Honorable J. E. McDonald, Commissioner

Department ofAgriculture Austin, Texas

Dear Sir: OpinionNo. o-4018 Re: Will the rice tax be collectible
on rice milled afterAugust 1st regardless of the fact that the effectivedate of the taxAct is establishedas October 2nd?

We are in receipt of your letter of September 19, 1941, inwhich you request the opinion of this department on the facts set out therein as follows:

"The states of Louisians,Arkansas and Texas have enacted lawsproviding for the creation of Rice Commissions carryingprovisions for the collection of a tax to be paid by millers processing rice. The tax collected to be used for advertisIngpurposes to promote the consumption of the product.

"TheLoulsfana and Arkansas Acts are now in force, however, the Texas Act does not go into effect until October 2. Under both the Louisiana and ArkansasActs, it seems that the taxes levied
are now collectable. We wish to haveyou advise thisDepartment on the following.
"TheTexas Law provides that rice mllled after August 1, shallbe taxed, however the Act does not become effectiveuntil October 2. Will the tax be collectable from and afterAugust 1, regardless of the fact that the effectivedate is establishedas October 2?"

The TexasRice Development Law was enacted as House Bill 136 Acts of the Forty-seventhLegislature,Regular Session, 1941, and the samewas placed in the Revised Civil Statutes of Texas as Chapter 12,Article 165-5 of Title 4.

In your letter you state that the law provides that rice milled afterAugust 1st shall be taxed, and that the ActHonorable J. E. McDonald, page 2 O-4018

does not become effectiveuntil October 2nd. The sections of the Act levying the tax are Sections 5 and 6 and they read
as follows:

"Sec. 5. That there is hereby levied a processing tax of Two (2) cents per hundred pounds
on all milled rice which ismilled or processed in the State of Texas which may be produced from rice grown in the State of Texas by the process of hulling the rice and removing the germ and bran, or any other processwhich may hull, clean, or mill rice, whether whole orbroken, coated or uncoated, so as to render the product into the condition of 'milledrice' as that term is defined herein. This Act shall also includeand such tax shallbe paid on all rice grown outside the State of Texas which may be processed ormilled by a Texas rice miller, as that term isdefined herein; provided further that this tax is and shallbe on the act of milling the rice, and in no manner is it or shall itbe construedas an occupationtax.

"sec.6. That said tax shallbe paid by all rice millers in the State of Texas for all rice milled in the State of Texas and shallbe payable within the first ten (10)days of each month for all rice milled during the preceding calendar month, which tax shallbe remitted direct to the Rice Development Commission hereby created. Any rice miller failing to pay said tax within the time specifiedand as herein required shall pay a penalty of ten (10)per cent of the amount due, plus oneper cent per month for each and every month Inwhich said tax isnot paid. ~
"Shouldany miller collect any such tax or part thereof from a grower, as such are defined In thisAct, he shallbe guilty of a misdemeanor and upon convictiontherefor,be punishedb a fine of not less than Twenty-fiveDollars
nor more than One Rundred Dollars ($lOO)."( 25)

It is apparent that the above quoted sections of the Rice Development Law do not set any date when the rice will first be taxed. However, the Legislature in Sections 13 and 14 of the Act provided as follows:

"Sec.13. That this Act shallbecome effective on the firstday ofAugust after the Leg-. .

Honorable J. E. McDonald, page 3 0-4018

lslature of Louisiana and Arkansas shall have adopted a similar statute, assessing a tax of not less than Two (2) cents per one hundred (100) pounds of milled rice which may be mllled In said States, and creating similar commissions, boards, departments, or other authoritieswith similarpowers and purposes. The provisions of this Section and of Section 4 and Sectlon 7, or any other Section or part of this Act inwhich the valldlty of suchAct depends upon, or is connectedwith, similaraction by the Legislatures of Louisiana andArkansas, shallbe satisfled by the creation and vesting of such authority in any state officer,board, commission,department, or other authority in the States of Louisiana and Arkansas,provldlng the samepowers are delegated to such officer,board, commission department, or other authority, and providing that a tax is levied of not less than the amount levied herein for suchpurposes.

"Sec. 14. That the creation of a Rice Development Commission for the State of Louisiana, levying the same tax as herein levied in this State, for the samepowers and purposes, and vesting the authority of the RiceDevelopment Commission for Louisiana, under Act No. 112 of the 1940 Legislature, in theDepartment and Director of theDepartment of Agriculture, the Department and Director of theDepartment of Ffnance, and theDepartment and Director of then Department ofRevenue for the State of Louisiana createdby Act No. 47, and Act no. 48 of the 1940 Legislature, iswithin the terms of this Act, so that this Act shallbecome effective
on the first day ofAugust after the Legislature ofArkansas shall have adopted a Statute similar Inpurpose to this Act, or to Act No. I.12 of the 1940 Legislature of the State of Louisiana, and levied a tax of not less than Two (2) Cents per hundredpounds of mllled rice for similarpurposes."

In effect the Legislaturehas provided that the Texas law shouldbecome effective on the happening of a contingency

-- that is on the first day ofAugust after the Legislatures of Louislana and Arkansas shall have enacted similar laws. In Section 14 it Is stated that the State of Louisiana has enacted such a similar law. Under the factsyou submitted~theState of Arkansas also prior to August 1, 1941, enacted a law in con-Honorable J. E. McDonald, page 4 O-4018

formitywith the provisions of the Texas Rice Development Law which under thewording of SectLons 13 and 14 of the Texas law would make the TexasRice Development Law effective as of August 1, 1941.

Section 17 of theAct declared an emergency and provided thsttheAct should take effect from and after Itspassage.

In the case of People v. San BernandinoHigh School Dist., 216 P. 959, the court stated as follows:

"It Iswell settled that a statutemay be
so drawn that upon the happening of some prescribed contingency it.shallbecome operative, or, that itmay remain In force until abrogated for like reason."

To the same effect see the cases of Le Page v. Bailey S.E. 457, and Poindexterv. Pettis County, 246 S.W. 38.170

Article III, Section 39, of the Constitution of Texas, provides as follows:

"No law passed by the Legislature, except the general appropriation act, shall take effect
or go into force until ninetydays after the adjournmentof the sessionat which itwas enacted, unless in case of an emergency,which emergency must be expressed in a preamble or in the body of the act, the Legislature shall,by a vote of two-thirds of all the members elected to each House, otherwisedirect; said vote to be taken by yeas and nays, and entered upon the journals." According to the records House Bill 136, the Act in question, did not receive a vote of two-thirds of all of the members elected to eachHouse of the Texas Legislature. Therefore Section 39 is applicable and the Texas Rice Development Law, because of such constitutionalprovision, could not go into effect until ninety days after the adjournment of the sessionat which Itwas enactedwhich effectivedate was October 2, 1941. While the Legislature has the authority to set
a specificdate at which an Act itpasses shall become effective which date is subsequentto ninety days after the adjournmentof the sessionat which the act was enacted, as held in the case of Rudco Oil & Gas Co. v. Lemasters, 146 S.W. (2d) 806, it is our opinion that Section 39 of Article III of the Constitution of Texas prohibits,theLegislature from in any manner making a law become effectivebefore ninety daysHonorable J. E. McDonald,page 5 O-4018

after the adjournment of the session if said bill upon passage does not receive a two-thirdsvote of the members elected ta eachHouse of the Legislature. In discussing the above quoted constitutionalprovision the Supreme Court of Texas In the
case of MissouriK. & T. Rg. Co. of Texas v. State, 100 S.W. 766, the court stated, as follows:

and II

. . . The Words, 'orgo into force,' used In our Constitution,emphasizes the idea that the law iswithout vitality until the 90 days shall expire."

It Is the opinion of this department that Sections 13 14 which in effect attempts to set the effectivedate of House Bill 136 as August 1, 1941, violates Section 39 of Article III of the Constitutionof Texas.

'Wecallyour attention,however, to Section 15 of said Act. Said Section reads as follows:

"That lf any word, phrase, sentence,paragraph, or portion of thisAct shall be unconstitutional, it shall not affect the validity of the remaining portions of this Act, but the same shallbe Construed to be effective,as though the unconstitutionalword, phrase, sentence,paragraph, or portion thereofwere eliminated."
Without any specificprovision in the TexasRice Develo ment Law as to when the same shallbecome effective saidAct would become effective on October2, 1941. It is the opinion of this department that because of the above reasons the sections of the Act purporting to aet an effectivedate are Inoperativeand the Act in question becomes effective October 2, 1941, and that the tax applies only to rice milled after such effectivedate.

In this opinionwe are not passing upon the constitutionality of the TexasRice Development Law but are confining
our opinion to the question asked-- that iswhether or not rice mllled b8tW88nAugust 1, 1941, and October 2,1941, is subject to the tax levied therein.

BG :LM:wc Yours very truly

ATTORNEYGENERAL OF TEXAS APPROVED OCT. 9, 1941 s/Grover Sellers FIRST ASSISTANT ATTORNEY GENERAL By s/BillyGoldberg Billy Goldberg Assistant