               THE    ATTORSET       GENERAL
                         OF TEXAS


                          October 26, 1989




Honorable Edwin E. Powell, Jr. Opinion No. JM-1111
Coryell County Attorney
P. 0. Box 796                  Re: Obligation  of a commis-
113 South 7th                  sioners court to rent space
Gatesville, Texas 76528        outside the courthouse    for
                               the county surveyor (RQ-1720)

Dear   Mr. Powell:

     You ask about a county's obligation to pay for office
space for the county surveyor.       Specifically,  you ask
whether a county must pay for office space for the county
surveyor outside the county courthouse.       Your question
requires us to consider the continuing validity of Attorney
General Opinion   o-3229   (1941), which held that it is
entirely within the discretion of the commissioners court to
determine whether the county will provide office space for
the county surveyor.     See also Attorney  General  opinion
O-5685 (1943) (dealing with a county's responsibility     to
provide stationery for county surveyor).

     Attorney General Opinion  O-3229 (1941) considered the
effect of two conflicting statutes. One statute, which was
codified as article 5283, V.T.C.S., provided that a county
must provide office space for the county surveyor under
certain circumstances:

             A county surveyor shall be elected in each
          county at each general election for a term of
          two years. He shall reside in the county and
          keep his office at the courthouse     or some
          suitable building  at the county seat, the
          rent   therefor   to    be   paid    by     the
          commissioners' court on satisfactory    showing
          that the rent is reasonable,      the office
          necessary and that there is no available
          office at the courthouse.

V.T.C.S. art. 5283 (Vernon 1926); see also Law of Aug.   18,
1876, ch. 114, 1876 Tex. Gen. Laws 196; 8 H. Gammel, Laws of
Texas 1032 (1876) (original enactment). A later enacted
statute, which was codified as article 3899b, V.T.C.S., left


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Honorable Edwin E. Powell, Jr. - Page 2    (JM-1111)




it entirely to the discretion of commissioners courts to
determine whether the county would provide office space to
the county surveyor. Acts 1929, 41st Leg., ch. 207, at 448.
In Attorney  General Opinion O-3229 this office concluded
that the later enacted statute, article 389913, had impliedly
repealed  article   5283 and    therefore  that        county
commissioners court had discretion  to determine whether   to
provide office space to the county surveyor.  See also Tex .
Const. art. XVI, § 44; Local Gov't Code 5 291.001       (both
providing that the county surveyor "shall have an office at
the county seat").

     Both of the statutes considered in Attorney       General
Opinion O-3229 have been affected by the ongoing    statutory
revision process  provided for in section 323.007 of the
Government Code, which directs the legislative council to
plan and execute a program of nonsubstantive recodification.
See senerallv Collins, Continuino Statutorv Revision:    Where
Did the Civil Practices and Remedies Code Come From?,       50
Tex. B.J. 134 (1987).    The recodification   program is not
intended to alter the "sense, meaning,      or effect"   of a
statute. Gov't Code § 323.007.     Nonetheless, the process
has resulted in the express repeal and reenactment of former
article 5283, which this office had held to be impliedly
repealed, and the express repeal, without reenactment,      of
former article 389913. Those changes call into question    the
continuing validity of Attorney General Opinion O-3229.

     In 1977 the legislature  adopted the Natural Resources
Code. Acts 1977, 65th Leg., ch. 871, at 2345. In enacting
the code, the legislature     repealed article   5283,  the
provision the attorney general had held to be impliedly
repealed, and reenacted  it, in part, as section 23.016 of
the Natural Resources Code.    Id. at 2368.    That section
reads as follows:

        (a) The county surveyor's office shall be
        located in the courthouse or in a suitable
        building at the county seat.

        (b) Rent for an office outside the courthouse
        shall be paid by the commissioners court on
        showing that:

           (1) the rent is reasonable:

           (2) the office is necessary; and

           (3) an office    is not   available   at    the
           courthouse.




                               P. 5825
Honorable Edwin E. Powell, Jr. - Page 3        (JM-1111)




     A foreword to the proposed Natural Resources       Code
states that. the drafting   involved eliminating   impliedly
repealed provisions,    but does    not explain    how   the
legislative council determined whether a provision had been
impliedly repealed.1   Johnson, Foreward To Prooosed   Code:
Revisor's Reoort. November, 1976, Nat. Res. Code, at IX
(1978). In any case, despite their intention to eliminate
impliedly repealed    provisions,  the   drafters  did   not
eliminate former article 5283.

     By itself, the reenactment of former article 5283 would
not affect the holding of Attorney General Opinion   o-3229.
The enactment dates of specific statutes,   rather than the
dates on which they were reenacted and codified as part of
the program of nonsubstantive     recodification,  determine
which of two conflicting     statutes prevails.    Alexander
1,
Ranch Inc. v.                           733 S.W.2d 303, 308
(Tex. App. - Eastland    1987, writ ref'd n.r.e.),     cert.
denied, 108 S.Ct. 2005 (1988); accord State v. TaDlin,   247
A.2d 919 (Me. 1968).

     The legislature   complicated   matters,  however,  by
expressly repealing article 3899b when it adopted the Local



     1. The revisor's note to section 1.002 of the code
offers insight into the difficulty in determining whether a
particular provision had been impliedly repealed:

            With the adoption of the Administrative
        Procedure and Texas Register Act, a number of
        state  laws relating to state agency procedure
        were impliedly repealed.    In cases in which
        statutes assigned to this code for revision
        were obviously     repealed   by    that    Act,
        corrections have been made.       However,   the
        absence of court interpretations of the APA
        and the possibility   that many laws assigned
        to this code may require court consideration
        before a determination    can be made as to
        whether in fact they were repealed by the
        APA, those laws      have been revised       and
        included in this      code.    [Discussion    of
        provision insuring that APA provisions     would
        prevail over provisions reenacted in code.]

Nat. Res. Code 5 1.002   revisor’s     note (1978).




                                     p. 5826
Honorable Edwin E. Powell, Jr. - Page 4 (JM-1111)




Government Code in 1987.2 Acts 1987, 70th Leg., ch. 149, at
707.. The repeal of article 3899b by the enactment of the
Local Government  Code raises the question  of whether  the
provisions of former article 5283, now codified as section
23.016 of the Natural Resources Code, are again effective
even though both recodifications    were intended to     be
nonsubstantive.

     Section 23.106 is now the only statute -- either in the
codes or in the revised statutes -- dealing with a county's
obligation to provide office space for the county surveyor,
and it is unambiguous     on its face.     Current rules of
statutory construction   do allow courts to consider     the
legislative history of even an unambiguous statute.    Gov't
Code 8 311.023. In iv.B ant
722 S.W.2d 738, 740 (Tex. App. - Houston [14th Dist.]  1986,
no writ), the court held that a court may inquire into the
intent of a recodified statute that is clear on its face if
the legislature has stated that the recodification is not
intended to change the law and the recodification does in
fact make a substantive change. Comoare Ex carte Olden, 199
P.2d 228 (Okla. Crim. App. 1948) (inclusion of 1913 statute
impliedly repealed by 1915 statute in 1941 codification does
not validate   1913 law), with Atchlev v. Board of Barber
Examiners, 257 P.2d 302 (Okla. 1953)      (code is law even
though it may contain sections theretofore repealed).

     We do not think, however, that a court would consider
legislative history to be so significant that it would hold



     2. The revisor's note at the end of chapter 152 of the
Local Government   Code lists       number of    provisions,
including article 389913, that werz repealed as part of the
enactment of the Local Government Code.     The note states
that those provisions     were repealed because   they    are
ineffective or obsolete.

     3. The Texas legislature has provided that the repeal
of a repealing    statute   does not revive the      statute
originally repealed.  Gov't Code 55 311.030 (applicable to
codes), 312.007 (applicable to civil statutes).   This rule
was clearly intended to prevent revival of a statute by the
repeal of a statute expressly      repealing  the   original
statute. We do not think the rule necessarily       applies,
however, when the original statute was merely      impliedly
repealed -- particularly when no court ever determined  that
the original statute had in fact been impliedly repealed.




                              P. 5827
Honorable Edwin E. Powell, Jr. - Page 5 (JM-1111)




that a provision that has not been carried forward in any
form is still the law.    In Carbide Int'l v. State,  695
S.W.2d 653 (Tex. APP. - Austin 1985, no writ), the court
wrote:

           The codification process is a part of the
        Legislature's     larger    power   to     revise
        laws. . . . The purpose of the process         is
        not to change the substantive       law but to
        supply a convenience       by rearrangement    of
        separate statutes relating        to the     same
        subject, so as to achieve a complete          and
        uniform system of statutory law dealing with
        the subject.    Tex. Natural Resources       Code
        Ann.  5    1.001.     When    adopted   by    the
        Legislature in a constitutional manner,       the
        resulting Code as a whole constitutes a law
        in and of itself, and not a mere compilation
        of previous     statutes,    save   in   certain
        respects not material here. The Code becomes
        the statutorv law of the State resnectino the
        subiects to which it relates, suversedinq
        previous   statutes    omitted    therefrom
        revealed therebv. so that anvone subiect ::
        its vrovisions    mav look to the Code alone
        with safetv and confidence.        and   without
        resortina to the vrevious statutes exceot to
        exvlain   contradictions      and   ambisuities.
        (Emphasis added.)

a. at 656 n.3; see also American     Indem. Co.      v. Citv   of
Austin, 246 S.W. 1019, 1025 (Tex. 1922).

     We think that a court, if faced with the question you
present, would hold       that, whatever      happened   in    the
recodification process, section 23.106 now governs the issue
of a county's responsibility to pay for office space for the
county surveyor. Otherwise, counties would have to look to
an expressly   repealed statue in order to determine         their
responsibilities in regard    to  office  space  for the    county
surveyor. We conclude,      therefore, that Attorney      General
Opinion O-3229 is no longer    a  correct  statement of  the   law
and that a county    must  follow   the  provisions  of   section
23.016 of the Natural Resources Code in determining       whether
it must pay for office space outside the county courthouse
for the county surveyor.

     You state in your brief that the decision      of the
Coryell County Commissioners Court not to pay for office
space outside the county courthouse for the county surveyor




                                 P. 5828
Honorable Edwin E. Powell, Jr. - Page 6    (JM-1111)




was based on both the county's unlimited      discretion  to
determine whether  to provide office space for the county
surveyor, as well as a determination that the space was not
necessary.  Because Attorney General Opinion O-3229 iS    no
longer a correct statement of the law, the commissioners
court did not have unlimited   discretion in regard to the
provision of office space for the county surveyor.       If,
however, there was no showing that the office space outside
the courthouse was necessary, the commissioners court did
have authority,   under section     23.016 of the    Natural
Resources Code, to refuse to pay for office space for the
county surveyor.

                       SUMMARY

             A county must follow the standards   set
        in section 23.016 of the Natural Resources
        Code in determining whether to pay for office
        space outside the county courthouse for the
        county surveyor.




MARY KELLER
First Assistant Attorney General

MU MCCREARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Sarah Woelk
Assistant Attorney General




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