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Honorable Zollie Steakley OpinionNo. 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 "concerningtheproper construction and constitutionalityof House Bill No. 11, in view of the language 1any county having within its boundaries a citywith a population of three hundred fifty thousand (350,000) inhabitants.'"

You olnt out in your letter that under Senate Bill No. z

29 , Acts of the 55th Legislature,Regular Session, 1957, Chapter 269, page 575, effectiveAugust 22, 1957, the Administratorof the Securities Division of the Secretary of State will be succeededby the Securities Commissionerappointedby the newly created SecuritiesBoard, and thus the Securities Commissioner will be chargedwith the administrationof House Bill No. 11, which likewisebecomes effective on August 22, 1957. Hence, it becomes Important for you to know in advance whether the provisions of House Bill No. 11
are constitutionalin 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:

'AnAct defining and regulating the

business of giving ball In criminal and quasi-criminalcases;providing for the licensing of person, firms and corporationswho engage in that business in any countyhaving withinHon. Zollle Steakley, Page 2, 

## (w-232)

its boundaries a city with a population of three hundred and fifty thousand (350,000)Inhabitantsaccording to the last preceding Federal Census;providing certainpenalties; 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 administrationof thisAct by the successor to the Administratorof 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 affectedwith public interest, and, as such, is subject to be regulated and controlled.

Section

## 3authorizes any Court, Judge, Justice of the Peace or other officer or person authorizedby law to accept bail, to examine under oath any prospectivebondsmen 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 shownby the last preceding Federal Census,without having first been licensed theretoby 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 corporationshall have been convicted of any felony, or of anymisdemeanor Involvingmoral turpitude, in this orHon. Zollie Steakley, Page 

## 3, (w-232)

any other state, or In any Federal Court. ‘I

Section 

## 5empowers 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 "themaking 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 countyhaving within its boundaries
a city with a population of three hundred and fifty thousand (350,000) inhabitantsaccording to the last preceding Federal Census, shall file with the Administratorof the SecuritiesDivision a sworn application for a license therefor,

...'

The remainder of this Section deals with the contents of the application.

Section 7 authorizes the Administratorto collect license fees.

Section

## 8provides 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 licensesby 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 thereofwho shallwillfully violate or fail or neglect to obey, observe or comply with any lawful order, permit, decision, demand or requirement of theAdministrator of the SecuritiesDivision underHon. Zollie Steakley, Page 4, 

## (W’+J-232)

thisAct asherein 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 11makes it an offense for any person comingwithin the purview of the Act to solicit "theprivilege of writing or making bond for any person chargedwith 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 thisAct shall for any reason be adjudged to be unconstitutional, such adjudication shall not affect the validity of the remaining portions of said Act. The Legislaturehereby declares that it would have passed the Act and,each Section, Subsection and requirement thereof irrespectiveof the fact that any one or more Sections, Subsections
or requirementsbe declared unconstitutional."

Section

## 13provides as follows:

"Sec.

## 13.No person, firm or corporationwhose application for license to engage inmaking 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 recognizanceand bail bonds In criminal cases and that there.

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

are no adequate laws regulating

. . ^.. ..- the ouslnessor glvin$ Dali, createsan 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 countieshaving a city with exactly 350,000 inhabitants, or whether it intended theAct to be effective In all counties of the state having a city of 350,000 inhabitantsor more. According to the last Federal
census there is no city in Texas with exactly 350,000 inhabitants. We must assume the Legislatureknew such fact. It has been said, "Bywell-settledrdles of law the Legislature,when it came to act upon this matter, was chargedwith knowled e of these facts particularly." State v. Hall, 7E S.W. 2d 880, 884 (Civ.ADW. 1934, writ dism.) holding the Act authorizlna
a code of fair competition formilk-industry in counties of more than 350,000population to be unconstitutional under Section 56 of Article III of the Constitutionof Texas.

However, it is a maxim of statutory construction that a useless or ineffectiveAct will not be attributed to the Legislaturewhere any reasonable interpretation may render theAct 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 citieswhich have exactly 350,000population. If we were to construe thisAct as applying only to those counties containinga city which has exactly 350,000 population,we would be making Ineffective the wh.ole of this Act for all practicalpurposes in view of the extreme unlikelihoodof 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 theirboundaires a city of exactly 350,000,the classificationas a matter of law would be unreasonableand we would be compelled to delcare it unconstitutionalas violative of Section 56 of Article III of the Texas Constitution,or as an unreasonable exercise o,fthe police power. Obviously, the Legl~slature

couldnot have intended that the Act be construed In a manner which would render it unconstitutional.

We think the Legislature intended thisAct to apply to citieshaving a population of 350,000or 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 countyhaving within Its boundaries a city with a population of 350,000 inhabitantsor more.

Having concluded that the segment Involved includes those counties containinga 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 themeaning of Section 56 of Article III of the Texas Constitution.

Two cases concerning the regulation of trades
or professionsby classificationsaccording to popl~!- lationhave been consideredby the Texas Courts. In State v. Hall, supra, the Court considereda statute authorizing a code of fair competitionformilk industries in counties of more than 350,000population. This statutewas to be effective for two years and the 350,000populationwas to be determined by the last preceding Federal census. The Court held this statute unconstitutionalas being a local
or special law regulating a-trade within themeaning of Section 56 of Article III of the Texas Consltution. This decisionwas based on the fact (1)Harris Countywas the only county Includedwithin the classificationadopted in the ;ictand (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 citieshaving a population of 100,000 ormore, situatedon 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 Legislativepower, saying:

"Thearticles are not confined,by the~lr tellns,

to sny particuldr city or waterways. The law is Insteadgeneral. True it Is that the rights and powers grantedby the articles are to be exercised only by officers of citiesmeeting 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 operatingmunicipal docks, wharves, or warehouses. Though no other city except Houstonmeets these requirements at this time, the law Is applicable to any other city whichmay hereaftermeet them. There is no foundationwhatever for holding that the law was put in a general formmerely to evade the Constitution. There .;resuch substantialgrounds for the classification made that the articles would stand the test of the strictest rule applied in such an inquiry. The Legislaturemight reasonably conclude that the officials of a port city of 100,000population or over,malntsining Its own docks, wharves, or wareho,&es, would have so special sn interest in safeguarding andmaintslniqg the port's commercial Interests, that the state could best intrust' to them suchmatters as to appoint, suspend, and remove pilots on the waterway connecting the city and the Gulf, and tomake reasonable regulations pertaining to the pilots' services. It
seems obvious thdt the number of pilots and theneed of careful and s;rict supervision of pilotage would incl>s&ewith the size of theport and the extension of its terminalwater transportationfacilities. Classificationof pilots according to port, population snd municiplilterminal facilities, having a reasonablebasis and operating uniformly on those comingwithin the same class, violatesno provision of the Constitution.

. . .'

We think the classificationadopted by the Legislature In theAct under consideration cannotbe said to be unreasonable as a matter of law under the holding of the O'Brien case. It would appear thcitthe evils accompanying themisuse of themaking of bail bonds bears a real relation to the population of themetropolitan areas coveredby the Legislature in thisAct and that such population affords a fair basis for the classificationmade. We think itmay well be said that theproblems sought to be remedied by the Leglslature are proportionatelymore prevalent in themetropolitan areas of the state. In the absence of aHon. Zollle Steakley, Page 8, (w-232)

clearlyunreasonable classification,we conclude that theAct 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 constitutesa valid exercise of the police power of the State. There cannotbe much questionbut that the regulation of an activity affecting the administrationof justice constitutesa valid exercise of the police power of the State. If a reasonable relationmay be ascertainedbetween the classificationadopted by the Legislature and the problem or evil to be remedied, the statute is not to fallmerely because certainpersons are included or excluded in that classification. San AntonioRetail Qrocers v. Lafferty, 297 S.W. ??d613 (Tex. Sup. rfi 'lTY(J D

We have already concluded that the classification adoptedby the Legislature is reasonableand appropriate to remedying th.e evils it purports to remedy. Therefore,we x-e not able to say that the classificationdoes 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 AntonioRetail Grocers v. Lafferty, supra.

The exception in the case of licensed attorneys and surety companiesregulated by the Board of Insurance Commissionersor tne Banking Commission would not affect the constitutionalityof the Act, since itmerely exclirdesfrom its terms thosewho
are already regulated or licensed for the protection of the public. Neither does the Act affect the administrationof justice in the Courts, since it only restricts thosepersons who are in the business of professionalbondmaking. 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 summarywe conclude that theAct applies to any countywith a city having a population of 350,000 inhabitantsor more. Further,we do not think that thisAct violiites the provisions of Section 56, Article III, concerning local or special laws. Neither do we think the classificationadopted by the Legislature Is unreasonablewhen 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 countieshaving within theirboundaries a city of 350,000 or more inhabitants. This Act Is not unconstitutionalbecause of the terms of Article III, Section 56, Texas Constitution,and is not invalid as an unreasonableexercise 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