Honorable R. Ii. Cory 

Chairman 

State Affairs Committee 

House of Representatives 

Austin, Texas 

Opinion NO. 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 following questions concerning H.B. No. 12: 

"1) Can the provisions of this bill be 

made retroactive to the date of the last general 

election at which a constitutional amendment on 

this subject was adopted so that payments can be 

made under the terms thereof to widows and children 

of officers killed in the line of duty since the 

date of said general election? 

"2) Would an amendment including volunteer 

firemen under the terms of this bill be constitutional? 

"3) Would an amendment including custodial 

employees of the state institutions in charge of 

the criminally insane under the terms of this bill 

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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Hon. R. xi. Gory, page 2 W-28) 

"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 firemen who 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 payment would be a violation of Section 51, 

Article III of the Constitution of the State of Texas which 

reads in part: 

"The Legislature shall have no power to 

make any grant or authorize the making of any 

grant of public moneys to any individual, association of individuals, municipal or other 

corporations whatsoever: . . . .'I 

Consequently, since the amendment provides only for 

full-paid firemen, volunteer firemen do not qualify under 

Section 51-d and any payment of assistance by 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 

1 with 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 Deputy Commissioner for Mental Health Services.,has primary 

responsibility for: 

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Hon. R. H. Gory, page 3 (M-28) 

"(1) administration of the state mental 

hospitals." 

Since the state institutions in charge of the criminally insane are the mental hospitals, and the mental 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 likewise be unconstitutional. 

You have asked if the proposed bill which provides 

for the payment of assistance by the State of Texas to the surviving spouse of minor children of law enforcement officers, 

full-time firemen, and custodial personnel of the Texas Department of Corrections, who suffer violent death in the course of 

the performance of their official duties as such, may be made 

applicable to surviving spouse and minor children of officers 

killed in the line of duty since the date of the general election 

and before the effective date of the proposed bill. 

Section 51-d provides in part: "The Legislature shall 

have the power, by general law, to provide for the payment of 

assistance. . . .I' In a similar case, State v. 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: 

"The Legislature may grant aid and compensation to any person who has heretofore paid a 

fine or served a sentence in prison, or who 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 Legislature may deem 

expedient." 

The court stated that words in a constitutional amendment must be "given their natural, obvious, and ordinary meanings as they are understood by citizens who adopted the amendment." After analyzing Section 51-c‘ the court held: 

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Hon. R. H. Gory, Page 4 W-28) 

II 

. . . From the section and article of the 

Constitution amended as well as the language used, 

no present right to aid and compensation is conferred upon the class of persons named independent 

of or without reference to the additional power 

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 objective and the 

powers conferred and rights created by 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 payment was conferred 

by it upon the individuals of the class named and whatever payments are to be made are dependent upon legislation enacted pursuant to Section 51-d. 

House Bill 12 may not be 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: 

"No bill of attainder, ex post facto law, 

retroactive law, or any law impairing the obligation of contracts, shall be made." 

The court in Turbeville v. 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 one made 

that affects acts or rights accruing before it 

came into force. A statute is retroactive 

which takes away or impairs vested rights acquired under existing laws, or creates a new 

- 119- 
Hon. R. H. Cozy, Page 5 (M-28) 

oblisation. imposes a new dutv. or adoW ~a 

new disabilitv in respect to transactions or 

considerations already passed,,, (Emphasis 

added.) 

In Slate v. City of Ft. Worth, 193 S.W. 1143 (Tex. 

Civ.App. 1917, no writ hist.), the court in considering a 

statute which provided for a recovery for wrongful death 

against a municipal corporation held: 

"The cause of action which now exists 

against a municipal corporation by virtue of 

amended article 4694 arises exclusively by 

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 should be held that amended article 4694 gives to plaintiffs the right to recover damages on account of the injuries inflicted previous to the amendment, such holding would clearly impose a new obligation upon 

defendant and attach a new liability in respect 

to a past transaction. To such extent the 

statute would be retroactive and invalid. Section 16, art. 1, Constitution of Texas. But 

it is insisted that the statute is remedial, 

and as such may be retroactive without conflicting with the constitutional provision. 

In this connection 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 is used: 

"'This statute, it is contended, is remedial, and remedial statutes may be retroactive. It is remedial, no doubt, in that 

enlarged sense of that term, where it is 

employed to designate laws made to supply 

defects in, or pare away hardships of, the 

common law, but not remedial in the sense 

-120- 
Hon. R. H. Gory, Page 6 (M-28) 

of providing a more appropriate remedy than 

the law before afforded, to enforce an existing 

right or obligation. The statute under consideration provided no new method of procedure: 

it simply imposed upon Hamilton county an obligation towards these plaintiffs in error that did 

not attach to the transaction when 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 Bill No. 12 is made retroactive to the date Section 

51-d, Article III, Texas Constitution, was passed, it will be 

unconstitutional as a retroactive law. Section 16 of Article I, 

Texas Constitution. Furthermore, since Section 51-d was not 

self-executing and no right to payment exists at the present 

time, any attempt to make House Bill 12 retroactive to the time 

Section 51-d was passed, would also be unconstitutional as a 

violation of Section 51, Article III, Texas Constitution. 

SUMMARY 

House Bill No. 12. of the 60th Legislature, 

may not include volunteer firemen or custodial 

employees of the state institutions in charge 

of the criminally insane, since individuals in 

these classes are not included in Section 51-d, 

Article III, Texas Constitution. 

House Bill No. 12 may not be made retroactive to the date Section 51-d, Article III, 

Texas Constitution, was passed. Since the amendment is not self-executing, any attempt by the 

Legislature to 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) 

Prepared by 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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