THE ATTORNEY GENERAL



# ow TICKAS

February 22, 1964

Honorable Joe Resweber County Attorney Opinion No. c-220

Harris County Houstop, Texas

Dear Mr. Resweber: Re: Constitutionalityof Articles 3930 and 3930a,V.C.S.

Your request for an opinion reads as follows:

"Mr. S. B. Bruce, Auditor of Harris County,has requested that thls office obtain an opinion from you as to whether Articles 3930 (a) and 3930V.T.C.S. are in accord with the Constitutionof the State of Texas. This office has prevlously rendered an opinion upon these questlons to R. E. Turrentine,Jr., in response to his request for same.

"Youropinion is respectfully requested as to these questions, and the answers to them contained in the opinion of our office, as Indicated, a copy of which Is attached hereto."

The questionsof Mr. R. E. Turrentine,Jr., are as follows:

"(1) Was the Article 3930Bection 4

of House Bill 642, Acts of the 49th Leglslature, Regular Session, 1945, Chapter 368, page 662, at page 6637which immediately preceded the present Article 3930 R.C.S. of Texas, 1925,&ection 1 of Senate Bill 237, Acts of the 55th Legislature,Re ular Session, 1957, Chapter 228, page 471 constitu7 tional?

"(2) Is the present Article 3930 R.C.S. of Texas, 1925,Bection 1 of Senate Bill 237, Acts of the 55th Legislature,Regular Session, tutional?

1957, Chapter 228, page 4727consti-

-1057-Hon. Joe Resweber,page 2 (C-220)

“(3) Is the present Article 3930 (a) R.C.S. of Texas, 1925fiection 1 of House Bill 706, Acts of the 57th Legislature, Regular Session, 1961, Chapter 495, page lOgp7 constitutional? Drackets our$

"(4) If, in your opinion, the three statutes referred to above shouldbe unconstitutionalor, if any two of the three shouldbe unconstitutional,would there be any greater violation in law in using one of the statutes as against using another of the statutes? “(5) If, In your opinion, two or more ,ofthe above statutes should be determined to be unconstitutional,would it not be imperative that suit be filed before the Supreme Court to get a definite determination of the constitutionalityof the three statutes cited?"

Article 3930, Revised Civil Statutes of Texas, 1925,
as amendedby Section 4 of House Bill 642, Acts of the 49th ,Iegislature,

Regular Session, 1345, Chapter 368, page 662, prescribes the fees that the clerks of the county court shall receive. Section 20 of ArticleV of the Constltutlonof Texas specificallyauthorizes the Legislature to prescribe the fees of office for the county clerks. You are therefore advised in answer,to your first question that Article 39 0, Revised Civil Statutes of Texas, 1925, as amended by the 19 5 Act referred to 2 above,was constitutional.

Article 3930, Revised Civil Statutes of Texas, 1925, as amended by Section 1 of Senate Bill 237, Acts of the 55th Legislature, Regular Session, 1957, Chapter 228, page 477, prescribes the fees of office of the county clerk. In answer to your second question,you are advised that since the Legislature is specifically.authorizedto prescribe the fees of county clerks, Article 3930, Revlsed,CivilStatutes of Texas, 1925, as amended, Is constitutional.

Article 3930a,Vernon's Civil Statutes, is an Act applicable to county clerks and clerks of the county courts in countieshaving a population of 1,200,OOO inhabitantsor more according to the last preceding Federal Census. It prescribes the fees county clerks are to receive in such counties, subject to the adoption of the Act by the commissionerscourt of a county otherwise qualified.

-1058-Hon. Joe Resweber, Page 3 (c-220)

Section 

### 56 of Article III of the Constitutionof Texas prohibits the enactment of,local or special laws regulating affairs of counties. However, courts of this State, in construing the provisions of Section 

### 56 of Article III have held that,a statute is not local or specialwithin the meaning of the Constitutioneven though Its enforcementbe restricted to
a part,icular

locality If persons or things throughout the State
are affected thereby or if it operates upon a subject in which the people,at lar e are interested. Clark v. Finley, 93 Tex. 171, 

### 54 S W. 

### 343$1899);Reed v. Rogan, 94 Tex. 1 255 (19OO)iStephensonv. Wood, 119 Tex. 

### 564, 34 ~7~.'~ds$% (1931); 'McGeeIrrigatingDitch Companyv. Hutton, 

### 85 Tek. 

### 587, 22 S.W. 967 (1893);Handy v. Johnson, 

### 51 Fed.2d 

### 809, (E.D. Tex. 1931); Lower Colorado River Authorityv. McGraw, 125 Tex. 

### 268,83 S.W.2d 629 1,193s); Lower NechesValley Authorityv. Mann, 140 Tex. 294, 

### 167 S.W.2d 1011 (1943);Lamon v. Ferguson, 213 S.W.2d 

### 86 (Tex.Civ.App.,

### 1348).

The primary and ultimate test of whether a law,is'general or special is whether there is a reasonablebasis for the classificationmade by the law or whether the law operates equally on all within the class. Rodriguezv. Gonzales, 

### 148Tex. 

### 537, 227 S.W.2d 791 Bexar Countyv. Tynan, 128 Tex. 223, $5'S.W.2d 

### 467 (1936 150 S.W.2d 1000 

### 1(1950); 

### ;Millerv. El Paso County, 

### 136Tex. 

### 370, (19 1).

The emergency clause of House Bill 

### 706,Acts of the 57th Legislature,Regular Session, 

### 1961,Chapter 495, page 1099, at page 1101, codified in Vernon's as Article 393Oa,Vernon's Civil Statutes, states that the fact that the Officers' Salary Fund in the counties of Texas affectedby the provisions of this Act are inadequateand Insufficientto take care of the expenses of the officers affected, therebyplacing an extraburden on the already overburdenedgeneral funds of such counties, creates an emergency.

Since the Act is applicable to countieshaving a population of 1,200,OOO inhabitantsor more according to the latest Federal Census, It is our opinion that Article 3930a is not in violation of the provisionsof Section 

### 56, of Article III- the Constitutionof Texas.

The remaining question to be determined is whether the' provisions of Article 3930a,making Its provisions subject to the adoption by the commissionerscourt at the written request ofthe clerk, constitutesan unlawful delegation of legislative power.

The caption of the 

### 1961Act, codified inVernon's as Article 3930a,Vernon's Civil Statutes,provides that Its provisions

-1059-Hon. Joe Resweber,page 4 (C-220)

shallbe “subjectto the adoption of this Act by the Commissioners Court of a county otherwise qualified.” The body of the’Act provides “County clerks and clerks of the county courts in counties having*.one

million, tWo,hundred thousand (1,200,OOO)or more populatfon, according to the latest Federal Census, ‘are’herebytiu: thorlzed to recelve’the following fees for their services in lieu of all other fees authorized’by statute,provided the Commissioners Court ofan otherwisequalified county’shallpass’an’order;at the’ request of said clerk, Edopting and applying the provisions of this Act to said clerk

. . ,.

Thus It Is seen that the,Leglslaturehas attempted to grant to the commissloners’courtand the county clerk the power to suspend or not to suspend the operation of House Bill 

### 706,Acts of the,57th Legislature,Regular Session, 1961, Chapter’495,page lCg9, contrary to Section 

### 28 of Article I of the Texas Constitution.

In discussing the question of delegation of legislativepower, it was stated,

in State,

v. Swisher, 

### 17 Tex. 

### 441 (1854):

“Themode in which the acts of the Legislature,are to become .lawsis distinctlypolnted out by’our Constitution. After an act has passed both houses of the Legislature, itmust ,besignedby,the speaker of the house and the president of the senate. Itmust then receive the approval of the Governor. It is then a law. Rut should the Governorveto It and send Itback, it can only.become law by being passed again by’ both houses, by a constitutionalmajority. There is no authority for asking the approval of the voter$ at the primary ,electionsIn the different dounties.,It only requires the votes of their representativesin a legislativecapacity. Rut, besides the fact thatthe Constitutiondoes not provide for such reference to the voters to give validfty to the acts of the Legislature,we regard’it ‘asrepugnant to ‘theprinciples of the regresentativegovernment formed by our’ConstitutionD Under our Constitutfonthe’principle’of lawmaking Isthat ‘lawsare made by the people, not directly,but by and through their chosen representatives. By the aot under consideration this principle Is subverted,and the law is proposed to be made at lastby the popular vote of the people, leading inevitably to,whatMasintended to be avoided, confusion and great popular excitement in the enactment of laws.”

-1060-Hon. Joe Resweber,page 

### 5 (C-220)

it was In Lyle v. State, 

### 80 Tex.Crim. 

### 606, 193 S.W. 

### 680 (lgli'), hela:
“Grantingthe correctness of these decisions con&ruing sectfon 1, art. 

### 28, of the Constitution,‘theprinciple in the pool hall Saw’Is unsoun.d. They so definitely establish the rule of,construction in this state applying to the section of the Constitutionmentioned that overruling them could only~be justified, as 'said by 'Chancellor Kent, 'uponvery urgent reasons and clear manifestation of error.’ It Is aoncelved that the reasons ‘supporting the decisions of this stateunder the constitutionalprovision that the Legislaturehas no power to delegate Its authority or suspend laws either to the people or to other agencies of government are sound. If the contrarywere true, and the principle sought to be applied In the pool hall law became a fixed rule in this state, It would be possible for the Legislature to delegate to the people of a given community the right to suspend the operation of the various police regulations adopted by the Legislature. The question, for example, as to whether the Sunday laws or the pure food laws or other police regulations of the state would be operative In given localitieswould not be dependent upon the act of the Legislaturewhich passed the laws for the government of the entire state,but communities and subdivisionsof the statewould.be permitted by popular vote to’ determine whether or not they would be governed by the law in question.' The framers of the Constitutionwhen they wrote section 

### 28 of artlcle 1 of the Constitution,abandoning the provision theretofore existing that lawsmight be suspendedby the authority of the Legislature, and asserted in the new Constitutionthat they could be suspendedalone by the Legislature,
were not without foresight as to themischievous consequences thatmight flow from extending to the Legislature the power to delegate .ltsauthority to suspend laws. Whatever considerations induged the framers of the Constitution to adopt the provisionmentioned, it is a part of the organic law of thenstate; it has been upheld by the judicial decisions of the state

. . .I'

-1061-Hon. Joe Reswi?ber, page 6 (C-220)

For a similardeelsion, see Ex parted-Mitchell, 109 Tex. 11, 

## 177S.W~.

953(1915). 203s.w.2d320(T~X.CSV. ng’, the conditionsunder which the Legislatu,Pe may delegate to a governingbddy, such
as the’tiommissioners bourt, the power to accept or reject the benefits and provisions of an Act, stated:

I,

. . . it is a long’ and well-settled rule of cozistitutlonal law that the legislature cannot delegate to the people or any board, bureau, commissionerscourt or other administrativeor legalbody or.inst$.tution its authority to make laws; but that does not
mean the legislature Is without authority to confer a power upon a municipal corporatfon
.orits governingbody authority and power to accept or reject the benefits and provisions of a general law legally enacted;bythe leglslature. Conditions can, and frequently do, arise in which the legislature itself cannot, in. a practical and efficientmanner, exercise certain types of authority. Itwould seem the subjectmatter of the statute in question furnished a practical demonstrationof such a cdndition. Obviously the votingmachines are designed to facilitatevoting In those locallties and precinctswhere, on account of the large number of electors eligible to vote, the process of voting becomes congestedand makes ,lt difficult for the election to become completed and all electors accommodatedwithin the time allowed for its completion;whereas, in other sections and precincts, no difficulty In that respect is encountered. In the first class of sectionsand precincts the voting machines are no doubt beneficial and perhaps ‘necessarybut they are not needed in the latter class. ,Itwould be difficult If not impossible, for the legislatureto ascertain the placeswhere themachines were needed and distinguish those in which they were not needed. In such conditions It Is the wellestablishedrule that the legislature Is authorized to delegate to local authorities the, power and authority to determinewhether or ‘, not a general statute shallbecome’effective within their respective jurisdictions.Johnson
v. Martin, 75 Tex. .50,12’S.W.’321; Trlmmier

-1062-Hon. Joe Resweber,page 7 (C-226) i

lature is not v. Carlton, 116.Tex. 572, 296 S.W. 1070; State.

Hi&” way ‘Dept.v. G&ham, 139 Tex. 

## 361, 162S.W.2d 93

. In Trimmier v.,‘Carlton, supra, Chief Justice Cureton,‘speaking’onthe question for the Supreme ‘Court,observed that the exercise of that particular”ty’pe of authorityby the legislature Is recognlied as an exception to the general language of limitation In the Constitution; that it waa merely tantamount to saying that the Constitution itself does not require the imprac1 ticable or the Impossible.”

It is our opinion that the power and duty of the Legisto prescribe fees for the,county clerks of this State such a power as may be delegated to the commissioners court contingentupon the written request of the clerk. It is neither tmpracticalnor impossible for the Legislature to determine what fees ,areto be prescribed; quite the contrary, the Constitutionplaces this duty~on the Legislature and the Legislaturehas exercised this power throughout the years.’It. is therefore our opinion that the provisions of Artlcle,‘3930a, Vernon’s Civil Statutes,making the fees prescribed therein subject to the adoption, of the Act by the commissioners court follawlng requestby the-clerk, are untionstitutional, as being
an unlawful delegation of legislativepower. Since these provisions are not capable of being severedwithout changing the Intent of the Legislature, it Is our opinion that the entire Actmust fall. You are therefore advised that the provisions of Article 3930a are invalid.

In answer to your fourth question, you are advised that since the provisions of Article 3930a’are Invalid, the fees to be prescribed by the county clerk are governed by the provisions of Article 3930, Revised Civil Statutes of Texas, 1925, as amended (Section 1 of Senate Bill 237, Acts of the 55th Legislature, 1957, Chapter

## 228,page 

## 477).

It is not necessary to answer your fifth question as it
was contingentupon our holding that two or more of said statutes
are unconstitutional.

SUMMARY

Article 3930, Revised Civil Statutes of Texas, 1925, as amended, prescribing fees of county clerks, is constitutional.

Article 3930a,Vernonts Civil Statutes, prescribing fees of county clerks in counties

-1063-. I

Hon. Joe Resweber,, page

## 8 (C-220)

having a population of 1;200,0@lnhabltants
or more; and making Its provlsions'subjedt' to the'adoptionby the commissioners court, is unconstitutionaland invalid since the same' constitutesan unlawful,delegationof legislativepower.

Yours very truly,

WAGGONER CARR Attorney General

JR:ms

APPROVED:

OPINION COMMITTEE

W.'V. Geppert, Chairman Gordon Appleman OH.Grady Chandler Milton Richardson LloydMartin BY John Reeves Assistant

APPROVED FOR THE ATTORNEY GENERAL By: HowardW. Maya

-1064-