TEE A’ITORNEY GENE-I. 

OP !BJExAs 

Aprll2,19))9 

Eon. Pearce Johnson, Cbairmsn opinion Ro. v-801 

Committee on State Affairs 

Howe of Repesentatlves Re: .LegisfstlPe euthorlty 

Auscln, Texas to enact S.B/Ro. 87, 

relating to lssuauce 

of bonds by Robertson 

Dear Sir: County to fund outTs standing scrip. 

We have recefved your letter of March 18, 199, which 

Is quoted, In wt, as follows: 

.~. ,~. 

?he Comltt88 qu6StiOn8d bhe necessity Of 

the bill, and moved that it be sent to~the Attorney Cteneral for a report 8s to whether or 

.~ not thwblll'vas neoessary. In other vords, 

are ve giViI@ 8UthOId.ty t0 do SOIIWthiIIg that 

Is already~ permitted?" 

We are not In a posltlon to answer your question as to 

vhether thls bill is necessary. That IS 8 fact qUeStion which 

goes to the merits of the bill rather than Its valldlty. It 

Is assumed that you wish to knov vhether the proposed bill Is 

constltutloual, and, if so, whether It accomplishes something 

not already pro9lded for in 8XiStlUg Statutes. 

The propoded bill ls a special l.av dealing only with 

Robertson County. In Section 1 thereof the Com~Issloaers~ 

Court Is given authority to Issue refundlog bonds to refund 

road and bridge sarlp varrants of the county vblah are outst8ndlng on the effective dat8 of the eat, with the pvovlso, 

.hovever, that not more than $88,000 of reiundlng bonds shall 

be issued under the terms of the sat. 

Seatlon 2 relcrtes to the maturity dates, Interest 

rates, snd exeautlon of the bonds, snd pwovldes that no notloe of Intention to Issue the r?fundlng bonds shall be required. 
Hon. Pearce Johnson - Page 2 (v-801) 

Section 3 makes appliCabl8 to such refunding bonds 

the provisions of Articles 709 to 715, inclusive, Revised 

Civil Statutes, relating to approval of the bonds by the 

Attorney ffeneral and reglstrstion thereof by the Comptroller. 

Section 4 provides that 811 SCrip Varll8IItS OUtStandIng Of th8 8ff8OtiV8 d8t8 Of th8 aCt ar8 V8ltidsted. 

SeCtiOn 5 is the usual emergency Ol.aUSe. 

& examination of the caption reveals that it fully 

describes th8 provlslons of the act, and is sufficient, ass-Q3 f of oourse, that the act itself is constitutional. 

Section !56 of Article III, Constitution of Texas, 

prohibits the enactment of local or special lavs'vhich, 

among other things, regulate the ,affairs of counties, or 

which authorize the laying out, opening, altering or, malntaining of roads, highways, streets or alleys. This wohlbltion applies to all local and special laws "except as 

otherwise provided in this Constitution." 

It Is evident that this positive inhibition would 

preclude the valid enactment of the bill under conslderatlon unless 8Uthoritg therefor is found elsewhere lti the 

Constitution. Section 9 Of &tic18 VIII Of the COnStitution relates to certain county taxes, among which is the 

tax for road and bridge purposes. This section provides, 

in part, as follows: 

"And the L8gislAtUr8 may pass LOoal laWi for 

the maintenance of the public roads snd high- * 

ways, without th8 local notice required for 

special or local laws." 

If the proposed act in question comes within the 

pUrVi8W of th8 above-quoted prOViSiOn, then 1tS 8nWtm8nt 

is~ not prohibited by Section 56 of Article III. In the 

case of Henderson County v. Allred, 120 T. 483, 40 S. W. 

(26) 17, th8 Supreme Court had for conslderatlon the V8- 

lldlty of a special road law enacted for Henderson County, 
Hon. Pearce Johnson - Page 3 (v-801) 

similar to the proposed law under consideration. We quote 

from the opinion of the court as follows: 

"The act in ques.tion is a local or special 

road law enacted'for Henderson county without 

local notice having been given. Under its 

terms the commissioners' court of Henderson 

county was authorized to fund into bonds of 

the county such of Lts legal indebtedness 

chargeable against the road and bridge fund. 

as existed January 1, 1929, which might be 

represented by script or time warrants. It 

was also provided in said act that such fundlnq 

bonds might be issued without the necessity of 

submitting the question of their issuance to a 

Vote of t'he people of the county. 

I, 

. . . 

"Nor can the contention that the passage of 

th8 local or special road law for Henderson 

coun.ty is prohibited by the terms of section 

56, article 3, of the Constitution, be sustained. This section of the Constitution provides: 

'The legislature shall not, except as otherwise 

provided in this constitution, pass any local or 

special law: * * * authorizing the laying out, 

open:inq, altering or nmintalnlng of roads, highways, streets or alleys.' 

"The above provision is a part of the oriqlnal Constitution of 1876. Its terms operated 

to prohibit the Legislature without proper notice having been given from enacting any.local 

Jr special law in regard to public roads from 

the date of Its adoption in 1876 until December 19, 1290. On the latter date, however, 

section Q of article 8 was amended. The amendatory portion of this article contained the 

following; clause: 'And the legislsture may pass 

local laws for the maintenance of the public 

roads and hiqhways', without the local notice 

required for special or local laws.' 

. 
Hon. Pearce Johnson - page 4 (v-801) 

“On J8nuarg 7, 1907, S8CtiOn 9 Was ag8fn 

amended by changing ~lts former terms, but the 

above provision with reference to the passage 

of 1OC81 or SpeCi8l road 1aWS was re-8n8Oted 

in the Identical language in which it was 

originally adopted. 

"From the above-quoted prOViSiOnS of the 

Constitution, it will be readily seen that 

local or special road laws are expressly exempted from the operation of the ~OPiSiOnS 

of section 56, article 3. The power of the 

Legislature to enact such local or special 

laws without the required notice is there& 

fore placed beyond OaVil. 

11 

. . . 

11 

. . . If the Legislature pos'sessed the 

power to control by 10~81 or special laWS the 

laying out, construction, and maintenance of 

public roads in Henderson county, which cannot 

be doubted under the foregoing decisions, then 

it must necessarily follow that it has the power 

to control and regulate by such a law the expenditure of all funds used for such purposes. 

Undoubtedly, the Legislature might lawfully, 

by local law, have made provision for the issuance by the county of the warrants and script 

which it has now authorized to be funded Into 

negotiable bonds. The power to authorize the 

creation of -such indebtedness and to provide 

the form In which It shall be 8vid8no8d necessarily includes the power to authorize a change 

in the form thereof. 

11 

. . . Indisputably the Legislature had the 

power to authorize Henderson county by loCal or 

special law to issue warrants or bonds 8S 8 

means of obtaining funds to be used in the bulldlng and operation of its road system without submitting the question as to the issuanc8 thereof 

, 
Hon. Pearce Johnson - Page 5 (v-801) 

to a vote of the people of the county. This 

being true, it logically follows that, Where 

an indebtedness has been lawfully incurred 

for road purposes by Henderson county and its 

obligations iSSU8d therefor in the form of 

script and warrants, that the Legislature may 

validly authorize the county to change su.ch 

form of indebtedness by funding the same into 

the negotiable bonds of the county." 

It Is clear under this decision that Sectlons~ 1, 

2, and 3 of proposed Senate Bill No. @ constitute a valid 

exercise of legislative power, assuming that the scrip warrants were validly issued. 

Section 4 of the act provides that all scrip warrants outstanding on th8 effective date of the act are 

validated. It has been held time and agsin that the enactment of curative statutes constitutes a valid exercise of 

legislative power, snd that the Legislature can ratify 

anything that it could have authorized in,the first lnstance. Tom Green County v. Moody, 116 T..299, 289's. W. 

381; Hunt v. Atkinson (Corn. App.), 18 S. W. (2d) 594; 39 

Tex. Jur. 41. 

It is clear that the Legislature has the power to 

Validate any action that it could have authorized in the 

?irst instance; hOWeVer, It does not have the power to 

ra,tifg any a& which is prohibited under our constitution. 

In the case of Bigfoot Independent School Dist. v. Genard, 

x16 s. W. (2d) 804, affirmed 129 9. W. (2d) 1213, the court 

held as follows: 

II 

. . . It is conceded, and is obvious, 

that the Legislature has no power to validate an act which It did not have the power 

to authorize in the first instance; it cannot ratify an act it Gannet authorize. Here, 

the Constitution prohibited the imposition 

and levy of a tax upon the property embraced 

in an independent school district except when 
Hon. Peame Johnson - Page 6 (v-801) 

authorized by a majority of the taxpaying 

voters of the district at an election held 

for that purpose. The Legislature had no 

inherent or granted power to dispense with 

that aonstitutional requirement and authorize the trustee of the district to make such 

levy until the voters had acted favorably 

thereon, and not having the power to authorize the act in the first instance, it had no 

power to ratify or validate~it after it was 

committed without authority. 2 Cooleyta 

Conat. Lim., 8th Ed. 791; 39 Tex. Jur. p. 

41, % 19; Tom Green County v. Moody, II6 

Tex. 299, 289 9. W. 381." 

Thus, Section 4 would have the effect of validating the scrip warrants of the cow&g insofar as nonconstitutional objec~tlons are concerned. If there were 

certain errors or~om1asions in the issuance of the warrants, but these were statutory objections and not constitutional objections, then after the act would beoome 

effective,- such errors and omissions would become imma: ,. 

terial. For example, The Bond and Warrant L&w (Artiale 

2368a, V. C. 3.) prohibits the commissioners* court from 

making any contract calling for the expenditure of 

$2;000.00 or more of any county funds without first sub-~ 

mitting the contract to competitive bids. Advertisement 

has to be made, and the successful bidder must give a 

performance bond. These steps are required by statute, 

and not by the Constitution. If the steps are not taken, 

then under the statute the contract is void. However, the 

Legislature may enact a validation statute which would 

dispense with these'objections. 

We have said above that the Legislature does not 

have the power to validate an unconstitutional act. It 

is too well settled to require citation of authority that 

scrip warrants are payable out of aurrent revenues, and 

that to constitute valid obligations they must be within 

the reasonably ancitipated revenues of the oounty for the 

year in which they were issued. Otherwise, they would be 
Hon. Pearce Johnson - Page 7 (v-801) 

unconstitutional under Section 7 of Article XI, Constitution of Texas. This section prohibits cities and 

counties from incurrinS,a debt unless at the time of 

the creation thereof provision is made for the levy and 

collection of a sufficient tax to pay the same. Unless 

scrip warrants are within the reasonably contemplated 

revenues of the county, they would constitute debts 

within the prohibition of Section 7, and, as no tax is 

levied therefor, would be unconstitutional obligations. 

See 11 Tex. Jur. 670 and authorities cited therein, 

Thus, Section 4 'of the act, if It is enacted, I 

would have the effect of validating the scrip warrants 

as to non-constitutlona1 objections. It could not validate any scrip warrants which are unconstitutional. 

You ask whether the act accomplishes~ something 

not already provided for in existing statutes. 1~ the 

first place, as we have already pointed out, the act 

contains a validation provision. In the second place, 

although validly issued scrip warrants may be funded 

into bonds under Article 2368a, supa, 3ection7 of the 

statute requires published notice of intention to issue 

such bonds and authorizes the filing of a referendum 

petition. Section 2 of the proposed act provides that 

"no notice of lntentlon to issue such refunding bonds 

shall be required~." 

SUMMARY 

Proposed Senate Bill No. 87, a special road law 

for Robertson County which authorizes the issuance of 

bonds to refund certain scrip warrants of the county 

without the necessity of a notice of intention to issue 

such bonds, If enacted in the form~submitted to this 

der‘artment, would beg constitutional. 

Section 4 of the act, which validates such scrip 

warrants, would have the effect of curing objections to 
the warrants which were not constitutional in nature, 

but could not valUla%e my unconstitutional warrants. 

Very truly yours 

ATTORREYGIENERALOFTEXA3 

Bi b-t-$+w. f+ 

Oe ge W. Spar w 

Assistant - 

m-s-8 

APPROVED: 

Ron. Pearce Johnson - Page 8 (v-801)