truth there w%r% aubetantial and material ahanges in the text. Wo held In QUF 

opinion in that oaee that ths smergenoy olauso b%lng 

erroneous did not vitiate the bill. 

We enalose, herewith, a oopy oft opinion No. 

O-907 for your ooneideratlon. You will readily note 

tram reading same the dlfrer%no%s in the two anu~&tr+ 

ry Aota. 

However lf it should be oonoeded the t%rma 

0f~X.B. 205 passe& in 1939, an6 LB. 727, the 1937 Aot 

deolared unoonatitutiona& were synonymous, the effsst 

would not be to mak% oounties llabb for 0013li8 8oQNing Irm the time H.B. 727 iae deolared unaonstltutlonal until the exsoutive approval oi H.B. 205 mad% 'it 

effeative as a law. We qmte the following from 39 

T%x. Jur. 41% 

*The enactment o? %uratiV% StetUte8 Oonatitutee a valid exeraiss of legislative 

pavier. In this mamer the Legislature oan 

eive oapaoity or dispense with any iarmaJ.lty it could have previously &van or d.ispeneed with. In ehort, it oan rati- anything 

it, could have authorized in the first lnetanoe. 

But the I.%gislature oennat breathe the breath 

of life into a dead thing.' Thus it a%nnot 

validate an unoonatltutlonal %tatUt%, Xf.E 

vitalize a void judgznent.w (Esnphasl8 OUTS). 

We pots iraa 12 O.J. 1092; 

"An unoonstitutional statute 1s abeolut%- 

ly nti and vald ab inltio, having no bind- 
Hon. D. Riohard VOgeil, page 3 

lng force; and is not vallduted by a subs%- 

quent Constitutional Amendment rsm%VLng the 

rG;%;;itlon b,: whloh its snaotment wau proguoh statutes are regarded au 

though :hep had never been in exlstenoe and 

are not in01ud06 in 5 tit ti al 

int%nded to oontinue 'sst& 

PrOYiUiOIk8 

Es ln tome 

until altered or rep%aleU by leglslatlra astlon, such provlslons having referenoe Only 

to auah laws as are oonstitutlonal and valid. 

Nor has a legislature any authority to ral- 

'idate %n unoonetitutional proseedIng W 

(~@lltUill O&8) 

The oases cited by you in your able bri%i 

interpret and construe Ye&dating or OuratiV% AOt8 

whioh are no designated by their terms. WI, hare been 

unable to find any authority holding an amendmant to 

a statute whioh materially tarles the terms oil the 

amended sot to oooupy the status of, or sefve the purpose or, a ourative Aot. 

We, therefore, hold that LB. 203, 8uprar 

while oonstltutional and valid, does not operate a8 

a retroaotlve law, and that olilaers are not %ntltl%d 

to be paid fees by the oounty from the tlsm of our 

holding LB. 727 wonstitutional to the erfeotlve 

date OS LB. 205. 

With reirenge to the e%o%nd part of your 

brief, we adhere to opinion No. O-077 written to you 

on Eay 12, 1939, by Assistant Attorney GeneralVim. 3. 

R.. Kiing. Of oourse eaoh inetanoe would depend uRon 

ite own fact situation, but we do not believe the substitution of the words ndisoharges the EWW by mean8 

of workin&, auoh fioe out oh the oounty roads or on 

any oounty #rojaot* In LB. 205, would oall foraterially different interpretation from that plaoed on 

the wclrds W%atisil.ad the fine and costs adjudge& 

against him In full by labor in ths workhouse, m the 

oounty farm, on the 5ublI.o roads or upon any uublio 

works of the county" as same appeared in Artiole 1055, 

C.C.Y.) prior to the amendment.~ Rapeoially Is ttis 
Xon. D. Richard Voges, page 4 

true when oonsldered in conneotlon with.the language 

of Artiole 793, G.C.P., as oonstrued by ILr. lCing in 

his opinlctl No. O-677. 

Article 793 provides in aubstanoe that where 

a derondsnt is oonvioted ot a misdemeanor and hia 

punishment is assessed at a psauniarg i$ne, ii he is 

unable to pay the rlne and oosts assessed against 

him he may ror such time as will satisfy the judgment 

be put to work in the workhouse, or on the oounty 

rtcm, or on public improvements or the oountp, of ir. 

there be no workhouse, farm or tiprorements, he 8hall 

be imprisoned in Jail. 

Youra very truly 

APPROVXD JUL 8, 1939