August 1, 1951

Hon. Gene Maddin OpinionNo. V-1226

C District Attorney

Waco, Texas Re:

Dear Sir: Constitutlonalltgof Senate Bill 424,Acts 52nd Legislature, 195 creating the County Court at Law of McLennan County. 

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Your request for an opinionrelates to the .constitutional.lt of Senate Bill 424,Acts 52ndLeg., 1951, ch. 248, p. 3 6.

is The act in question createsa county court at law for McLennan County, granting such court jurisdiction in all matters, civil and criminal, original and appellate, overwhich the county courtwould have jurisdiction, except the general jurisdictionof a probate court,which is retained by the County Court of McLennan County. The county court at law is granted concurrent jurisdictionwith the County Court of McLennan County in the trial of insanity cases,restoration cases,approval. of applications for admission to State Hospitals and Special Schools, application for beer license,and the power to punish for contempt. Provisionsare made for terms of court, salaries,duties, and vacancies. The effective date as set out in the bill is September 1, 1951.

Supplementingyour originalrequestyou state that you are especiallydesirous of our opinion relating to Section 1.4of Senate Bill 424 as well as the power of the Legislature to prescribe the qualificationsof a judge of the County Court at Law ofMcLennan County.

Section 1 ofArticle V, Constitution of Texas, provides:
"The judicialpower of this State shall be vested in one Supreme Court, in Courts of CivilAppeals, in a Court of CriminalAppeals, in District Courts, In County Courts, in Commissioners Courts, In Courts of Justices of the Peace, and in such other courts as may be providedby law..,._

Ron. Gene Maddin, page 2 (V-1226)

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. . . *The Legislaturemay establish such other courtsas Itmay deem necessary and prescribe the jurisdictionand organizationthereof, and may conform the jurisdiction of the District and other inferior courts thereto."
provides: Section 22 ofArticle V, Constitution ofTexas,

"The Legislature shallhave power, by local or general law, to increase,diminish or change the civil and criminal jurisdiction of County Courts; and in cases of any such change of jurisdiction,the Legislature shall also conform the juris$ction of the other courts to such change.

In Garvey v. Matthews, 79 S.W.2d 335 (Tex.Clv. App. 1935, error ref.) the court which created a County'Courtat in upholdingan act &w No. 2 for Bexar County, stated:

"The Constitutionhaving expressly authorized the Legislatureby article 5, sets. 1 and 22, to establish other courts and to increase,diminish, or change the jurisdlction of county courts, the Legislaturehad the power to create a county court at law with jurisdiction limitedwithin the scope of the jurisdiction of the county court as defined by the Constitution. This particular county court at law was, therefore, created under the sanction of the Constitution. State v. Valentine (Tex.Civ.Ap .)198 S.W. 1006; City of Dallas v. Johnson P Tex. Civ.App.) 54 S.W.(2d) 1024;Texas & N.O.R. Co. v. City of Beaumont (Tex.Clv.App.)~ 285 S.W. 944;Acree v. State (Tex.Civ.App.)47 S.W.(2d) 907; Lytle v. Ralff, 75 Tex. 128, 12~s W. 610; Rarris County v. Stewart, 91 Tex. 133, 41 S.W. 650. 'The act creating the courthaving been expressly authorizedby the constitutional provisions last referred to, it is unnecessary to considerwhether that act was localHon. Gene Maddin, page 3 (V-1226)

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.- or special in characterwithin the contemplation of article 3, sets. 56 and 57, of the Constitution. Harris County v. Crooker, 112 Tex. 450, 248 S.W. 652. I *

. . . Also seeAllenv. State, 122Tex. Grim. 186, 54 S.W.2d 810 (19321,and State ex rel; Rector v.McClelland, 148 Tex. 372, 224 S.w.2d 706, pg>ir’

Section 14 of the act in questionprovides for the compensation of the County Judge ofXcLennan County. In our opinion this section Is unconstitutional. (Tex. Const.,Art. III, Sec. 56.) It shouldbe noted that a different rule obtainswith respect to county courts createdby the Constitutionand county courtsat law createdby statute.

In Ward v. Harris Count , (Tex.Clv.App.1919, error ref.), &e 209 S.W. 792, 794 court stated:
“Both of these laws are special acts of the Legislature,and in so far as they attempt to increase the salary of the county judge of Harris county over that fixed by the general law 

### for county judges in ths other counties of the state in the S&me class as Harrie county,as classified **by** the gene+ al law, is, we think, clearly obnoxious to article 3, section 56, of the Conatltutlon of this state, and to that extentmust be held invalid. The article of the Codstltutlon above cited prohibits the Legislature from passing any local or special law ‘regulating the affairs of counties, cities, towns,wards
..orschool districts, Iand from passing any local or special lawwhere a general law,can be made applicable. It 8eema clear ,to..us that the flxlnn of the ComPeneatlonto be wid a oounty judgeby a wrtlcular counts ls.a, renulatlon Of the arfalrs Of the countywlthin the purview of this article of the Constltution.” (Rmphaslsadded.)
On the otherhand, It la the well-established law in this State that bills which prescribe the jurladiction and organization of those courtswhich the Legislaturemay establlshunder the provieione of Sectton 1Hon. Gene Maddin, page 4 (V-1226)

of Article V are not governed by the provisions of Section 56 ofArticle III of the Constitution ofTexas. Garveg V. Matthews, supra; Harris County v. Crooker, 224 S.W. 792 (Tex.Civ.Ao~.‘r920). affirmed 112 Tex. 450. 248 s.W. 652 (1923);Jones v; Anderson, 189 S.W.26 65- ’ (Tex.Civ.App.1945, error ref.)

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If Section 14 of the act relating to the county judgemay be severed from the remaining portion, it is our opinion that’ the act is valid and constitutional.

In 2 Sutherland, Statutory Construction (3rd Ed. 143) 178-179,Sec. 2404, it is said:

“In determining se,parabllity, legislative intentgoverns, but intent that the act be enforced in so far as valid is not the sole consideration. If the legislature so intended, the valid parts of an act will be upheld ‘unless all the provisions are connected in subjectmatter, dependent on each other, operating together for the same purpose, or otherwise so connected together in meaning that it cannot be presumed the legislaturewould have passed the onewithout the other.t To be capable of separate enforcement, the valid portion of an enactmentmust be independent of the invalid portion and must,form a completeact within itself. The law enforced after separation me reasonab~le in light of the act as origlnal1.y

drafted. The test iswhether or not the legislaturewould have passed the statutehad itbeen presentedwith the invalid features removed.” (Emphasisadded.)
The act containsno severability or saving

in Christopher V. City of El Paso, 98 ~??%‘39?%?{Tex.Civ.App. 1936, court said: error dism.), the

“We do not concur in the contention that the invalidity of the exemption provision, Fn the absence of a saving clause, renders the entire act unconstitutional. While it is true that the provision Is incidental to themain purpose of the act, yet ,it. is capable of being separated from the act without materially affecting that main purpose.‘IHon. Gene Maddin, page 5 (V-1226)

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i .~ Since the unconstitutionalprovision in Senate Bill 424 is capable of being separatedwlthoutmaterially affecting themain purpose, it is our opinion that the remainder of Senate Bill 424 IS constitutionaland valid.

Although the Constitutionprescribes the qualifications of the county judge of the regular county court (Art.V, Sec. 15), the county court at law is not the same type as the regular county court. The county court at law is createdpursuant to that part of Section 1 of Article V of the Constitution of Texas which provides that "The Legislaturenag establish such other courts as itmay deem necessary and there are no qualifications provided for in the Constitution for the judges of county courts at law.

Therefore it is our opinion that the power'of the Legislature to prescribe the qualificationsof the judge of the county court at law Is incidental to the power to create the same.

Inasmuch as Senate Bill 424 does not contain an emergency clauseand did not receive the required two-thirdsrecord vote, It does not become effective until September 7, 1951,ninety days after adjournment of the Legislature on June 8, 1951. Tex. Const., Art. III, Sec. 39; Caples v. Cole, 129Tex. 370, 102 S.W.28 173 !;;3;7';

$10: ",ssyany Society v. Equitable Trust "02; (1949).* 93 8 .W d 58 (19331;Att'YOe n. p. 9

SUMMARY Although Section 14 of Senate Bill 424, Acts 52nd leg., 1951, ch. 248,p. 386, relating to the salary of the county judge Is unconstitutional,the remainder of the act which createsa County Court at Law for McLennan County is constitutional.
Matthews' 79 S.W.28 335, error ref. ;Allen v. State, 122Tex,.Grim. 186, 54 S.W.2vtate7;: ~1. Rector v. McClelland, 14 Tex. 3 ' S.W.2d 706 (1.949).
The effectivedate of Senate Bill 424 is September 7, 1951, ninety days after adjournment of the Legislature on June 8, 1951,Hon. Gene Maddin, page 6 (V-1226)

since it failed to receive the required two-thirdsrecord vote and does not contain an emergency clause. Tex. Const., Art. III, Sec. 39; Caples v. Cole, 129 Tex. 370, 102 S.W 26 173 (1937);union Assurance Society v. Equitable Trmo., 122 Tex. 293, 58 S.W.28 58 (1933);Att'y Gen. Op. V-927 (1949).
APPROVED:
J. C. Davis, Jr. County Affairs Division
Everett Hutchinson ExecutiveAssistant Yours very truly,
PRICE DARIEL Attorney General

Charles D. Mathews First Assistant
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