. . 

Honorable Zollie Steakley Opinion No. ww-232 

Secretary of State 

Capitol Station Re: Proper construction 

Austin, Texas and constitutionality 

of H. B. 11, Acts of 

55th Legislature, 

Regular Session, 1957, 

Chapter 420, page 

1259, which defines 

and regulates the 

business of giving 

Dear Nr. Steakley: bail. 

In your letter of July 29, 1957, you request an 

opinion of this office "concerning the proper construction and constitutionality of House Bill No. 11, in 

view of the language 1 any county having within its 

boundaries a city with a population of three hundred 

fifty thousand (350,000) inhabitants.'" 

You olnt out in your letter that under Senate 

Bill No. 29 z , Acts of the 55th Legislature, Regular 

Session, 1957, Chapter 269, page 575, effective August 

22, 1957, the Administrator of the Securities Division 

of the Secretary of State will be succeeded by the 

Securities Commissioner appointed by the newly created 

Securities Board, and thus the Securities Commissioner 

will be charged with the administration of House Bill 

No. 11, which likewise becomes effective on August 22, 

1957. Hence, it becomes Important for you to know in 

advance whether the provisions of House Bill No. 11 

are constitutional in order to effectuate a transition 

and in order to prepare forms and otherwise implement 

the law, if it Is valid. 

The caption of House Bill No. 11 recites that 

it Is: 

'An Act defining and regulating the 

business of giving ball In criminal 

and quasi-criminal cases; providing 

for the licensing of person, firms 

and corporations who engage in that 

business in any county having within 
Hon. Zollle Steakley, Page 2, (w-232) 

its boundaries a city with a population of three hundred and fifty 

thousand (350,000) Inhabitants according to the last preceding Federal 

Census; providing certain penalties; 

providing certain exemptions from 

this Act; providing for appeal from 

the decision of the Administrator 

of the Securities Division of the 

Office of the Secretary of State; 

providing for administration of 

this Act by the successor to the 

Administrator of the Securities 

Division of the Office of the Secretary of State; providing for lice?sing 

fees; and declaring an emergency. 

Section 1 of the Bill defines the business of 

giving bail and exempts lawyers and certain surety 

companies from the provisions of the Act. 

Section 2 declares that the business of giving 

ball is a business affected with public interest, 

and, as such, is subject to be regulated and controlled. 

Section 3 authorizes any Court, Judge, Justice 

of the Peace or other officer or person authorized by 

law to accept bail, to examine under oath any prospective bondsmen and to refuse to accept bond under 

certain circumstances. 

Section 4 reads as follows: 

"Sec. 4. No person, firm or corporation shall engage In the business of 

making ball within any county containing a city of three hundred and 

fifty thousand (350,000) inhabitants, 

as shown by the last preceding Federal 

Census, without having first been 

licensed thereto by the Administrator 

of the Securities Division of the 

Office of the Secretary of State; nor 

shall any person, firm, or corporation 

be permitted to engage in such business 

if such person or any member of such 

firm, or officer or director of such 

corporation shall have been convicted 

of any felony, or of any misdemeanor 

Involving moral turpitude, in this or 
Hon. Zollie Steakley, Page 3, (w-232) 

any other state, or In any Federal 

Court. ‘I 

Section 5 empowers the Administrator of the Securities Dlvlsion of the Office of Secretary of State to 

administer oath and examine witnesses, and to lnveetigate anyone engaged In the business of "the making of 

bail In this state." 

Section 6 reads in part as follows: 

"Sec. 6. Any applicant desiring to 

engage in the business of glvlng 

bail as defined in this Act, In any 

county having within its boundaries 

a city with a population of three 

hundred and fifty thousand (350,000) 

inhabitants according to the last 

preceding Federal Census, shall 

file with the Administrator of the 

Securities Division a sworn application for a license therefor, . ..' 

The remainder of this Section deals with the contents 

of the application. 

Section 7 authorizes the Administrator to 

collect license fees. 

Section 8 provides for the renewal of licenses. 

Section 8a provides for the succession of the duties 

of the Administrator to his successor in office or 

any other person who may hereafter assume his duties. 

Section 9 authorizes the revocation or suspension of licenses by the Administrator for certain 

causes, and sets up the proced'ure for such suspension 

and revocation. 

Section 10 requires a bond of all licensees. 

Section 11 provides in part as follows: 

"Sec. 11. Any person, firm or corporation or agent or employee thereof who 

shall willfully violate or fail or 

neglect to obey, observe or comply 

with any lawful order, permit, decision, 

demand or requirement of the Administrator of the Securities Division under 
Hon. Zollie Steakley, Page 4, (W’+J-232) 

this Act as herein provided shall be 

guilty of a misdemeanor and upon conviction therefor shall be sentenced 

to pay a fine of not more than Five 

Hundred Dollars ($500), or imprisonment 

in the county jail for not more than 

one (1) year, or both such fine and 

imprisonment." 

Subdivision (a) under Section 11 makes it an offense 

for any person coming within the purview of the Act 

to solicit "the privilege of writing or making bond 

for any person charged with any criminal or quasicriminal offense". Subdivision (b) makes It an 

offense to recommend or suggest the name of an 

attorney to such person. 

Section 12 provides as follows: 

"Sec. 12. If any Section, Subsection 

or requirement of this Act shall for 

any reason be adjudged to be unconstitutional, such adjudication shall 

not affect the validity of the remaining portions of said Act. The Legislature hereby declares that it would 

have passed the Act and,each Section, 

Subsection and requirement thereof 

irrespective of the fact that any 

one or more Sections, Subsections 

or requirements be declared 

unconstitutional." 

Section 13 provides as follows: 

"Sec. 13. No person, firm or corporation whose application for license 

to engage in making bail shall have 

been refused shall be eligible to 

make or renew such application for 

license for a period of one (1) year 

from the date of his or its prior 

rejection." 

Section 14 reads in part as follows: 

"Sec. 14. The fact that there is an 

unprecedented Increase In the number 

of forfeited recognizance and bail 

bonds In criminal cases and that there 
. 

Hon. Zollie Steakley, Page 5, (w-232) 

are no adequate laws regulating . . ^.. ..- the 

ouslness or glvin $ Dali, creates an 

emergency. . . . 

The language appearing in Sections 4 and 6 gives 

rise to the question, whether the Legislature InFended 

for those Sections of the Act to be effective only 

in counties having a city with exactly 350,000 inhabitants, or whether it intended the Act to be effective 

In all counties of the state having a city of 350,000 

inhabitants or more. According to the last Federal 

census there is no city in Texas with exactly 350,000 

inhabitants. We must assume the Legislature knew such 

fact. It has been said, "By well-settled rdles of 

law the Legislature, when it came to act upon this 

matter, was charged with knowled e of these facts 

particularly." State v. Hall, 7 E S.W. 2d 880, 884 

(Civ. ADW. 1934, writ dism.) holding the Act authorizlna 

a code of fair competition for milk-industry in counties 

of more than 350,000 population to be unconstitutional 

under Section 56 of Article III of the Constitution of 

Texas. 

However, it is a maxim of statutory construction 

that a useless or ineffective Act will not be attributed 

to the Legislature where any reasonable interpretation 

may render the Act effective. The Legislature in this 

case is presumed to know that there ia no city in the 

State of Texas presently falling within the group of 

cities which have exactly 350,000 population. If we 

were to construe this Act as applying only to those 

counties containing a city which has exactly 350,000 

population, we would be making Ineffective the wh.ole 

of this Act for all practical purposes in view of 

the extreme unlikelihood of any city in Texas ever 

having a populatlon of exactly 350,000 according to 

any Federal census. If we were to hold that the 

Legislature Intended the Act to apply only to counties 

having within their boundaires a city of exactly 

350,000,the classification as a matter of law would 

be unreasonable and we would be compelled to delcare 

it unconstitutional as violative of Section 56 of 

Article III of the Texas Constitution, or as an unreasonable exercise o,f the police power. Obviously, 

the Legl~slature could not have intended that the Act 

be construed In a manner which would render it 

unconstitutional. 

We think the Legislature intended this Act to 

apply to cities having a population of 350,000 -- or over 
Hon. Zollle Steakley, Page 6, (w-232) 

and we so Interpret the provision set out In the first 

paragraph of this opinion. We think that, viewing 

the Act as a whole, It is not a stralned or unusual 

Interpretation to hold as we do that the Act applies 

to any county having within Its boundaries a city 

with a population of 350,000 inhabitants or more. 

Having concluded that the segment Involved 

includes those counties containing a city having a 

population of 350,000 or over, the question arises 

as to whether or not tFiI$m is a local or special 

bill within the meaning of Section 56 of Article III 

of the Texas Constitution. 

Two cases concerning the regulation of trades 

or professions by classifications according to popl~!- 

lation have been considered by the Texas Courts. In 

State v. Hall, supra, the Court considered a statute 

authorizing a code of fair competition for milk 

industries in counties of more than 350,000 population. This statute was to be effective for two 

years and the 350,000 population was to be determined 

by the last preceding Federal census. The Court 

held this statute unconstitutional as being a local 

or special law regulating a-trade within the meaning 

of Section 56 of Article III of the Texas Consltution. 

This decision was based on the fact (1) Harris 

County was the only county Included within the 

classification adopted in the ;ict and (2) because 

of the operation of the federal laws relating to 

the decennial census, this county was the only one 

which could ever enJoy or endure the provisions 

of this law. 

The other case on the question is O'Brien 

Amerman, 247 S.W. 270 (Tex. Sup. Ct. 19227xcerning the statute enacted by the Legislature allowing 

cities having a population of 100,000 or more, 

situated on a navigable stream, owning and operating 

municipal docks, wharves, or warehouses, to license, 

appoint, and remove pilots on the waterway connecting 

the city and the Gulf. The Court upheld this statute 

as a valid exercise of the Legislative power, saying: 

"The articles are not confined, by 

the~lr tellns, to sny particuldr city or 

waterways. The law is Instead general. 

True it Is that the rights and powers 

granted by the articles are to be exercised 

only by officers of cities meeting these 
. 

Hon. Zollie Steakley, Page 7, (WW-232) 

, 

tests: First, having a population of 100,000 

or more; second, being situated along or 

upon a navigable stream in the state; and 

third, owning or operating municipal docks, 

wharves, or warehouses. Though no other 

city except Houston meets these requirements 

at this time, the law Is applicable to any 

other city which may hereafter meet them. 

There is no foundation whatever for holding 

that the law was put in a general form merely 

to evade the Constitution. There .;re such 

substantial grounds for the classification 

made that the articles would stand the test 

of the strictest rule applied in such an 

inquiry. The Legislature might reasonably 

conclude that the officials of a port city 

of 100,000 population or over, malntsining 

Its own docks, wharves, or wareho,&es, 

would have so special sn interest in safeguarding and maintslniqg the port's commercial Interests, that the state could 

best intrust' to them such matters as to 

appoint, suspend, and remove pilots on 

the waterway connecting the city and the 

Gulf, and to make reasonable regulations 

pertaining to the pilots' services. It 

seems obvious thdt the number of pilots 

and the need of careful and s;rict supervision of pilotage would incl>s&e with the 

size of the port and the extension of its 

terminal water transportation facilities. 

Classification of pilots according to port, 

population snd municiplil terminal facilities, 

having a reasonable basis and operating 

uniformly on those coming within the same 

class, violates no provision of the Constitution. . . .' 

We think the classification adopted by the Legislature In the Act under consideration cannot be said 

to be unreasonable as a matter of law under the holding 

of the O'Brien case. It would appear thcit the evils 

accompanying the misuse of the making of bail bonds 

bears a real relation to the population of the metropolitan areas covered by the Legislature in this Act 

and that such population affords a fair basis for the 

classification made. We think it may well be said 

that the problems sought to be remedied by the Leglslature are proportionately more prevalent in the metropolitan areas of the state. In the absence of a 
Hon. Zollle Steakley, Page 8, (w-232) 

clearly unreasonable classification, we conclude that 

the Act Is a general law and does not come under the 

prohlbltlons of Section 56 of Article III of the 

Texas Constitution. O'Brien v. Amerman, supra. 

The remaining question Is whether the Act 

constitutes a valid exercise of the police power 

of the State. There cannot be much question but 

that the regulation of an activity affecting the 

administration of justice constitutes a valid 

exercise of the police power of the State. If a 

reasonable relation may be ascertained between 

the classification adopted by the Legislature and 

the problem or evil to be remedied, the statute is 

not to fall merely because certain persons are 

included or excluded in that classification. 

San Antonio Retail Qrocers v. Lafferty, 297 S.W. 

??d 613 (Tex. Sup. rfi 'lTY(J D 

We have already concluded that the classification adopted by the Legislature is reasonable and 

appropriate to remedying th.e evils it purports to 

remedy. Therefore, we x-e not able to say that 

the classification does not bear a reasonable 

relationship to the evils to be remedied. Unless 

we are able to so concl.ude, we may not declare the 

Act unconstitutional. See San Antonio Retail 

Grocers v. Lafferty, supra. 

The exception in the case of licensed attorneys and surety companies regulated by the Board of 

Insurance Commissioners or tne Banking Commission 

would not affect the constitutionality of the Act, 

since it merely exclirdes from its terms those who 

are already regulated or licensed for the protection 

of the public. Neither does the Act affect the 

administration of justice in the Courts, since it 

only restricts those persons who are in the business 

of professional bondmaking. It does not affect the 

right of a person to bond nor to the right of the 

courts to release a person on bond. 

In summary we conclude that the Act applies 

to any county with a city having a population of 

350,000 inhabitants or more. Further, we do not 

think that this Act violiites the provisions of 

Section 56, Article III, concerning local or special 

laws. Neither do we think the classification adopted 

by the Legislature Is unreasonable when considered 

In the light of the evils it seeks to remedy. 
Hon. Zollle Steakley, Page 9, (WW-232) 

SUMMARY 

House Bill 11, Acts 55th Legislature, 

Regular Session, 1957, chapter 420, 

p. 1259 applies to counties having 

within their boundaries a city of 

350,000 or more inhabitants. This 

Act Is not unconstitutional because 

of the terms of Article III, Section 

56, Texas Constitution, and is not 

invalid as an unreasonable exercise 

of the police power of the State. 

Very truly yours, 

WILL WILSON 

JHM:wam:jas 

APPROVED: 

OPINION COMMITTEE 

H. Grady Chandler, Chm. 

B. H. Timins, Jr. 

Mary K. Wall 

Roger I. Dally 

W. R. Hemphill 

REVIEWED FOR THE ATTORNEY GENERAL 

BY: Geo. P. Blackburn