Honorable R. Ii.Cory

Chairman State Affairs Committee House of Representatives Austin, Texas OpinionNO. M-28
Re: Whether H.B. No. 12 of **the 60th**  Legislature can be made retroactive and related questions.
Dear Representative Cory:

You have requested an opinion of this office on the followingquestions concerning H.B. No. 12:

"1) Can the provisions of thisbill be made retroactive to the date of the last general election at which a constitutional amendment on this subjectwas adopted so that payments can be made under the terms thereof towidows and children of officerskilled in the line of duty since the date of said general election? "2) Would an amendment includingvolunteer firemen under the terms of thisbill be constitutional? "3) Would an amendment includingcustodial employees of the state institutions in charge of the criminally insane under the terms of thisbill be constitutional?"
House Bill No. 12 of the 60th Legislature, Regular Session, is a direct response to the recent addition to the Texas Constitution of Section 51-d,Article III,Constitution of the State of Texas, which was adopted at the last general election. This amendment reads as follows:

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"The Legislature shall have the power,by general law, to provide for the payment of assistance by the State of Texas to the surviving spouse and minor children of law enforcement officers, custodial personnel of the Texas Department of Corrections or of full-paid firemenwho suffer violent death in the course of the performance of their duties as law enforcement officers, custodial personnel of the Texas Department of Corrections or as full-paid firemen."
In the absence of the above constitutional amendment, any such paymentwould be a violation of Section 51, Article III of the Constitution of the State of Texas which reads in part:

"TheLegislature shall have no power to make any grant or authorize the making of any grant of publicmoneys to any individual,association of individuals,municipal or other corporationswhatsoever:
. . . .'I Consequently, since the amendment provides only for full-paid firemen,volunteer firemen do not qualify under Section 51-d and any payment of assistanceby the state to surviving spouse and minor children would be unconstitutional.

Similarly,Article 46.02, Vernon's Code of Criminal Procedure, provides for the commitment of any person charged 1with a criminal offense and found insane at the time of trial to a state mental hospital.

**Article** 5547-202,Vernon's Civil Statutes, creates the Texas Department of Mental Health and Mental Retardation. Section 2.09 of that act sets out the powers and duties of deputy commissioners. Among these are:

"b) Subject to the direction and supervision of the Commissioner, the DeputyCommissioner for Mental Health Services.,has primary responsibility for:

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"(1) administration of the statemental hospitals." Since the state institutions in charge of the criminally insane are themental hospitals, and themental hospitals are under the control and supervision of the Texas Department of Mental Health and Mental Retardation rather than the Texas Department of Corrections, any payment to surviving spouse and minor children of custodial employees of these institutions would likewisebe unconstitutional.

You have asked if the proposedbill which provides for the payment of assistanceby the State of Texas to the surviving spouse ofminor children of law enforcementofficers, full-time firemen,and custodial personnelof the Texas Department of Corrections,who suffer violentdeath in the course of the performance of their official dutiesas such,may be made applicable to surviving spouse andminor children of officers killed in the line of duty since thedate of the general election and before the effective date of the proposedbill.

Section 51-d provides in part: "TheLegislature shall have the power,by general law, to provide for the payment of assistance.

. . .I' In a similar case, Statev. Clements, 319 S.W.2d 450 (Tex.Civ.App.1958, error ref.), the court construed Section 51-c,Article III, Constitution of Texas. That section reads: "TheLegislaturemay grant aid and compensation to any personwho has heretoforepaid a fine or served a sentence in prison,orwho may hereafter pay a fine or serve a sentence in prison, under the laws of this State for an offense for which he or she is not guilty, under such regulations and limitations as the Legislaturemay deem expedient." The court stated that words in a constitutional amendment must be "giventheir natural, obvious,and ordinary meanings as they are understood by citizenswho adopted the amendment." After analyzing Section 51-c‘ the courtheld:

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II

. . . From the section and article of the Constitution amended as well as the languageused, no present right to aid and compensation is conferred upon the class of personsnamed independent of or without reference to the additionalpower at the same time vested in the Legislature. The right to receive aid and compensation is contingent upon action by the Legislature.

. . . "The recitation of the objectiveand the powers conferred and rights createdby the amendment make it obvious that the amendment is not self-executing.

. . .I' Consequently, it is the opinion of this office that Section 51-d,Article III, Texas Constitution, is not selfexecuting. Therefore, no right to receive paymentwas conferred by it upon the individuals of the class named and whatever payments are to **be** made are dependentupon legislation enacted pursuant to Section 51-d.

House Bill 12 may notbe made retroactive to include persons in the class named between the passage of Section 51-d‘ Article III, Texas Constitution, and the effective date of House Bill 12. Section 16,Article III, Texas Constitution, provides:

"Nobill of attainder, ex post facto law, retroactive law, or any law impairing the obligation of contracts, shallbe made."
The court in Turbevillev. Gowdy, 272 S.W. 559 (Tex. Civ.App. 1925, no writ hist.) defined a retroactive law as follows:
"A retroactive law, in the sense of the constitution, and in so far as is **here** applicable,which prohibits such acts, is onemade that affects acts or rights accruingbefore it came into force. A statute is retroactive which takes away or impairsvested rights acquired under existing laws, or creates a new

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oblisation.imposes a new dutv. or adoW ~a new disabilitv in respect to transactions**or** considerationsalready passed,,, (Emphasis added.)
In Slatev. City of Ft.Worth, 193 S.W. 1143 (Tex. Civ.App. 1917,no writ hist.), the court in consideringa statute which provided for a recovery forwrongfuldeath against a municipalcorporationheld:

"Thecause of action which now exists against amunicipal corporationby virtue of amended article 4694 arises exclusivelyby virtue of this statute. **A** right of action to **recover** damages on account of injuries causing death did not exist under the common law.
"If it shouldbe held that amended article 4694 gives to plaintiffs the right to recover damages on account of the injuries inflictedprevious to the amendment, suchholding would clearly impose a new obligationupon defendantand attach a new liability inrespect to a past transaction. To such extent the statutewould be retroactive and invalid. Section 16,art. 1, Constitution of Texas. But it is insistedthat **the** statute is remedial, and as suchmay be retroactivewithout conflictingwith the constitutional provision. In thisconnection our views are most aptly expressed in Hamilton County v. Rosche, 50 Ohio St. 103, 33 N.E. 408, 19 L.R.A. 584,40 Am. St. Rep. 653,where this language isused: "'Thisstatute, it is contended, is remedial, and remedial statutesmay be retroactive. It is remedial, no doubt, in that enlarged sense of that term,where it is employed to designate lawsmade to supply defects in, or pare awayhardships of, the common law,but not remedial in the sense -120-Hon. R. **H.** Gory, Page 6 (M-28)

of providinga more appropriate remedy than the lawbefore afforded, to enforce an existing right or obligation. The statute under consideration providedno new method of procedure: it simply imposed upon Hamilton county an obligation towardsthese plaintiffs in error that did not attach to the transactionwhen it occurred. In attempting to accomplish **this** result the Legislature transcended its constitutional powers.'" Consequently, it is the opinion of this office that if House BillNo. 12 is made retroactive to the date Section 51-d,Article III, Texas Constitution,was passed, it will be unconstitutionalas a retroactive law. Section 16 ofArticle I, Texas Constitution. Furthermore, since Section 51-dwas not self-executingand no right to payment exists at the present time, any attempt to make House Bill 12 retroactive to the time Section 51-dwas passed,would alsobe unconstitutional as a violation of Section 51, Article III, Texas Constitution.
SUMMARY
House Bill No. 12. of the 60th Legislature, may not includevolunteer firemen or custodial employees of the state institutions in charge of the criminally insane, since individuals in these classesare not included in Section 51-d, Article III,Texas Constitution.
House Bill No. 12 may notbe made retroactive to the date Section 51-d,Article III, Texas Constitution,was passed. Since the amendment is not self-executing, any attemptby the Legislatureto make House Bill No. 12 retroactive would be unconstitutional as a violation of Section 16,Article I, and Section 51,Article III, Texas Constitution. truly**yours,**Hon. R. H. Cory. page 7 (M-28)

Preparedby Wade Anderson Assistant Attorney General WA:sck:ra
APPROVED: OPINION COMMITTEE Hawthorne Phillips, Chairman W. V. Geppert, Co-Chairman Malcolm Quick Dyer Moore John Reeves Alan Minter
STAFF LEGAL ASSISTANT A. J. Carubbi, Jr.

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