### THE ATTORSET GENERAL OF TEXAS

October 26, 1989

Honorable Edwin E. Powell, Jr. Opinion No. JM-1111 Coryell County Attorney P. 0. Box 796 Re: Obligation of a commis113South 7th sioners court to rent space Gatesville, Texas 76528 outside the courthouse for the county surveyor (RQ-1720)

**Dear** Mr. Powell:

You ask about a county's obligation topay for office space for the county surveyor. Specifically, you ask whether a county must pay foroffice space forthe county surveyor outside the county courthouse. Your question requires us to consider the continuing validity of Attorney General Opinion o-3229 (1941), which held that it is entirely within thediscretion of the commissioners court to determine whether the county will provide office space for the county surveyor. See also Attorney General opinion O-5685 (1943) (dealingwith acounty's responsibility to provide stationery forcounty surveyor).

Attorney General Opinion O-3229 (1941)considered the effect of two conflicting statutes. One statute, which was codified asarticle 5283, V.T.C.S., provided that a county must provide office space for the county surveyor under certain circumstances:

A county surveyor shallbe elected ineach county at each general election foraterm of twoyears. He shall reside inthe county and keep his office at the courthouse or some suitable building at the county seat, the rent therefor to be paid by the commissioners' court on satisfactory showing that the rent is reasonable, the office necessary and that there is no available office at the courthouse.

V.T.C.S. art. 5283 (Vernon 1926); see also Law ofAug. 18, 1876, ch. 114, 1876Tex. Gen. Laws 196; 8H. Gammel, Laws of Texas 1032 (1876) (original enactment). A later enacted statute, which was codified asarticle 3899b,V.T.C.S., left

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itentirely to the discretion of commissioners courts to determine whether the county would provide office space to the county surveyor. Acts 1929, 41st Leg., ch. 207, at 448. InAttorney General Opinion O-3229 this office concluded that the later enacted statute, article 389913,had impliedly repealed article 5283 and therefore that county commissioners court had discretion todetermine whether to provide office space to the county surveyor. See also Tex

. Const. art. XVI, §44; Local Gov't Code 5 291.001 (both providing that the county surveyor "shallhave an office at the county seat").

Both of the statutes considered in Attorney General Opinion O-3229 have been affected by the ongoing statutory revision process provided for in section 323.007 of the Government Code, which directs the legislative council to plan and execute aprogram ofnonsubstantive recodification. See senerallv Collins, Continuino Statutorv Revision: Where Did the Civil Practices and Remedies Code Come From?, 50 Tex. B.J. 134 (1987). The recodification program is not intended to alter the "sense, meaning, or effect" of a statute. Gov't Code §323.007. Nonetheless, the process has resulted inthe express repeal and reenactment of former article 5283,which this office hadheld tobe impliedly repealed, and the express repeal, without reenactment, of former article 389913. Those changes call into question the continuing validity ofAttorney General Opinion O-3229.

In 1977 the legislature adopted theNatural Resources Code. Acts 1977, 65th Leg., ch. 871, at 2345. In enacting the code, the legislature repealed article 5283, the provision the attorney general had held to be impliedly repealed, and reenacted it, inpart, as section 23.016 of the Natural Resources Code. Id. at 2368. That section reads as follows:

(a)The county surveyor's office shall be located inthe courthouse or ina suitable building at the county seat.
(b)Rent for anoffice outside the courthouse shall bepaid by the commissioners court on showing that:
(1)the rent isreasonable:
(2)the office isnecessary; and
(3)an office isnot available at the courthouse.

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A foreword to the proposed Natural Resources Code states that. the drafting involved eliminating impliedly repealed provisions, but does not explain how the legislative council determined whether aprovision had been impliedly repealed.1 Johnson, Foreward To Prooosed Code: Revisor's Reoort. November, 1976, Nat. Res. Code, at IX (1978). Inany case, despite their intention to eliminate impliedly repealed provisions, the drafters did not eliminate former article 5283.

By itself, the reenactment of former article 5283would not affect theholding ofAttorney General Opinion o-3229. The enactment dates of specific statutes, rather than the dates onwhich theywere reenacted and codified aspart of the program of nonsubstantive recodification, determine which of two conflicting statutes prevails. Alexander 1, Ranch Inc.v. 733 S.W.2d 303, 308 (Tex.App. - Eastland 1987, writ ref'd n.r.e.), cert. denied, 108S.Ct. 2005 (1988); accord State v.TaDlin, 247 A.2d 919 (Me.1968).

The legislature complicated **matters,** however, by expressly repealing article 3899bwhen itadopted the Local

1. The revisor's note to section 1.002 of the code offers insight intothe difficulty indetermining whether a particular provision hadbeen impliedly repealed:

With the adoption of the Administrative Procedure andTexas Register Act, anumber of **state** laws relating to state agency procedure
were impliedly repealed. In cases in which statutes assigned to this code for revision
were obviously repealed by that Act, corrections have been made. However, the absence of court interpretations of the APA and thepossibility thatmany laws assigned to this codemay require court consideration before a determination canbe made as to whether in fact they were repealed by the APA, those laws have been revised and included in this code. [Discussion of provision insuring thatAPA provisions would prevail overprovisions reenacted incode.]

Nat. Res. Code **5 1.002**  **revisor ’** **s** note (1978).

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Government Code in 1987.2 Acts 1987, 70th Leg., ch. 149, at 707.. The repeal of article 3899bby the enactment of the Local Government Code raises the question ofwhether the provisions of former article 5283, now codified as section 23.016 of the Natural Resources Code, are again effective
even though both recodifications were intended to be nonsubstantive.

Section 23.106 isnow the only statute -- either inthe codes or inthe revised statutes --dealing with a county's obligation toprovide office space forthe county surveyor, and it is unambiguous on its face. Current rules of statutory construction do allow courts to consider the legislative history of even anunambiguous statute. Gov't Code 8 311.023. In iv. B ant 722 S.W.2d 738, 740 (Tex.App. -Houston [14thDist.] 1986,
nowrit), the court held that acourtmay inquire into the intent of a recodified statute that isclear on its face if the legislature has stated that the recodification is not intended to change the law and the recodification does in factmake a substantive change. Comoare Ex carte Olden, 199 P.2d 228 (Okla.Crim. App. 1948) (inclusion of 1913 statute impliedly repealed by 1915 statute in 1941 codification does notvalidate 1913 law), with Atchlev v. Board of Barber Examiners, 257 P.2d 302 (Okla. 1953) (code is law even though itmay contain sections theretofore repealed).

Wedo not think, however, that acourt would consider legislative history tobe so significant that itwould hold

2. The revisor's note at the end of chapter 152 of the Local Government Code lists including article 389913,thatwerz number of provisions, repealed aspart of the enactment of the Local Government Code. The note states that those provisions were repealed because they are ineffective or obsolete.

3. The Texas legislature hasprovided that the repeal of a repealing statute does not revive the statute originally repealed. Gov't Code 55 311.030 (applicable to codes), 312.007 (applicable to civil statutes). This rule
was clearly intended toprevent revival of a statute by the repeal of a statute expressly repealing the original statute. We donot think the rule necessarily applies, however, when the original statute was merely impliedly repealed --particularly when no court ever determined that the original statute had in factbeen impliedly repealed.

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that aprovision that has notbeen carried forward in any form is still the law. InCarbide Int'l v. State, 695 S.W.2d 653 (Tex. APP. - Austin 1985,no writ), the court wrote:

The codification process isapart of the

Legislature's larger power to revise laws.

. . . The purpose of the process is not to change the substantive law but to supply a convenience by rearrangement of separate statutes relating to the same subject, so as toachieve a complete and uniform system of statutory lawdealing with the subject. Tex. Natural Resources Code Ann. 5 1.001. When adopted by the Legislature ina constitutional manner, the resulting Code asa whole constitutes a law inand of itself, and not amere compilation of previous statutes, save in certain respects notmaterial here. The Codebecomes the statutorv lawof the State resnectino the subiects to which it relates, suversedinq previous statutes omitted therefrom revealed therebv. so that anvone subiect :: itsvrovisions mav look to the Code alone with safetv and confidence. and without resortina to thevrevious statutes exceot to exvlain contradictions and ambisuities. (Emphasis added.)

a. at 656 n.3; see alsoAmerican Indem. Co. v. Citv of Austin, 246 S.W. 1019, 1025 (Tex. 1922).

We think that acourt, if facedwith the question you present, would hold that, whatever happened in the recodification process, section 23.106 nowgoverns the issue ofa county's responsibility topay foroffice space forthe county surveyor. Otherwise, counties would have to look to
an expressly repealed statue inorder todetermine their responsibilities inregard to office space forthe county surveyor. We conclude, therefore, that Attorney General Opinion O-3229 isno longer acorrect statement of the law and that a county must follow theprovisions of section 23.016 of theNatural Resources Code indetermining whether itmust pay foroffice space outside the county courthouse forthe county surveyor.

You state in your brief that the decision of the Coryell County Commissioners Court not to pay for office space outside the county courthouse forthe county surveyor

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wasbased on both the county's unlimited discretion to determine whether toprovide office space forthe county surveyor, aswell asadetermination that the space was not necessary. Because Attorney General Opinion O-3229 **iS** no longer a correct statement of the law, the commissioners court did not have unlimited discretion in regard to the provision of office space for the county surveyor. If, however, there was no showing that the office space outside the courthouse was necessary, the commissioners court did have authority, under section 23.016 of the Natural Resources Code, to refuse topay for office space for the county surveyor.

SUMMARY

A county must follow the standards set in section 23.016 of theNatural Resources Code indetermining whether topay for office space outside the county courthouse for the county surveyor.

MARY KELLER FirstAssistant Attorney General

MU MCCREARY Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY Special Assistant Attorney General

RICK GILPIN Chairman, Opinion Committee
Prepared by Sarah Woelk Assistant Attorney General

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