### E NEY GENERAL AS

BVILL WILSON ATTONNEY GENERAL Ausniu aa. TEXAS

January 24, 

### 1962

Honorable Bill Hollowell, Chairman Committeeon StateAffairs House of Representatives Austin, Texas OpinionNo. 

### WW-1248
Re: Constitutionalityof House Bill 95 creating the State Disaster Dear Mr. Hollowell: Council.

Your request for an opinion read.3 as follows:
"HouseBill 95 by Mace Stewart, et al, has been referred to the State Affairs Committee,House of Representatives. The hearing on this bill will be set shortly. Your official opinion is requested as to the constitutionalityof House Bill 95. "Theprimary question is whether or not Article 3, Sec. 

### 51 of the Texas Constitution provides sufficientauthority for the State to assume Its responsibility in cases of a public calamity instead of relying entirely on FederalAid." Section 1 of House Bill 95 states thepurpose of the Act as follows:

"Section1. The State of Texas by this Act, which may be cited as the 'StateResponsibility for DisasterAct,' declares itself fully capable of resuming the State responsibilityto its citizens in cases of public calamityas enacted seventy-five 

### (75)years ago in accordance to the duty prescribedby the Constitutionof the State of Texas." Section 2 creates the State Disaster Council to consist of the Governor,Lieutenant Governorand the Attorney General and prescribes the duties of this Council which in substance is to determinewhether any flood,Honorable Bill Hollowell,page 2 

### (~~-1248)

drought, fire, hurricane, earthquake, storm or other catastrophe in any part of Texas is of sufficient severity and magnitude to constitutea public calamity and to provide state assistance to areas which are determined to be public calamityareas.

Section 

### 6 creates a special fund to be knownas :the Texas Disaster Fund and allocates a portion of tax moneys to be credited to such fund and makesnrovlslons for its use and investment.

9 again Section 

### 8 is the severabilityclause and Section

statesthe purpose of the Act as follows:

Section 

### 51 of Article III of the Constitutionof

. . - _ Texas prohlblts tne granting OS any public moneys to any individual,association or corporationexcept in those cases of public calamityand specifically states:

"Sec. 9. The fact that during the last decade One Hundred Twenty Nine Million, Seven Hundred Thousand Dollars ($129,700,000)of 'free'100% FederalAid has been expended to aid victims of public calamities in Texas without financial contributionby the State of Texas, whereas seventy-five 

### (75)years ago the State of Texaswithout Federal aid fulfilled the responsibility in cases of public calamity laid down in Article III, Section 

### 51 of the Constitutionof the State of Texas; and the fact that State'sRights means State's responsibilitiesrather than blind obeisance to the Federal dole, createsan imperativepublic necessity that the ConstitutionalRule requiring bills to be read on three severaldays in each house be suspended,and this Rule is hereby suspended,and that this Act take effect and be in force from and after its passage, and it is 30 enacted."

"Theprovision of this Section shallnot be construed so as to prevent the granting of aid In cases of public calamities. The test of "casesof public calamity"has been settled in City of Aransas Pass v. Keeling, 112 Tex. 339, 247 S.W. 

### 818 (1923)wherein the Supreme Court stated:Honorable Bill Hollowell,page 

### 3 (ww-1248 )

"Thepeople of the state at large have a direct and vital interest In protecting the coast cities from the perils of violent storms. The destruction of ports, throughwhich moves the commerce of the state, is a state-wide calamity. Hence seawalls and breakwaters on the Gulf coast, though of specialbenefit to particular communitiesmust be regarded as promoting the generalwelfare and prosperity of the state. It is because of the special benefits to particular cities and counties that specialburdens on property within their boundaries, through taxation are justified. Dut the state, in promoting the welfare, advancement,Andy

prosperity'ofall her citizens, or in aiding to avert injury to her entire citizenship, cannot be regarded otherwise than as performing a proper function of state government. Cities or counties furnish convenient and appropriate agencies throughwhich the statemayperform duties resting on the state, in the performance of which the cities or counties have a special interest. The use of the cities or countiesas agents of the state in the discharge of the state'sduty is !.n no wise inhibitedby the Constitution in s,ection



### 51of article 

### 3.” Applying the foregoing test to House Bill 95, it is noted that aid is to be granted to public calamity areas when such calamity is caused by "any flood, drought, fire, hurricane, earthquake, storm or other catastrophe of sufficient severityand magnitude to constitutea public calamity," within the meaning of Section 

### 51,Article III of the Constitution of Texas.

You are therefore advised that the provisions of House Bill 95 as furnishedwith your request are constitutional.

SUMMARY

House Bill 95 of the Third Called Session of the 

### 58thLegislatureproviding for the creation of a State Disaster Fund to beHonorable Bill Hollowell,page 4 

### (WW-1248)

expended for the purpose of granting aid to public calamity areas as defined in Section 

### 51of Article III of the Constitutionof Texas is constitutional.

Very truly yours, WILL WILSON Attorney General of Texas

JR:mkh:zt Assistant

APPROVED: OPINION COMMITTEE HowardW. Mays, Chairman Malcolm L. Quick Dwain Erwin Marvin Thomas Elmer McVey
REVIEWED FOR THE ATTORNEY GENERAL BY: HoughtonBrownlee, Jr.