Honorable J. E. McDonald, Commissioner 

Department of Agriculture 

Austin, Texas 

Dear Sir: Opinion No. o-4018 

Re: Will the rice tax be collectible 

on rice milled after August 1st 

regardless of the fact that the 

effective date of the tax Act is 

established as October 2nd? 

We are in receipt of your letter of September 19, 1941, 

in which you request the opinion of this department on the 

facts set out therein as follows: 

"The states of Louisians, Arkansas and Texas 

have enacted laws providing for the creation of 

Rice Commissions carrying provisions for the collection of a tax to be paid by millers processing 

rice. The tax collected to be used for advertisIng purposes to promote the consumption of the 

product. 

"The Loulsfana and Arkansas Acts are now in 

force, however, the Texas Act does not go into 

effect until October 2. Under both the Louisiana 

and Arkansas Acts, it seems that the taxes levied 

are now collectable. We wish to have you advise 

this Department on the following. 

"The Texas Law provides that rice mllled after 

August 1, shall be taxed, however the Act does not 

become effective until October 2. Will the tax be 

collectable from and after August 1, regardless of 

the fact that the effective date is established as 

October 2?" 

The Texas Rice Development Law was enacted as House 

Bill 136 Acts of the Forty-seventh Legislature, Regular Session, 1941, and the same was 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 after August 1st shall be taxed, and that the Act 
Honorable J. E. McDonald, page 2 O-4018 

does not become effective until 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 is milled 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 process which may hull, clean, 

or mill rice, whether whole or broken, coated or 

uncoated, so as to render the product into the 

condition of 'milled rice' as that term is defined herein. This Act shall also include and 

such tax shall be paid on all rice grown outside 

the State of Texas which may be processed or milled by a Texas rice miller, as that term is defined herein; provided further that this tax is 

and shall be on the act of milling the rice, and 

in no manner is it or shall it be construed as 

an occupation tax. 

"sec. 6. That said tax shall be paid by all 

rice millers in the State of Texas for all rice 

milled in the State of Texas and shall be payable 

within the first ten (10) days of each month for 

all rice milled during the preceding calendar 

month, which tax shall be remitted direct to the 

Rice Development Commission hereby created. Any 

rice miller failing to pay said tax within the 

time specified and as herein required shall pay 

a penalty of ten (10) per cent of the amount due, 

plus one per cent per month for each and every 

month In which said tax is not paid. ~ 

"Should any miller collect any such tax or 

part thereof from a grower, as such are defined 

In this Act, he shall be guilty of a misdemeanor 

and upon conviction therefor, be punished b a 

fine of not less than Twenty-five Dollars 

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 shall become effective on the first day of August 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 authorities with 

similar powers and purposes. The provisions of 

this Section and of Section 4 and Sectlon 7, or 

any other Section or part of this Act in which 

the valldlty of such Act depends upon, or is 

connected with, similar action by the Legislatures of Louisiana and Arkansas, shall be 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 same powers 

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 such purposes. 

"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 same powers and purposes, and 

vesting the authority of the Rice Development 

Commission for Louisiana, under Act No. 112 of 

the 1940 Legislature, in the Department and Director of the Department of Agriculture, the 

Department and Director of the Department of 

Ffnance, and the Department and Director of then 

Department of Revenue for the State of Louisiana 

created by Act No. 47, and Act no. 48 of the 

1940 Legislature, is within the terms of this 

Act, so that this Act shall become effective 

on the first day of August after the Legislature 

of Arkansas shall have adopted a Statute similar In purpose 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 hundred pounds of mllled rice for 

similar purposes." 

In effect the Legislature has provided that the Texas 

law should become effective on the happening of a contingency 

-- that is on the first day of August 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 facts you submitted~the State 

of Arkansas also prior to August 1, 1941, enacted a law in con- 
Honorable J. E. McDonald, page 4 O-4018 

formity with the provisions of the Texas Rice Development Law 

which under the wording of SectLons 13 and 14 of the Texas law 

would make the Texas Rice Development Law effective as of 

August 1, 1941. 

Section 17 of the Act declared an emergency and provided thstthe Act should take effect from and after Its passage. 

In the case of People v. San Bernandino High School 

Dist., 216 P. 959, the court stated as follows: 

"It Is well settled that a statute may be 

so drawn that upon the happening of some prescribed contingency it. shall become operative, 

or, that it may remain In force until abrogated 

for like reason." 

To the same effect see the cases of Le Page v. Bailey 

S.E. 457, and Poindexter v. 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 ninety days after the adjournment of the session at which it was 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, otherwise direct; 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 each House of the Texas Legislature. 

Therefore Section 39 is applicable and the Texas Rice Development Law, because of such constitutional provision, could not 

go into effect until ninety days after the adjournment of the 

session at which It was enacted which effective date was October 2, 1941. While the Legislature has the authority to set 

a specific date at which an Act it passes shall become effective which date is subsequent to ninety days after the adjournment of the session at 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,the Legislature from in 

any manner making a law become effective before ninety days 
Honorable J. E. McDonald, page 5 O-4018 

after the adjournment of the session if said bill upon passage 

does not receive a two-thirds vote of the members elected ta 

each House of the Legislature. In discussing the above quoted 

constitutional provision the Supreme Court of Texas In the 

case of Missouri K. & T. Rg. Co. of Texas v. State, 100 S.W. 

766, the court stated, as follows: 

and 

II 

. . . The Words, 'or go into force,' used 

In our Constitution, emphasizes the idea that 

the law is without 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 effective date of 

House Bill 136 as August 1, 1941, violates Section 39 of 

Article III of the Constitution of Texas. 

'We call your attention, however, to Section 15 of said 

Act. Said Section reads as follows: 

"That lf any word, phrase, sentence, paragraph, or portion of this Act shall be unconstitutional, it shall not affect the validity of 

the remaining portions of this Act, but the same 

shall be Construed to be effective, as though the 

unconstitutional word, phrase, sentence, paragraph, 

or portion thereof were eliminated." 

Without any specific provision in the Texas Rice Develo 

ment Law as to when the same shall become effective said Act 

would become effective on October 2, 1941. It is the opinion 

of this department that because of the above reasons the sections of the Act purporting to aet an effective date are Inoperative and the Act in question becomes effective October 2, 

1941, and that the tax applies only to rice milled after such 

effective date. 

In this opinion we are not passing upon the constitutionality of the Texas Rice Development Law but are confining 

our opinion to the question asked-- that is whether or not 

rice mllled b8tW88n August 1, 1941, and October 2,1941, is subject to the tax levied therein. 

BG :LM:wc 

Yours very truly 

ATTORNEY GENERAL OF TEXAS 

APPROVED OCT. 9, 1941 

s/Grover Sellers 

FIRST ASSISTANT 

ATTORNEY GENERAL 

By s/Billy Goldberg 

Billy Goldberg 

Assistant