General Thomas S. Bishop Opinion No. C-700 

Adjutant General 

Adjutant General's Dept. Re: Constitutionality of Section 

Austin, Texas 5 of Article 5766 as amended 

by House Bill 410, Acts of 

the 59th Legislature; Regular 

Session, Chapter 690, page 

Dear General Bishop: 1601, at page 1604. 

You have requested ouropinion on the validity of 

SeCtiOn 5 of Article 5766, Vernon's Civil Statutes, as amended, 

which reads as follows: 

"Section 5. (a) Any member of the State Military 

Forces going to and returning from any parade, encampment, drill or other meeting which he may be required 

by law to attend, shall, together with his conveyance 

and military property, be allowed to pass through all 

toll roads, bridges and ferries, free of charge, if he 

is in uniform and if he presents an order for duty or 

such identification as the Adjutant General shall prescribe. 

“(b) Any member of the State Military Forces who 

claims the privilege conferred in Subsection (a) when 

he is not in truth and in fact in the status therein 

mentioned shall upon conviction thereof be guilty of a 

misdemeanor punishable by a fine of not less than Fifty 

Dollars ($50) nor more than Two Hundred Dollars ($200)." 

The question raised in your request 1s whether the 

above-quoted provisions impair the obligation of the contract 

entered into by the Texas Turnpike Authority pursuant to the 

provisions of Article 6674v, dated April 1, 1965, the same 

being a trust agreement pursuant to Section 11 of Article 667b, 

Vernon's Civil Statutes. Section 502 of the trust agreement 

reads as follows: 

"Section 502. The Authority covenants that tolls 

will be classified in a reasonable way to cover all 

traffic, so that the tolls may be uniform in application 

to all traffic falling within any reasonable class regard- 

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Gen. Thomas S. Bishop, page 2 (c-700) 

less of the status or character of any person, firm or 

corporation participating in the traffic; that no reduced 

rate of toll will be allowed within any such class except through the use of commutation or other tickets 

or privileges based upon frequency or volume and that 

no free vehicular passage will be permitted over the 

(Tollway) (Turnpike) other than its approaches and 

service roads, except to members, officers, employees, 

agents and representatives of the Authority and the 

State Highway Department, police officers of the United 

States, of the State of Texas and of its political subdivisions, but only when any of them is acting in the 

discharge of their official duties." 

Section 16 of Article I of the Constitution of Texas 

prohibits the enactment of any law im airing the obligation of 

contracts. Section 11 of Article 667 i v authorizes the Texas 

Turnpike Authority to enter into trust agreements providing 

for the issuance of bonds and making provisions protecting and 

enforcing the rights and remedies of the, bond holders. Section 

12 of Article 6674~ provides that the tolls shall not be subject 

to 

or 

supervision or regulation by any other commission, board,. 

bureau of the State. 

The Supreme Court of Texas in Texas Turnpike Authority 

-FT-%-- 

v. She erd, 279 S.W.2d 302 (1955), in passing~upon the validity 

Artic e 6674v, recognized that this article granted to the 

Texas Turnpike Authority the power to create contractual obligations which cannot be impaired in view of the provisions of 

Section 16 of Article I of the Constitution of Texas; therefore, 

the question before us is whether Section 502 of the trust agreement created an obligation which is impaired by the provisions of 

Section 5 of Article 5766 as amended by the 59th Legislature. 

In the case of Travelers' Ins. Co. v. Marshall, 76 S.W.2d 

1007 (Tex. Sup., 1934), it was held that the existence of the industrial depression of the 1930's did not authorize the Legislature 

under the police power to enact even emergency legislation of a 

limited duration which impaired the obligation of contracts and 

therefore held invalid the Emergency Moratorium Law enacted in 

1934. Likewise, Lanuever v. Miller, 76 S.W.2d 1025 (Tex.Sup:, 

19x&), held invalid for the same reason an act to cancel deficiency 

judgments during the same period. In Langever v. Miller, supra, 

it is stated: 

"We are not much concerned w-ith the superfine distinction sometimes drawn in discussing the impairment of the 

obligation of contracts, between the 'obligation' and the 

'remedies' for their enforcement. We agree with what the 

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Gen. Thomas S. Bishop, page 3 (c-700) 

Supreme Court of Alabama said in the case of Sanders v. 

Cabaniss, 43 Ala. 173, 188, when discussing legislative 

encroachments on the judiciary: 'It is a very clear 

proposition, that what cannot lawfully be done directly, 

cannot be done indirectly--no device, though it be so 

cunningly contrived as to make wrong appear to be right, 

can justify it.' It seems to us that the act before us 

does in fact operate upon and impair the 'obligation' of 

the contract, in that it nullifies that portion of the 

contract, read in the light of the then existing statute, 

which entitled the mortgagee to a deficiency judgment. 

But, if the statute be regarded as one which merely 

operates upon the remedy or remedies for the enforcement 

of the contract, it is obvious that it abridges the rights 

of the mortgagee resulting from the stipulations in the 

agreement in such manner as to make the contract less 

valuable, and denies him lawful remedies which existed 

when the instrument was executed without substituting 

therefor others equally valuable and equally effective. 

11 

. . . 

""'One of the tests that a contract has been impaired 

is, that its value has by legislation been diminished. It 

is not by the Constitution to be impaired at all. This is 

not a question of degree or manner or cause, but of encroaching in any respect on its obligation, dispensing with any 

part of its force."' Planters' Bank v. Sharp et al., b How. 

301/12 L.Ed. 441/. 

11 . . . 

"'Any impairment of the oblFgation of a contract, is 

within the prohibition of the Constitution; the degree of 

im airment being immaterial. 

31x, 21 L.Ed. 357. 

Walker v. Whitehead, 16 Wall. 

"'By the obligation of a contract is meant the means, 

which at the time of its creation the law afforded for its 

enforcement. Louisiana v. St. Martin's Parish, 111 U.S. 

716, 4 s.ct.-648, 28 L.Ed. 574; Van Hoffman v. Quincy, 4 

Wall. 535, 18 L.Ed. 403. 

""While it is undoubted," 

6, 6 321), 

says Ruling Case Law (volume 

"that the legislature may make changes in the 

remedy, it is necessary that the contract should be left 

with the same force and effect, including the substantial 

means of enforcement, which existed when it was made." 

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Gen. Thomas S. Bishop, Page 4 (c-700) 

"'By the same authority the doctrine is announced 

that the most certain test of impairment is that the 

value of the contract has been diminished. 

p. 329, 8 520.1" 

volume 6, 

(Emphasis supplied by the Court) 

stated: 

In Travelers' Ins. Co. v. Marshall, supra, the Court 

"We are asked, however, to hold that, under the 

P.l&!&Ey> one of the powers of government (State v. 

, 9 Conn. 190, 113 A. 385) vitalized by emergency 

conditions, the Legislature had the authority to pass 

the measure before us. 

the Bill of Rights, 

We are asked to do this, although 

section 16, expressly prohibits the 

enactment of laws impairing the obligation of contracts. 

Can we do this? . . . 

"Obviously all these questions must be answered in 

the negative. This is so because the pronouncements of 

the Constitution are 'imperious, supreme and paramount.' 

As said by a leading authority: 

"'Necessity that is higher than the Constitution 

can safely have no place in American jurisprudence. That 

principle is necessarily vicious in its tendency, and. 

subversive of the Constitution. It should be, and is, 

limited by the constitutional inhibitions. * * *The 

Constitution, and a controlling necessity antagonistic 

to its requirements, cannot exist.' , . . 

"Since the impairment of the obligation of contracts 

is prohibited by section 16, article 1, of the Bill of 

Rights, without any specified exception in favor of legislative action to the contrary during industrial depressions 

or emergency periods, we are without power to write such 

an exception into the organic law. As said by one of the 

Texas authorities previously cited: 'The enactment of laws 

impairing the obligation of contracts is forbidden by 

section 1.6 of article 1 of the constitution of Texas. * * * 

The limitation thus imposed is emphatic, unambiguous andwithout exception; it applies alike to all contracts and 

protects all obligations of contracts from destruction or 

impairment by subsequent legislation.' 9 Texas Jur. p. 541, 

6 106. 

"However, we will not rest our opinion here, but out 

of deference to the importance of the legislation before us, 

will enter upon an inquiry as to whether or not, in view of 

the history of the contract clause and the decisions relative 

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Gen. Thomas S. Bishop, page 5 (c-700) 

to it, the police or general governmental power may be 

so applied to it in times of emergency as to permit the 

legislation here involved. The meaning which a constitutional provision had when adopted, it has to-day; its 

intent does not change with time nor with conditions; 

while it operates upon new subjects and changed conditions, 

it operates with the same meaning and intent which it had 

when formulated and ado ted. 

6 Ruling Case Law, p. E 6, 

9 Texas Jur. p. 427, 6 18; 

E 39; Cooley's Constitutional 

Limitations (8th ed.) vol. 1, p. 123. As Judge Cooley 

says : 'A constitution is not be to made to mean one thing 

at one time, and another at some subsequent time when the 

circumstances may have so changed as perhaps to make a 

different rule in the case seem desirable. * * * It is 

with special reference to the varying moods-of public 

opinion, and with a view to putting the fundamentals of 

government bevond their control. that these instruments 

are framed. *"* "The meaning of-the constitution is fixed 

when it is adopted, and it is not different at any subsequent time when a court has occasion to pass upcn it.' 

-Cooley's Const. Lim. vol. 1, pp. 123, 124.'" (Emphasis 

supplied by the Court). 

Applying the above-quoted principles announced in the 

foregoing authorities as well as the authorities cited in Travelers' 

Ills. CO.~V. Marshall, supra, and Lanpever v. Miller, supra, we are 

f th i . that Section 5 of A ti 1 !f(bb 

509th ~e~%%~re 

as amended by the 

is unconstitutionil io: the reason that itsprovisions impair the obligations of the Texas Turnpike Authority 

created by the trust agreement entered into pursuant to the provisions of Section 11 of Article 6674~. The trust agreement 

specifically obligates the Authority to prohibit free vehicular 

traffic over the turnpike other than those excepted from its provisions, while Section 5 enacted subsequent to the creation of 

the obligation above noted specifically provides that certain 

personnel not excepted in the trust agreement shall be allowed 

free use of all toll roads. 

This opinion is not to be construed as prohibiting 

the State from making free use of the turnpike for its State 

militia when the'state militia Is called out by the Governor to 

aid in the enforcement of the laws in times of public danger. In 

such event, the members of the State militia are held to exercise 

the same authority as that which a peace officer may exercise. 57 

Corpus Juris Secundum 1098~1099, Militia Section 21, and authorities 

cited therein. Therefore, in such event, members of the State 

militia would constitute personnel specifically excepted in the 

Trust Agreement. 

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. 

Gen. Thomas S. Bishop, page 6 (C-700) 

SUMMARY 

Section 5 of Article 5766, Vernon's Civil Statutes, 

as amended by House Bill 410, Acts of the 59th Legislature, 

providing that certain personnel of the State military 

forces under certain conditions shall be allowed free use 

of toll roads in this State, violates Section 16 of Article 

I of the Constitution of Texas for the reason that it impairs 

the obligation of a contract entered into by the Texas 

Turnpike Authorit pursuant to the provisions of Section 

11 of Article 667 t v, Vernon's Civil Statutes. 

Yours very truly, 

WAGGONER CARR 

Attorney General 

By: . -8?$q $&& 

.d ohn Reeves 

<-' Assistant Attorney General 

JR:sck 

APPROVED: 

OPINION COMMITTEE 

W. V. Geppert, Chairman 

Pat Bailey 

Milton Richardson 

James Strock 

APPROVED FOR THE ATTORNEY GENERAL 

BY: T. B. Wright 

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