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 commis113 South 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 to pay for office 

space for the county surveyor. Specifically, you ask 

whether a county must pay for office space for the 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 the discretion 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) (dealing with a county's responsibility to 

provide stationery for county surveyor). 

Attorney General Opinion O-3229 (1941) considered the 

effect of two conflicting statutes. One statute, which was 

codified as article 5283, V.T.C.S., provided that a county 

must provide office space for the county surveyor under 

certain circumstances: 

A county surveyor shall be elected in each 

county at each general election for a term of 

two years. He shall reside in the 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 of Aug. 18, 

1876, ch. 114, 1876 Tex. Gen. Laws 196; 8 H. Gammel, Laws of 

Texas 1032 (1876) (original enactment). A later enacted 

statute, which was codified as article 3899b, V.T.C.S., left 

P. 5824 
Honorable Edwin E. Powell, Jr. - Page 2 (JM-1111) 

it entirely 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. 

In Attorney 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repealed article 5283 and therefore that county 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 to determine 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 "shall have 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 a program of nonsubstantive 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 in the express repeal and reenactment of former 

article 5283, which this office had held to be impliedly 

repealed, and the express repeal, without reenactment, of 

former article 389913. Those changes call into question the 

continuing validity of Attorney General Opinion O-3229. 

In 1977 the legislature adopted the Natural 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, in part, 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 in the courthouse or in a suitable 

building at the county seat. 

(b) Rent for an office outside the courthouse 

shall be paid by the commissioners court on 

showing that: 

(1) the rent is reasonable: 

(2) the office is necessary; and 

(3) an office is not available at the 

courthouse. 

P. 5825 
Honorable Edwin E. Powell, Jr. - Page 3 (JM-1111) 

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 a provision had been 

impliedly repealed.1 Johnson, Foreward To Prooosed Code: 

Revisor's Reoort. November, 1976, Nat. Res. Code, at IX 

(1978). In any case, despite their intention to eliminate 

impliedly repealed provisions, the drafters did not 

eliminate former article 5283. 

By itself, the reenactment of former article 5283 would 

not affect the holding of Attorney General Opinion o-3229. 

The enactment dates of specific statutes, rather than the 

dates on which they were reenacted and codified as part 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, 108 S.Ct. 2005 (1988); accord State v. TaDlin, 247 

A.2d 919 (Me. 1968). 

The legislature complicated matters, however, by 

expressly repealing article 3899b when it adopted the Local 

1. The revisor's note to section 1.002 of the code 

offers insight into the difficulty in determining whether a 

particular provision had been impliedly repealed: 

With the adoption of the Administrative 

Procedure and Texas Register Act, a number 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 the possibility that many laws assigned 

to this code may require court consideration 

before a determination can be 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 that APA provisions would 

prevail over provisions reenacted in code.] 

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

p. 5826 
Honorable Edwin E. Powell, Jr. - Page 4 (JM-1111) 

Government Code in 1987.2 Acts 1987, 70th Leg., ch. 149, at 

707.. The repeal of article 3899b by the enactment of the 

Local Government Code raises the question of whether 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 is now the only statute -- either in the 

codes or in the revised statutes -- dealing with a county's 

obligation to provide office space for the county surveyor, 

and it is unambiguous on its face. Current rules of 

statutory construction do allow courts to consider the 

legislative history of even an unambiguous statute. Gov't 

Code 8 311.023. In iv. B ant 

722 S.W.2d 738, 740 (Tex. App. - Houston [14th Dist.] 1986, 

no writ), the court held that a court may inquire into the 

intent of a recodified statute that is clear on its face if 

the legislature has stated that the recodification is not 

intended to change the law and the recodification does in 

fact make 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 

not validate 1913 law), with Atchlev v. Board of Barber 

Examiners, 257 P.2d 302 (Okla. 1953) (code is law even 

though it may contain sections theretofore repealed). 

We do not think, however, that a court would consider 

legislative history to be so significant that it would hold 

2. The revisor's note at the end of chapter 152 of the 

Local Government Code lists 

including article 389913, that werz 

number of provisions, 

repealed as part 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 has provided 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 to prevent revival of a statute by the 

repeal of a statute expressly repealing the original 

statute. We do not 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 fact been impliedly repealed. 

P. 5827 
Honorable Edwin E. Powell, Jr. - Page 5 (JM-1111) 

that a provision that has not been carried forward in any 

form is still the law. In Carbide Int'l v. State, 695 

S.W.2d 653 (Tex. APP. - Austin 1985, no writ), the court 

wrote: 

The codification process is a part 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 to achieve a complete and 

uniform system of statutory law dealing with 

the subject. Tex. Natural Resources Code 

Ann. 5 1.001. When adopted by the 

Legislature in a constitutional manner, the 

resulting Code as a whole constitutes a law 

in and of itself, and not a mere compilation 

of previous statutes, save in certain 

respects not material here. The Code becomes 

the statutorv law of the State resnectino the 

subiects to which it relates, suversedinq 

previous statutes omitted therefrom 

revealed therebv. so that anvone subiect :: 

its vrovisions mav look to the Code alone 

with safetv and confidence. and without 

resortina to the vrevious statutes exceot to 

exvlain contradictions and ambisuities. 

(Emphasis added.) 

a. at 656 n.3; see also American Indem. Co. v. Citv of 

Austin, 246 S.W. 1019, 1025 (Tex. 1922). 

We think that a court, if faced with the question you 

present, would hold that, whatever happened in the 

recodification process, section 23.106 now governs the issue 

of a county's responsibility to pay for office space for the 

county surveyor. Otherwise, counties would have to look to 

an expressly repealed statue in order to determine their 

responsibilities in regard to office space for the county 

surveyor. We conclude, therefore, that Attorney General 

Opinion O-3229 is no longer a correct statement of the law 

and that a county must follow the provisions of section 

23.016 of the Natural Resources Code in determining whether 

it must pay for office space outside the county courthouse 

for the 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 for the county surveyor 

P. 5828 
Honorable Edwin E. Powell, Jr. - Page 6 (JM-1 111) 

was based on both the county's unlimited discretion to 

determine whether to provide office space for the county 

surveyor, as well as a determination 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 to pay for office space for the 

county surveyor. 

SUMMARY 

A county must follow the standards set 

in section 23.016 of the Natural Resources 

Code in determining whether to pay for office 

space outside the county courthouse for the 

county surveyor. 

MARY KELLER 

First Assistant 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 

P. 5829