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: Constitutionality of 

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 3930 V.T.C.S. are 

in accord with the Constitution of 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. 

"Your opinion 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 questions of Mr. R. E. Turrentine, Jr., are as 

follows: 

"(1) Was the Article 3930 Bection 4 

of House Bill 642, Acts of the 49th Leglslature, Regular Session, 1945, Chapter 368, 

page 662, at page 6637 which 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 7 constitutional? 

"(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 4727 consti- 

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

“(3) Is the present Article 3930 (a) 

R.C.S. of Texas, 1925 fiection 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 should be unconstitutional or, if any two of the three 

should be 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 

,of the 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 constitutionality of the three statutes cited?" 

Article 3930, Revised Civil Statutes of Texas, 1925, 

as amended by 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 Article V of the Constltutlon of Texas 

specifically authorizes 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 2 5 Act referred to 

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.authorized to prescribe the fees of county clerks, Article 

3930, Revlsed,Civil Statutes 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 

counties having a population of 1,200,OOO inhabitants or 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 commissioners court of a county 

otherwise qualified. 

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

Section 56 of Article III of the Constitution of 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 special within the meaning of 

the Constitution even though Its enforcement be 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)i Stephenson v. Wood, 119 Tex. 564, 34 ~7~.'~ds$% 

(1931); 'McGee Irrigating Ditch Company v. Hutton, 85 Tek. 587, 

22 S.W. 967 (1893); Handy v. Johnson, 51 Fed.2d 809, (E.D. 

Tex. 1931); Lower Colorado River Authority v. McGraw, 125 Tex. 

268, 83 S.W.2d 629 1,193s); Lower Neches Valley Authority v. 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 reasonable basis for the 

classification made by the law or whether the law operates 

equally on all within the class. Rodriguez v. Gonzales, 148 Tex. 

537, 227 S.W.2d 791 Bexar County v. Tynan, 128 Tex. 223, 

$5' S.W.2d 467 (1936 

150 S.W.2d 1000 1 

(1950); 

; Miller v. El Paso County, 136 Tex. 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 affected by the provisions of 

this Act are inadequate and Insufficient to take care of the 

expenses of the officers affected, thereby placing an extra burden on the already overburdened general funds of such counties, 

creates an emergency. 

Since the Act is applicable to counties having a population of 1,200,OOO inhabitants or 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 

Constitution of Texas. 

The remaining question to be determined is whether the' 

provisions of Article 3930a, making Its provisions subject to 

the adoption by the commissioners court at the written request 

of the clerk, constitutes an unlawful delegation of legislative 

power. 

The caption of the 1961 Act, codified in Vernon's as Article 3930a, Vernon's Civil Statutes, provides that Its provisions 

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

shall be “subject to 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’hereby tiu: 

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’shall pass’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,Leglslature has attempted to grant 

to the commissloners’court and 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 legislative power, 

it was stated, in State, v. Swisher, 17 Tex. 441 (1854): 

“The mode in which the acts of the Legislature,are to become .laws is distinctly polnted out by’our Constitution. After an act has 

passed both houses of the Legislature, it must 

,be signed by,the speaker of the house and the 

president of the senate. It must then receive 

the approval of the Governor. It is then a law. 

Rut should the Governor veto It and send Itback, 

it can only.become law by being passed again by’ 

both houses, by a constitutional majority. There 

is no authority for asking the approval of the 

voter$ at the primary ,elections In the different 

dounties., It only requires the votes of their 

representatives in a legislative capacity. Rut, 

besides the fact thatthe Constitution does not 

provide for such reference to the voters to give 

validfty to the acts of the Legislature, we regard’ it ‘as repugnant to ‘the principles of the 

regresentative government formed by our’Constitution D Under our Constitutfon the’principle’of 

lawmaking Isthat ‘laws are 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 last by the popular vote of 

the people, leading inevitably to,what Masintended 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: 

“Granting the correctness of these 

decisions con&ruing sectfon 1, art. 28, of 

the Constitution, ‘the principle 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 Constitution mentioned that overruling them could 

only~be justified, as 'said by 'Chancellor 

Kent, 'upon very urgent reasons and clear 

manifestation of error.’ It Is aoncelved 

that the reasons ‘supporting the decisions 

of this state under the constitutional provision that the Legislature has no power to 

delegate Its authority or suspend laws either 

to the people or to other agencies of government are sound. If the contrary were 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 localities would not be dependent upon the act of the Legislature which passed the laws for the government of the entire 

state, but communities and subdivisions of the 

state would.be permitted by popular vote to’ 

determine whether or not they would be governed by the law in question.' The framers of the 

Constitution when they wrote section 28 of artlcle 1 of the Constitution, abandoning the provision theretofore existing that laws might be 

suspended by the authority of the Legislature, 

and asserted in the new Constitution that they 

could be suspended alone by the Legislature, 

were not without foresight as to the mischievous 

consequences that might flow from extending to 

the Legislature the power to delegate .lts authority to suspend laws. Whatever considerations 

induged the framers of the Constitution to adopt 

the provision mentioned, it is a part of the 

organic law of then state; it has been upheld 

by the judicial decisions of the state . . .I' 

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

For a similar deelsion, see Ex parted-Mitchell, 109 Tex. 

11, 177 S.W~. 953 (1915). 

203 s.w.2d 320 (T~X.CSV. 

ng’, the conditions under 

which the Legislatu,Pe may delegate to a governing bddy, 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, commissioners court or other 

administrative or legal body 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 

.or its governing body authority and power to 

accept or reject the benefits and provisions 

of a general law legally enacted ;by the leglslature. Conditions can, and frequently do, 

arise in which the legislature itself cannot, 

in. a practical and efficient manner, exercise 

certain types of authority. It would seem the 

subject matter of the statute in question furnished a practical demonstration of such a 

cdndition. Obviously the voting machines are 

designed to facilitate voting In those locallties and precincts where, on account of the 

large number of electors eligible to vote, the 

process of voting becomes congested and makes 

,lt difficult for the election to become completed and all electors accommodated within 

the time allowed for its completion; whereas, 

in other sections and precincts, no difficulty 

In that respect is encountered. In the first 

class of sections and precincts the voting 

machines are no doubt beneficial and perhaps 

‘necessary but they are not needed in the 

latter class. ,It would be difficult If not 

impossible, for the legislature to ascertain 

the places where the machines were needed and 

distinguish those in which they were not needed. In such conditions It Is the wellestablished rule that the legislature Is authorized to delegate to local authorities the, 

power and authority to determine whether or ‘, 

not a general statute shall become’ 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, 162 S.W.2d 

93 . In Trimmier v.,‘Carlton, supra, Chief Justice Cureton,‘speaking’on the question for the 

Supreme ‘Court, observed that the exercise of 

that particular”ty’pe of authority by 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 contingent upon the written request of the clerk. It is 

neither tmpractical nor impossible for the Legislature to 

determine what fees ,are to be prescribed; quite the contrary, 

the Constitution places this duty~on the Legislature and the 

Legislature has 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 request by the-clerk, are untionstitutional, as being 

an unlawful delegation of legislative power. Since these provisions are not capable of being severed without changing the 

Intent of the Legislature, it Is our opinion that the entire 

Act must 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 contingent upon 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'adoption by the commissioners court, 

is unconstitutional and invalid since the 

same' constitutes an unlawful,delegation of 

legislative power. 

Yours very truly, 

WAGGONER CARR 

Attorney General 

JR:ms 

APPROVED: 

OPINION COMMITTEE 

W.'V. Geppert, Chairman 

Gordon Appleman 

OH. Grady Chandler 

Milton Richardson 

Lloyd Martin 

BY 

John Reeves 

Assistant 

APPROVED FOR THE ATTORNEY GENERAL 

By: Howard W. Maya 

-1064-