The Attorney General of Texas 

December 9, 1977 

JOHN L.HlLL 

Attorney General 

Honorable Joe Hubenak 

Chairman, Committee on 

Agriculture and Livestock 

House of Representatives 

Austin, Texas 

Dear Chairman Hubenak: 

Opinion No. H- 1102 

Re: Constitutionality 

of H.B. 11 in ratifying 

actions taken to participate in the National 

Flood Insurance Program. 

You have requested our opinion concerning the effect 

and constitutionality of section 2 of House Bill 11, which 

ratifies the proceedings and actions of any political subdivision "with respect to participation in and compliance 

with the National Flood Insurance Program." Acts 1977, 

65th Leg., 1st Called Session, ch. 4, at 58. This portion 

of House Bill 11 was passed as a curative act to validate 

actions taken in such regard without proper authority. 

See Attorney General Opinion H-1011 (1977). - 

Your questions are essentially as follows: 

(1) Does the Texas Legislature have the 

power to ratify, confirm, approve, 

and validate past, unauthorized actions taken between June 30, 1970 

and September 1, 1977, supposedly 

under Article 8280-13, V.T.C.S., by 

those counties and political subdivisions which had not qualified 

for participation in the National 

Flood Insurance Program by June 30, 

1970? 

(2) Does House Bill No. 11 destroy all 

those causes of action for damages, 

injunctive relief and/or taxpayer 

relief which may have arisen since 

June 30, 1970 against,those counties 

and other political subdivisions 

which took unauthorized actions, as 

described above in question cl)? 

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Honorable Joe Hubenak - Page 2 (H-1102) 

(3) Does House Bill No. 11 violate 

Article I, Section 16 of the Constitution of the State of Texas, 

which reads: 

No bill of attainder, ex 

post facto law, retroactive 

law, or any law impairing 

the obligation of contracts, 

shall be made. 

It is well established that the Legislature may validate 

a statute or act of a political subdivision so long as it 

originally had power to enact or authorize it. Perkins v. State, 

367 S.W.2d 140, 145 (Tex. 1963): State v. Bradford, 50 S.W.2d 

1065 (Tex. 1932); Anderson County Road D list. No, 8 v. Pollard, 

296 S.W. 1062 (Tex. 1927); I Nolan County v. State, 17 S.W. 823 

(Tex. 1891). Such statutes of tour se must be consistent with 

the Constitution. 

Article 1, section 16 has been construed to prohibit the 

enactment of only those retroactive laws which impair vested 

rights. Deacon v. City of Euless, 405 S.W.2d 59, 62 (Tex. 1966); 

cox v. Robison, 150 S.W. 1149, 1156 (Tex. 1912); Attorney 

General Opinion H-634 (1975). Curative statutes are necessarily 

retroactive, since they are "intended to act upon past transactions. . . .II Hunt County v. Rain County, 7 S.W.2d 648, 649 

(Tex. Civ. App. -- Texarkana 1925, no writ). Texas courts have 

upheld a number of curative statutes without discussion of article 1, section 16, including statutes which validate the formation of districts and their issuance of bonds and collection of 

taxes. Matlock v. Dallas County Arcadia Fresh Water Supply Dist. 

NO. 1, 12 S.W.2d 181 (Tex. Comm'n App. 1929, opinion adopted); 

Anderson County Road Dist. v. Pollard, supra; Brown v. Truscott 

Independent School Dist., 34 S.W.2d 837 (Tex. Comm'n App. 1931, 

jdgmt adopted). Similarly, want of authority to annex property 

has been held cured by validation. Hunt v. Atkinson, 17 S.W.2d 

780 (Tex. Comm'n App. 1929, jdgyt $c$ed). In Matlock v. Dallas 

County Arcadia Fresh Water Supp y . No. 1 su ra 

held that taxes levied by an invalidly establ~s&~t~~d?%Ect 

had been validated by the Legislature and could be collected from 

the individual defendant. To the extent that the Texas courts 

have spoken on the subject, they have upheld curative statutes 

against claims based on article-l, section 16. Brown v. Truscott 

Independent School Dist., supra; Louisiana Ry. & Nav. Co. v. State, 

298 S.W. 462, 466 (Tex. Civ. App. -- Dallas 1927), aff'd, 7 

S.W.2d 71 (Tex. Comm'n App. 1928, jdgmt adopted) (dm. 

p. 4517 
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Honorable Joe Hubenak - Page 3 (H-1102) 

The,failure of the courts to discuss the impact of article 

1, section 16 on curative statutes suggests that it does not 

prohibit them. One court has, however, indicated that a validating statute cannot divest a private right acquired under a 

final judgment. Inman v. Railroad Comm'n, 478 S.W.2d 124, 129 

(Tex. Civ. App. -- Austin 1972, writ ref'd n.r.e.). In our 

opinion, the courts would probably find that validating statutes may constitutionally cut off causes of actions and defenses 

which have not yet been secured in a final judgment. This 

determination would be consistent with the implications of the 

cases upholding curative statutes. 

The courts have stated that validating statutes should 

be liberally construed. Perkins v. State, -367 S.W.2d 140 (Tex. 

1963); City of Mason v. West Texas Utilities Co., 237 S.W.2d 

273 (Tex. 1951). They have also recognized that private persons 

may in qood faith invest money in reliance on unauthorized 

actions-of counties. Citv of Mason v. West Texas Utilities Co., 

supra at 275; see also Hunt County v. Rain County- I ------ sunra at -~- 654. -- 

In view of the public interests served bv validat ling statutes, 

the courts may be-reluctant to recognize-new kinds of vested 

rights that would interfere with the implementation of such 

statutes. In our opinion, the courts would find that House 

Bill 11 destroys the causes of action you mention without violating article 1, section 16 of the Texas Constitution. 

SUMMARY 

Section 2 of House Bill 11, 65th Legislature, First Called Session, which 

ratifies past unauthorized actions by 

political subdivisions with respect to 

participation in the National Flood 

Insurance Program, is a valid exercise I 

of legislative authority. It does not 

violate article 1, section 16 of the 

Texas Constitution and destroys any 

cause of action based on lack of legislative authority for the actions ratified. 

of Texas 

p. 4518 
Honorable Joe Hubenak - Page 4 (H-1102) 

MPPROVED: 

!i&b-J& 

DAVID M. KENDALL, First Asslstant 

c. ROBERT HEATH, Chairm'an 

Opinion Committee 

jst 

p. 4519