August 1, 1951 

Hon. Gene Maddin Opinion No. V-1226 

C 

District Attorney 

Waco, Texas Re: 

Dear Sir: 

Constitutlonalltg of 

Senate Bill 424, Acts 

52nd Legislature, 195 

creating the County 

Court at Law of McLennan County. 

1, 

Your request for an opinion relates to the .constitutional.lt of Senate Bill 424, Acts 52nd Leg., 1951, 

ch. 248, p. 3 is 6. The act in question creates a county 

court at law for McLennan County, granting such court 

jurisdiction in all matters, civil and criminal, original 

and appellate, over which the county court would have jurisdiction, except the general jurisdiction of a probate 

court, which is retained by the County Court of McLennan 

County. The county court at law is granted concurrent 

jurisdiction with 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. Provisions are made for terms of 

court, salaries, duties, and vacancies. The effective 

date as set out in the bill is September 1, 1951. 

Supplementing your original request you state 

that you are especially desirous of our opinion relating to Section 1.4 of Senate Bill 424 as well as the power 

of the Legislature to prescribe the qualifications of a 

judge of the County Court at Law of McLennan County. 

Section 1 of Article V, Constitution of Texas, 

provides: 

"The judicial power of this State shall 

be vested in one Supreme Court, in Courts of 

Civil Appeals, in a Court of Criminal Appeals, 

in District Courts, In County Courts, in Commissioners Courts, In Courts of Justices of 

the Peace, and in such other courts as may be 

provided by law. 
., 

._ 

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

” 

. . . 

*The Legislature may establish such other 

courts as It may deem necessary and prescribe 

the jurisdiction and organization thereof, and 

may conform the jurisdiction of the District 

and other inferior courts thereto." 

provides: 

Section 22 of Article V, Constitution of Texas, 

"The Legislature shall have 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'Court at 

in upholding an act 

&w No. 2 for Bexar 

County, stated: 

"The Constitution having expressly authorized the Legislature by article 5, sets. 

1 and 22, to establish other courts and to 

increase, diminish, or change the jurisdlction of county courts, the Legislature had 

the power to create a county court at law 

with jurisdiction limited within 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 court having been 

expressly authorized by the constitutional 

provisions last referred to, it is unnecessary to consider whether that act was local 
Hon. Gene Maddin, page 3 (V-1226) 

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or special in character within 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 see Allenv. State, 122 Tex. 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 question provides for 

the compensation of the County Judge of XcLennan County. 

In our opinion this section Is unconstitutional. (Tex. 

Const., Art. III, Sec. 56.) It should be noted that a 

different rule obtains with respect to county courts 

created by the Constitution and county courts at law 

created by 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 extent must 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 

..or school districts, I and from passing any 

local or special law where a general law, can 

be made applicable. It 8eema clear ,to ..us 

that the flxlnn of the ComPeneatlon to be wid 

a oounty judge by a wrtlcular counts ls.a, 

renulatlon Of the arfalrs Of the county wlthin the purview of this article of the Constltution.” (Rmphasls added.) 

On the other hand, It la the well-established 

law in this State that bills which prescribe the jurladiction and organization of those courts which the Legislature may establlsh under the provieione of Sectton 1 
Hon. Gene Maddin, page 4 (V-1226) 

of Article V are not governed by the provisions of Section 56 of Article III of the Constitution of Texas. 

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.) . 

If Section 14 of the act relating to the county judge may 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 

intent governs, 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 subject matter, dependent on each other, operating 

together for the same purpose, or otherwise so 

connected together in meaning that it cannot 

be presumed the legislature would have passed 

the one without the other. t To be capable of 

separate enforcement, the valid portion of an 

enactment must be independent of the invalid 

portion and must, form a complete act within 

itself. The law enforced after separation 

me reasonab~le in light of the act as 

origlnal1.y drafted. The test is whether or 

not the legislature would have passed the 

statute had it been presented with the invalid features removed.” (Emphasis added.) 

The act contains no 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 the main purpose of the act, yet 

,it. is capable of being separated from the 

act without materially affecting that main 

purpose .‘I 
Hon. Gene Maddin, page 5 (V-1226) 

. 

i .~ Since the unconstitutional provision in Senate 

Bill 424 is capable of being separated wlthout materially 

affecting the main purpose, it is our opinion that the remainder of Senate Bill 424 IS constitutional and valid. 

Although the Constitution prescribes 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 created pursuant to that part of Section 1 of 

Article V of the Constitution of Texas which provides 

that "The Legislature nag establish such other courts 

as it may 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 qualifications of 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 clause and did not receive the required 

two-thirds record 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, 129 Tex. 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 creates a County Court at Law for McLennan County is constitutional. 

Matthews ' 7 

9 S.W.28 335, 

error ref. ; Allen v. State, 122 Tex,. Grim. 

186, 54 S.W.2vtate7;: ~1. 

Rector v. McClelland, 14 Tex. 3 

' 

S.W.2d 706 (1.949). 

The effective date 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-thirds record 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 

Executive Assistant 

Yours very truly, 

PRICE DARIEL 

Attorney General 

Charles D. Mathews 

First Assistant 

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