              TEE    A’ITORNEY    GENE-I.
                         OP !BJExAs



                       Aprll2,19))9


 Eon. Pearce Johnson, Cbairmsn    opinion Ro. v-801
 Committee on State Affairs
 Howe of Repesentatlves           Re: .LegisfstlPe euthorlty
 Auscln, Texas                        to enact S.B/Ro. 87,
                                      relating to lssuauce
                                      of bonds by Robertson
  Dear Sir:                           County to fund out-
Ts                                    standing scrip.

         We have recefved your letter of March 18, 199,   which
 Is quoted, In wt,   as follows:
           .~. ,~.
          ?he Comltt88 qu6StiOn8d bhe necessity Of
      the bill, and moved that it be sent to~the At-
      torney Cteneralfor a report 8s to whether or
    .~not thwblll'vas neoessary. In other vords,
      are ve giViI@ 8UthOId.tyt0 do SOIIWthiIIg
                                              that
      Is already~permitted?"

         We are not In a posltlon to answer your question as to
 vhether thls bill is necessary. That IS 8 fact qUeStion which
 goes to the merits of the bill rather than Its valldlty. It
 Is assumed that you wish to knov vhether the proposed bill Is
 constltutloual, and, if so, whether It accomplishes something
 not already pro9lded for in 8XiStlUg Statutes.

          The propoded bill ls a special l.avdealing only with
 Robertson County. In Section 1 thereof the Com~Issloaers~
 Court Is given authority to Issue refundlog bonds to refund
 road and bridge sarlp varrants of the county vblah are out-
  st8ndlng on the effective dat8 of the eat, with the pvovlso,
 .hovever, that not more than $88,000 of reiundlng bonds shall
 be issued under the terms of the sat.

         Seatlon 2 relcrtesto the maturity dates, Interest
 rates, snd exeautlon of the bonds, snd pwovldes that no no-
 tloe of Intention to Issue the r?fundlng bonds shall be re-
 quired.
Hon. Pearce Johnson - Page 2 (v-801)



        Section 3 makes appliCabl8 to such refunding bonds
the provisions of Articles 709 to 715, inclusive, Revised
Civil Statutes, relating to approval of the bonds by the
Attorney ffeneral and reglstrstion thereof by the Comptrol-
ler.

        Section 4 provides that 811 SCrip Varll8IItSOUtStand-
Ing Of th8 8ff8OtiV8 d8t8 Of th8 aCt ar8 V8ltidsted.

          SeCtiOn 5 is the usual emergency Ol.aUSe.

         & examination of the caption reveals that it fully
describes th8 provlslons of the act, and is sufficient, as-
s-Q3   f of oourse, that the act itself is constitutional.

        Section !56 of Article III, Constitution of Texas,
prohibits the enactment of local or special lavs'vhich,
among other things, regulate the ,affairs of counties, or
which authorize the laying out, opening, altering or,maln-
taining of roads, highways, streets or alleys. This wo-
hlbltion applies to all local and special laws "except as
otherwise provided in this Constitution."

         It Is evident that this positive inhibition would
preclude the valid enactment of the bill under consldera-
tlon unless 8Uthoritg therefor is found elsewhere ltithe
Constitution.   Section 9 Of &tic18 VIII Of the COnStitu-
tion relates to certain county taxes, among which is the
tax for road and bridge purposes. This section provides,
in part, as follows:

           "And the L8gislAtUr8 may pass LOoal laWi for
       the maintenance of the public roads snd high-    *
       ways, without th8 local notice required for
       special or local laws."

         If the proposed act in question comes within the
pUrVi8W of th8 above-quoted prOViSiOn, then 1tS 8nWtm8nt
is~ not prohibited by Section 56 of Article III. In the
case of Henderson County v. Allred, 120 T. 483, 40 S. W.
(26) 17, th8 Supreme Court had for conslderatlon the V8-
lldlty of a special road law enacted for Henderson County,
Hon. Pearce Johnson - Page 3 (v-801)



similar to the proposed law under consideration.   We quote
from the opinion of the court as follows:

         "The act in ques.tion is a local or special
     road law enacted'for Henderson county without
     local notice having been given. Under its
     terms the commissioners' court of Henderson
     county was authorized to fund into bonds of              .
     the county such of Lts legal indebtedness
     chargeable against the road and bridge fund.
     as existed January 1, 1929, which might be
     represented by script or time warrants.    It
     was also provided in said act that such fundlnq
     bonds might be issued without the necessity of
     submitting the question of their issuance to a
     Vote of t'he people of the county.
        I, . . .

        "Nor can the contention that the passage of
     th8 local or special road law for Henderson
     coun.ty is prohibited by the terms of section
     56, article 3, of the Constitution, be sustain-
     ed. This section of the Constitution provides:
     'The legislature shall not, except as otherwise
     provided in this constitution, pass any local or
     special law: * * * authorizing the laying out,
     open:inq, altering or nmintalnlng of roads, high-
     ways, streets or alleys.'

         "The above provision is a part of the oriql-
     nal Constitution of 1876. Its terms operated
     to prohibit the Legislature without proper no-
     tice having been given from enacting any.local
     Jr special law in regard to public roads from
     the date of Its adoption in 1876 until Decem-
     ber 19, 1290. On the latter date, however,
     section Q of article 8 was amended.   The amend-
     atory portion of this article contained the
     following; clause: 'And the legislsture may pass
     local laws for the maintenance of the public
     roads and hiqhways', without the local notice
     required for special or local laws.'
Hon. Pearce Johnson - page 4 (v-801)



        “On J8nuarg 7, 1907,  S8CtiOn 9 Was ag8fn
     amended by changing ~lts former terms, but the
     above provision with reference to the passage
     of 1OC81 or SpeCi8l road 1aWS was re-8n8Oted
     in the Identical language in which it was
     originally adopted.

        "From the above-quoted prOViSiOnS of the
    Constitution, it will be readily seen that
    local or special road laws are expressly ex-
    empted from the operation of the ~OPiSiOnS
    of section 56, article 3. The power of the
    Legislature to enact such local or special
    laws without the required notice is there&
    fore placed beyond OaVil.
          11
               . . .
          11
           . . . If the Legislature pos'sessed the
     power to control by 10~81 or special laWS the
     laying out, construction, and maintenance of
     public roads in Henderson county, which cannot
     be doubted under the foregoing decisions, then
     it must necessarily follow that it has the power
     to control and regulate by such a law the ex-
     penditure of all funds used for such purposes.
     Undoubtedly, the Legislature might lawfully,
     by local law, have made provision for the is-
     suance by the county of the warrants and script
     which it has now authorized to be funded Into
     negotiable bonds. The power to authorize the
     creation of -such indebtedness and to provide
     the form In which It shall be 8vid8no8d neces-
     sarily includes the power to authorize a change
     in the form thereof.
          11
           . . . Indisputably the Legislature had the
     power to authorize Henderson county by loCal or
     special law to issue warrants or bonds 8S 8
     means of obtaining funds to be used in the bulld-
     lng and operation of its road system without sub-
     mitting the question as to the issuanc8 thereof


      ,
Hon. Pearce Johnson - Page 5 (v-801)



     to a vote of the people of the county. This
     being true, it logically follows that, Where
     an indebtedness has been lawfully incurred
     for road purposes by Henderson county and its
     obligations iSSU8d therefor in the form of
     script and warrants, that the Legislature may
     validly authorize the county to change su.ch
     form of indebtedness by funding the same into
     the negotiable bonds of the county."


        It Is clear under this decision that Sectlons~ 1,
2, and 3 of proposed Senate Bill No. @ constitute a valid
exercise of legislative power, assuming that the scrip war-
rants were validly issued.

        Section 4 of the act provides that all scrip war-
rants outstanding on th8 effective date of the act are
validated.  It has been held time and agsin that the enact-
ment of curative statutes constitutes a valid exercise of
legislative power, snd that the Legislature can ratify
anything that it could have authorized in,the first ln-
stance. Tom Green County v. Moody, 116 T..299, 289's. W.
381; Hunt v. Atkinson (Corn.App.), 18 S. W. (2d) 594; 39
Tex. Jur. 41.

         It is clear that the Legislature has the power to
Validate any action that it could have authorized in the
?irst instance; hOWeVer, It does not have the power to
ra,tifg any a& which is prohibited under our constitution.
In the case of Bigfoot Independent School Dist. v. Genard,
x16 s. W. (2d) 804, affirmed 129 9. W. (2d) 1213, the court
held as follows:
        II
             . . It is conceded, and is obvious,
             .

     that the Legislature has no power to vali-
     date an act which It did not have the power
     to authorize in the first instance; it can-
     not ratify an act it Gannet authorize.   Here,
     the Constitution prohibited the imposition
     and levy of a tax upon the property embraced
     in an independent school district except when
Hon.   Peame   Johnson - Page 6 (v-801)



       authorized by a majority of the taxpaying
       voters of the district at an election held
       for that purpose. The Legislature had no
       inherent or granted power to dispense with
       that aonstitutional requirement and author-
       ize the trustee of the district to make such
       levy until the voters had acted favorably
       thereon, and not having the power to author-
       ize the act in the first instance, it had no
       power to ratify or validate~it after it was
       committed without authority.  2 Cooleyta
       Conat. Lim., 8th Ed. 791; 39 Tex. Jur. p.
       41, % 19; Tom Green County v. Moody, II6
       Tex. 299, 289 9. W. 381."


        Thus, Section 4 would have the effect of valida-
ting the scrip warrants of the cow&g    insofar as non-
constitutional objec~tlons are concerned.   If there were
certain errors or~om1asions in the issuance of the war-
rants, but these were statutory objections and not con-
stitutional objections, then after the act would beoome
effective,- such errors and omissions would become imma: ,.
terial. For example, The Bond and Warrant L&w (Artiale
2368a, V. C. 3.) prohibits the commissioners* court from
making any contract calling for the expenditure of
$2;000.00 or more of any county funds without first sub-~
mitting the contract to competitive bids. Advertisement
has to be made, and the successful bidder must give a
performance bond. These steps are required by statute,
and not by the Constitution.    If the steps are not taken,
then under the statute the contract is void. However, the
Legislature may enact a validation statute which would
dispense with these'objections.

        We have said above that the Legislature does not
have the power to validate an unconstitutional act. It
is too well settled to require citation of authority that
scrip warrants are payable out of aurrent revenues, and
that to constitute valid obligations they must be within
the reasonably ancitipated revenues of the oounty for the
year in which they were issued. Otherwise, they would be
Hon. Pearce Johnson - Page   7 (v-801)




unconstitutional under Section 7 of Article XI, Consti-
tution of Texas. This section prohibits cities and
counties from incurrinS,a debt unless at the time of
the creation thereof provision is made for the levy and
collection of a sufficient tax to pay the same. Unless
scrip warrants are within the reasonably contemplated
revenues of the county, they would constitute debts
within the prohibition of Section 7, and, as no tax is
levied therefor, would be unconstitutional obligations.
See 11 Tex. Jur. 670 and authorities cited therein,

        Thus, Section 4 'of the act, if It is enacted,    I
would have the effect of validating the scrip warrants
as to non-constitutlona1 objections.   It could not vali-
date any scrip warrants which are unconstitutional.

        You ask whether the act accomplishes~ something
not already provided for in existing statutes.   1~ the
first place, as we have already pointed out, the act
contains a validation provision.  In the second place,
although validly issued scrip warrants may be funded
into bonds under Article 2368a, supa, 3ection7    of the
statute requires published notice of intention to issue
such bonds and authorizes the filing of a referendum
petition. Section 2 of the proposed act provides that
"no notice of lntentlon to issue such refunding bonds
shall be required~."


                             SUMMARY


         Proposed Senate Bill No. 87, a special road law
for Robertson County which authorizes the issuance of
bonds to refund certain scrip warrants of the county
without the necessity of a notice of intention to issue
such bonds, If enacted in the form~submitted to this
der‘artment, would beg constitutional.

        Section 4 of the act, which validates such scrip
warrants, would have the effect of curing objections to
Ron. Pearce Johnson - Page 8 (v-801)



the warrants which were not constitutional in nature,
but could not valUla%e my unconstitutional warrants.


                                  Very truly yours

                              ATTORREYGIENERALOFTEXA3


                              Bi b-t-$+w.      f+
                                   Oe ge W. Spar          w
                                              Assistant   -
m-s-8

                              APPROVED:
