# TheAttorney General ofTexas

December 9, 1977 JOHNL.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 toparticipate in theNational Flood Insurance Program.

You have requested our opinion concerning the effect and constitutionality of section 2of House Bill 11,which ratifies theproceedings and actions of any political subdivision "with respect toparticipation inand compliance with theNational Flood Insurance Program." Acts 1977, 65th Leg., 1stCalled Session, ch. 4,at 58. This portion of House Bill 11was passed as a curative act tovalidate actions taken in such regard without proper authority. SeeAttorney 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 theNational Flood Insurance Program by June 30, 1970?
(2) Does House Bill No. 11destroy all those causes of action fordamages, 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 inquestion cl)?

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(3) Does House Bill No. 11violate Article I, Section 16of 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 bemade.

It iswell established that the Legislature may validate
a statute or act of apolitical 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, 8v. Pollard, 296 S.W. 1062 (Tex.1927); INolan County v. State, 17 S.W. 823 (Tex.1891). Such statutes of toursemust be consistent with the Constitution.
Article 1, section 16has been construed toprohibit the enactment of only those retroactive lawswhich 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 toact upon past transactions.

. . .IIHunt County v. Rain County, 7 S.W.2d 648, 649 (Tex.Civ. App. -- Texarkana 1925, nowrit). Texas courts have upheld anumber 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 byvalidation. Hunt v.Atkinson, 17 S.W.2d 780 (Tex.Comm'n App. 1929, jdgyt $c$ed). InMatlock 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.

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The,failure of the courts todiscuss the impact of article 1, section 16on curative statutes suggests that itdoes not prohibit them. One court has, however, indicated that avalidating statute cannot divest aprivate 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 courtswould probably find thatvalidating 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 thatvalidating statutes should be liberally construed. Perkins v. State,-367 S.W.2d 140 (Tex. 1963); City ofMason v.West Texas Utilities Co., 237 S.W.2d 273 (Tex. 1951). They have also recognized thatprivate persons may inqood faith invest money in reliance on unauthorized actions-of counties. Citv ofMason v.West Texas Utilities Co., supra at 275; see also Hunt County v. Rain County- sunra at 654.
I ------ -~- -- Inview of thepublic interests served bv validatlingstatutes, the courtsmay be-reluctant to recognize-new kinds of vested rights thatwould interfere with the implementation of such statutes. In our opinion, the courtswould find that House Bill 11destroys the causes of action youmention without violating article 1, section 16of theTexas Constitution.

SUMMARY
Section 2of House Bill 11, 65th Legislature, First Called Session, which ratifies past unauthorized actions by political subdivisions with respect to participation in theNational Flood Insurance Program, is avalid exercise I of legislative authority. Itdoes not violate article 1, section 16of the Texas Constitution and destroys any cause of action based on lack of legislative authority for the actions ratified.

of Texas

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MPPROVED: 

# !i&b-J&

DAVID M. KENDALL, First Asslstant

c. ROBERT HEATH, Chairm'an Opinion Committee jst

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