.     .




    Honorable Zollie Steakley        Opinion No. ww-232
    Secretary of State
    Capitol Station                  Re:   Proper construction
    Austin, Texas                          and constitutionality
                                           of H. B. 11, Acts of
                                           55th Legislature,
                                           Regular Session, 1957,
                                           Chapter 420, page
                                           1259, which defines
                                           and regulates the
                                           business of giving
    Dear Nr. Steakley:                     bail.
           In your letter of July 29, 1957, you request an
    opinion of this office "concerning the proper construc-
    tion and constitutionality of House Bill No. 11, in
    view of the language 1 any county having within its
    boundaries a city with a population of three hundred
    fifty thousand (350,000) inhabitants.'"
           You olnt out in your letter that under Senate
    Bill No. 29z , Acts of the 55th Legislature, Regular
    Session, 1957, Chapter 269, page 575, effective August
    22, 1957, the Administrator of the Securities Division
    of the Secretary of State will be succeeded by the
    Securities Commissioner appointed by the newly created
    Securities Board, and thus the Securities Commissioner
    will be charged with the administration of House Bill
    No. 11, which likewise becomes effective on August 22,
    1957. Hence, it becomes Important for you to know in
    advance whether the provisions of House Bill No. 11
    are constitutional in order to effectuate a transition
    and in order to prepare forms and otherwise implement
    the law, if it Is valid.
             The caption of House Bill No. 11 recites that
    it Is:
                 'An Act defining and regulating the
                  business of giving ball In criminal
                  and quasi-criminal cases; providing
                  for the licensing of person, firms
                  and corporations who engage in that
                  business in any county having within
Hon. Zollle Steakley, Page 2,   (w-232)

            its boundaries a city with a popula-
            tion of three hundred and fifty
            thousand (350,000) Inhabitants accord-
            ing to the last preceding Federal
            Census; providing certain penalties;
            providing certain exemptions from
            this Act; providing for appeal from
            the decision of the Administrator
            of the Securities Division of the
            Office of the Secretary of State;
            providing for administration of
            this Act by the successor to the
            Administrator of the Securities
            Division of the Office of the Secre-
            tary of State; providing for lice?sing
            fees; and declaring an emergency.
       Section 1 of the Bill defines the business of
giving bail and exempts lawyers and certain surety
companies from the provisions of the Act.
       Section 2 declares that the business of giving
ball is a business affected with public interest,
and, as such, is subject to be regulated and controlled.
       Section 3 authorizes any Court, Judge, Justice
of the Peace or other officer or person authorized by
law to accept bail, to examine under oath any prospec-
tive bondsmen and to refuse to accept bond under
certain circumstances.
       Section 4 reads as follows:
           "Sec. 4. No person, firm or corpora-
            tion shall engage In the business of
            making ball within any county con-
            taining a city of three hundred and
            fifty thousand (350,000) inhabitants,
            as shown by the last preceding Federal
            Census, without having first been
            licensed thereto by the Administrator
            of the Securities Division of the
            Office of the Secretary of State; nor
            shall any person, firm, or corporation
            be permitted to engage in such business
            if such person or any member of such
            firm, or officer or director of such
            corporation shall have been convicted
            of any felony, or of any misdemeanor
            Involving moral turpitude, in this or
Hon. Zollie Steakley, Page       3, (w-232)

            any other   state,    or In any Federal
            Court. ‘I

       Section 5 empowers the Administrator of the Securi-
ties Dlvlsion of the Office of Secretary of State to
administer oath and examine witnesses, and to lnveeti-
gate anyone engaged In the business of "the making of
bail In this state."
       Section 6 reads in part as follows:
           "Sec. 6. Any applicant desiring to
            engage in the business of glvlng
            bail as defined in this Act, In any
            county having within its boundaries
            a city with a population of three
            hundred and fifty thousand (350,000)
            inhabitants according to the last
            preceding Federal Census, shall
            file with the Administrator of the
            Securities Division a sworn appli-
            cation for a license therefor, ...'
The remainder of this Section deals with the contents
of the application.
       Section 7 authorizes the Administrator to
collect license fees.
       Section 8 provides for the renewal of licenses.
Section 8a provides for the succession of the duties
of the Administrator to his successor in office or
any other person who may hereafter assume his duties.
       Section 9 authorizes the revocation or suspen-
sion of licenses by the Administrator for certain
causes, and sets up the proced'urefor such suspension
and revocation.
       Section 10 requires a bond of all licensees.
       Section 11 provides in part as follows:
           "Sec. 11. Any person, firm or corpora-
            tion or agent or employee thereof who
            shall willfully violate or fail or
            neglect to obey, observe or comply
            with any lawful order, permit, decision,
            demand or requirement of the Adminis-
            trator of the Securities Division under
Hon. Zollie Steakley, Page 4,   (W’+J-232)

            this Act as herein provided shall be
            guilty of a misdemeanor and upon con-
            viction therefor shall be sentenced
            to pay a fine of not more than Five
            Hundred Dollars ($500), or imprisonment
            in the county jail for not more than
            one (1) year, or both such fine and
            imprisonment."
Subdivision (a) under Section 11 makes it an offense
for any person coming within the purview of the Act
to solicit "the privilege of writing or making bond
for any person charged with any criminal or quasi-
criminal offense". Subdivision (b) makes It an
offense to recommend or suggest the name of an
attorney to such person.
       Section 12 provides as follows:
           "Sec. 12. If any Section, Subsection
            or requirement of this Act shall for
            any reason be adjudged to be uncon-
            stitutional, such adjudication shall
            not affect the validity of the remain-
            ing portions of said Act. The Legisla-
            ture hereby declares that it would
            have passed the Act and,each Section,
            Subsection and requirement thereof
            irrespective of the fact that any
            one or more Sections, Subsections
            or requirements be declared
            unconstitutional."
       Section 13provides as follows:
           "Sec. 13. No person, firm or  corpora-
            tion whose application for license
            to engage in making bail shall have
            been refused shall be eligible to
            make or renew such application for
            license for a period of one (1) year
            from the date of his or its prior
            rejection."
       Section 14 reads in part as follows:
           "Sec. 14. The fact that there is an
            unprecedented Increase In the number
            of forfeited recognizance and bail
            bonds In criminal cases and that there
.




    Hon. Zollie Steakley, Page 5,   (w-232)


                are
                . .no adequate
                          ^..   laws
                                   ..-regulating the
                ouslness or glvin  Dali,  creates an
                emergency. . . . $

           The language appearing in Sections 4 and 6 gives
    rise to the question, whether the Legislature InFended
    for those Sections of the Act to be effective only
    in counties having a city with exactly 350,000 inhabi-
    tants, or whether it intended the Act to be effective
    In all counties of the state having a city of 350,000
    inhabitants or more. According to the last Federal
    census there is no city in Texas with exactly 350,000
    inhabitants. We must assume the Legislature knew such
    fact. It has been said, "By well-settled rdles of
    law the Legislature, when it came to act upon this
    matter, was charged with knowled e of these facts
    particularly." State v. Hall, 7E S.W. 2d 880, 884
    (Civ. ADW. 1934, writ dism.) holding the Act authorizlna
    a code of fair competition for milk-industry in counties
    of more than 350,000 population to be unconstitutional
    under Section 56 of Article III of the Constitution of
    Texas.
           However, it is a maxim of statutory construction
    that a useless or ineffective Act will not be attributed
    to the Legislature where any reasonable interpretation
    may render the Act effective. The Legislature in this
    case is presumed to know that there ia no city in the
    State of Texas presently falling within the group of
    cities which have exactly 350,000 population. If we
    were to construe this Act as applying only to those
    counties containing a city which has exactly 350,000
    population, we would be making Ineffective the wh.ole
    of this Act for all practical purposes in view of
    the extreme unlikelihood of any city in Texas ever
    having a populatlon of exactly 350,000 according to
    any Federal census. If we were to hold that the
    Legislature Intended the Act to apply only to counties
    having within their boundaires a city of exactly
    350,000,the classification as a matter of law would
    be unreasonable and we would be compelled to delcare
    it unconstitutional as violative of Section 56 of
    Article III of the Texas Constitution, or as an un-
    reasonable exercise o,f the police power. Obviously,
    the Legl~slaturecould not have intended that the Act
    be construed In a manner which would render it
    unconstitutional.
           We think the Legislature intended this Act to
    apply to cities having a population of 350,000 --
                                                   or over
Hon. Zollle Steakley, Page 6,   (w-232)


and we so Interpret the provision set out In the first
paragraph of this opinion. We think that, viewing
the Act as a whole, It is not a stralned or unusual
Interpretation to hold as we do that the Act applies
to any county having within Its boundaries a city
with a population of 350,000 inhabitants or more.
       Having concluded that the segment Involved
includes those counties containing a city having a
population of 350,000 or over, the question arises
as to whether or not tFiI$m   is a local or special
bill within the meaning of Section 56 of Article III
of the Texas Constitution.
       Two cases concerning the regulation of trades
or professions by classifications according to popl~!-
lation have been considered by the Texas Courts. In
State v. Hall, supra, the Court considered a statute
authorizing a code of fair competition for milk
industries in counties of more than 350,000 popula-
tion. This statute was to be effective for two
years and the 350,000 population was to be determined
by the last preceding Federal census. The Court
held this statute unconstitutional as being a local
or special law regulating a-trade within the meaning
of Section 56 of Article III of the Texas Consltution.
This decision was based on the fact (1) Harris
County was the only county Included within the
classification adopted in the ;ictand (2) because
of the operation of the federal laws relating to
the decennial census, this county was the only one
which could ever enJoy or endure the provisions
of this law.
       The other case on the question is O'Brien
Amerman, 247 S.W. 270 (Tex. Sup. Ct. 19227xcern-
ing the statute enacted by the Legislature allowing
cities having a population of 100,000 or more,
situated on a navigable stream, owning and operating
municipal docks, wharves, or warehouses, to license,
appoint, and remove pilots on the waterway connecting
the city and the Gulf. The Court upheld this statute
as a valid exercise of the Legislative power, saying:
            "The articles are not confined, by
       the~lrtellns,to sny particuldr city or
       waterways. The law is Instead general.
       True it Is that the rights and powers
       granted by the articles are to be exercised
       only by officers of cities meeting these
    .




        Hon. Zollie Steakley, Page   7,   (WW-232)


              tests: First, having a population of 100,000
              or more; second, being situated along or
              upon a navigable stream in the state; and
              third, owning or operating municipal docks,
              wharves, or warehouses.  Though no other
              city except Houston meets these requirements
              at this time, the law Is applicable to any
              other city which may hereafter meet them.
              There is no foundation whatever for holding
              that the law was put in a general form merely
              to evade the Constitution. There .;resuch
              substantial grounds for the classification
              made that the articles would stand the test
              of the strictest rule applied in such an
              inquiry. The Legislature might reasonably
              conclude that the officials of a port city
              of 100,000 population or over, malntsining
              Its own docks, wharves, or wareho,&es,
              would have so special sn interest in safe-
              guarding and maintslniqg the port's com-
              mercial Interests, that the state could
              best intrust' to them such matters as to
              appoint, suspend, and remove pilots on
              the waterway connecting the city and the
              Gulf, and to make reasonable regulations
              pertaining to the pilots' services. It
              seems obvious thdt the number of pilots
              and the need of careful and s;rict super-
              vision of pilotage would incl>s&e with the
              size of the port and the extension of its
              terminal water transportation facilities.
              Classification of pilots according to port,
              population snd municiplilterminal facilities,
              having a reasonable basis and operating
              uniformly on those coming within the same
              class, violates no provision of the Consti-
              tution. . . .'
               We think the classification adopted by the Legis-
        lature In the Act under consideration cannot be said
        to be unreasonable as a matter of law under the holding
        of the O'Brien case. It would appear thcitthe evils
        accompanying the misuse of the making of bail bonds
        bears a real relation to the population of the metro-
        politan areas covered by the Legislature in this Act
        and that such population affords a fair basis for the
,       classification made. We think it may well be said
        that the problems sought to be remedied by the Leglsla-
        ture are proportionately more prevalent in the metro-
        politan areas of the state. In the absence of a
Hon. Zollle Steakley, Page 8,   (w-232)


clearly unreasonable classification, we conclude that
the Act Is a general law and does not come under the
prohlbltlons of Section 56 of Article III of the
Texas Constitution. O'Brien v. Amerman, supra.
       The remaining question Is whether the Act
constitutes a valid exercise of the police power
of the State. There cannot be much question but
that the regulation of an activity affecting the
administration of justice constitutes a valid
exercise of the police power of the State. If a
reasonable relation may be ascertained between
the classification adopted by the Legislature and
the problem or evil to be remedied, the statute is
not to fall merely because certain persons are
included or excluded in that classification.
San Antonio Retail Qrocers v. Lafferty, 297 S.W.
??d613 (Tex. Sup. rfi 'lTY(JD
       We have already concluded that the classifi-
cation adopted by the Legislature is reasonable and
appropriate to remedying th.eevils it purports to
remedy. Therefore, we x-e not able to say that
the classification does not bear a reasonable
relationship to the evils to be remedied. Unless
we are able to so concl.ude,we may not declare the
Act unconstitutional. See San Antonio Retail
Grocers v. Lafferty, supra.
       The exception in the case of licensed attor-
neys and surety companies regulated by the Board of
Insurance Commissioners or tne Banking Commission
would not affect the constitutionality of the Act,
since it merely exclirdesfrom its terms those who
are already regulated or licensed for the protection
of the public. Neither does the Act affect the
administration of justice in the Courts, since it
only restricts those persons who are in the business
of professional bondmaking. It does not affect the
right of a person to bond nor to the right of the
courts to release a person on bond.
       In summary we conclude that the Act applies
to any county with a city having a population of
350,000 inhabitants or more. Further, we do not
think that this Act violiitesthe provisions of
Section 56, Article III, concerning local or special
laws. Neither do we think the classification adopted
by the Legislature Is unreasonable when considered
In the light of the evils it seeks to remedy.
Hon. Zollle Steakley, Page 9,     (WW-232)


                          SUMMARY
              House Bill 11, Acts 55th Legislature,
              Regular Session, 1957, chapter 420,
              p. 1259 applies to counties having
              within their boundaries a city of
              350,000 or more inhabitants. This
              Act Is not unconstitutional because
              of the terms of Article III, Section
              56, Texas Constitution, and is not
              invalid as an unreasonable exercise
              of the police power of the State.
                              Very truly yours,
                                WILL WILSON




JHM:wam:jas
APPROVED:
OPINION COMMITTEE
H. Grady Chandler, Chm.
B. H. Timins, Jr.
Mary K. Wall
Roger I. Dally
W. R. Hemphill
REVIEWED FOR THE ATTORNEY GENERAL
BY: Geo. P. Blackburn
