Honorable R. Ii.Cory                 Opinion NO. M-28
Chairman
State Affairs Committee              Re:   Whether H.B. No. 12
House of Representatives                   of the 60th Legislature
Austin, Texas                              can be made retroactive
                                           and related questions.

Dear Representative Cory:

          You have requested an opinion of this office on
the following questions concerning H.B. No. 12:

          "1) Can the provisions of this bill be
     made retroactive to the date of the last general
     election at which a constitutional amendment on
     this subject was adopted so that payments can be
     made under the terms thereof to widows and children
     of officers killed in the line of duty since the
     date of said general election?

          "2) Would an amendment including volunteer
     firemen under the terms of this bill be constitu-
     tional?

          "3) Would an amendment including custodial
     employees of the state institutions in charge of
     the criminally insane under the terms of this bill
     be constitutional?"

          House Bill No. 12 of the 60th Legislature, Regular
Session, is a direct response to the recent addition to the
Texas Constitution of Section 51-d, Article III, Constitution
of the State of Texas, which was adopted at the last general
election. This amendment reads as follows:

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Hon. R. xi.Gory, page 2 W-28)



          "The Legislature shall have the power, by
     general law, to provide for the payment of assist-
     ance by the State of Texas to the surviving spouse
     and minor children of law enforcement officers,
     custodial personnel of the Texas Department of
     Corrections or of full-paid firemen who suffer
     violent death in the course of the performance
     of their duties as law enforcement officers,
     custodial personnel of the Texas Department of
     Corrections or as full-paid firemen."

          In the absence of the above constitutional amend-
ment, any such payment would be a violation of Section 51,
Article III of the Constitution of the State of Texas which
reads in part:

           "The Legislature shall have no power to
      make any grant or authorize the making of any
      grant of public moneys to any individual, as-
      sociation of individuals, municipal or other
      corporations whatsoever: . . . .'I

           Consequently, since the amendment provides only for
 full-paid firemen, volunteer firemen do not qualify under
 Section 51-d and any payment of assistance by the state to
 surviving spouse and minor children would be unconstitutional.

            Similarly, Article 46.02, Vernon's Code of Criminal
  Procedure, provides for the commitment of any person charged
1 with a criminal offense and found insane at the time of trial
  to a state mental hospital.

           Article 5547-202, Vernon's Civil Statutes, creates
 the Texas Department of Mental Health and Mental Retardation.
 Section 2.09 of that act sets out the powers and duties of
 deputy commissioners. Among these are:

           " b)  Subject to the direction and super-
      vision of the Commissioner, the Deputy Commis-
      sioner for Mental Health Services.,hasprimary
      responsibility for:
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Hon. R. H. Gory, page 3 (M-28)



          "(1) administration of the state mental
     hospitals."

          Since the state institutions in charge of the crimi-
nally insane are the mental hospitals, and the mental hospitals
are under the control and supervision of the Texas Department
of Mental Health and Mental Retardation rather than the Texas
Department of Corrections, any payment to surviving spouse and
minor children of custodial employees of these institutions
would likewise be unconstitutional.

          You have asked if the proposed bill which provides
for the payment of assistance by the State of Texas to the sur-
viving spouse of minor children of law enforcement officers,
full-time firemen, and custodial personnel of the Texas Depart-
ment of Corrections, who suffer violent death in the course of
the performance of their official duties as such, may be made
applicable to surviving spouse and minor children of officers
killed in the line of duty since the date of the general election
and before the effective date of the proposed bill.

          Section 51-d provides in part: "The Legislature shall
have the power, by general law, to provide for the payment of
assistance. . . .I' In a similar case, State v. Clements, 319
S.W.2d 450 (Tex.Civ.App. 1958, error ref.), the court construed
Section 51-c, Article III, Constitution of Texas. That section
reads:

          "The Legislature may grant aid and compen-
     sation to any person who has heretofore paid a
     fine or served a sentence in prison, or who may
     hereafter pay a fine or serve a sentence in prison,
     under the laws of this State for an offense for
     which he or she is not guilty, under such regula-
     tions and limitations as the Legislature may deem
     expedient."

           The court stated that words in a constitutional amend-
 ment must be "given their natural, obvious, and ordinary mean-
 ings as they are understood by citizens who adopted the amend-
 ment." After analyzing Section 51-c‘ the court held:

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Hon. R. H. Gory, Page 4 W-28)



          II
               . From the section and article of the
                   .   .


     Constitution amended as well as the language used,
     no present right to aid and compensation is con-
     ferred upon the class of persons named independent
     of or without reference to the additional power
     at the same time vested in the Legislature. The
     right to receive aid and compensation is contingent
     upon action by the Legislature. . . .

          "The recitation of the objective and the
     powers conferred and rights created by the amend-
     ment make it obvious that the amendment is not
     self-executing. . . .I'

          Consequently, it is the opinion of this office that
Section 51-d, Article III, Texas Constitution, is not self-
executing. Therefore, no right to receive payment was conferred
by it upon the individuals of the class named and whatever pay-
ments are to be made are dependent upon legislation enacted pur-
suant to Section 51-d.

          House Bill 12 may not be made retroactive to include
persons in the class named between the passage of Section 51-d‘
Article III, Texas Constitution, and the effective date of House
Bill 12. Section 16, Article III, Texas Constitution, provides:

          "No bill of attainder, ex post facto law,
     retroactive law, or any law impairing the obli-
     gation of contracts, shall be made."

          The court in Turbeville v. Gowdy, 272 S.W. 559 (Tex.
Civ.App. 1925, no writ hist.) defined a retroactive law as
follows:

          "A retroactive law, in   the sense of the
     constitution, and in so far   as is here appli-
     cable, which prohibits such   acts, is one made
     that affects acts or rights   accruing before it
     came into force. A statute    is retroactive
     which takes away or impairs   vested rights ac-
     quired under existing laws,   or creates a new
                            - 119-
Hon. R. H. Cozy, Page 5 (M-28)



     oblisation. imposes a new dutv. or adoW  ~a
     new disabilitv in respect to transactions or
     considerations already passed,,, (Emphasis
     added.)

          In Slate v. City of Ft. Worth, 193 S.W. 1143 (Tex.
Civ.App. 1917, no writ hist.), the court in considering a
statute which provided for a recovery for wrongful death
against a municipal corporation held:

           "The cause of action which now exists
     against a municipal corporation by virtue of
     amended article 4694 arises exclusively by
     virtue of this statute. A right of action to
     recover damages on account of injuries causing
     death did not exist under the common law.

          "If it should be held that amended arti-
     cle 4694 gives to plaintiffs the right to re-
     cover damages on account of the injuries in-
     flicted previous to the amendment, such hold-
     ing would clearly impose a new obligation upon
     defendant and attach a new liability in respect
     to a past transaction. To such extent the
     statute would be retroactive and invalid. Sec-
     tion 16, art. 1, Constitution of Texas. But
     it is insisted that the statute is remedial,
     and as such may be retroactive without con-
     flicting with the constitutional provision.
     In this connection our views are most aptly
     expressed in Hamilton County v. Rosche, 50
     Ohio St. 103, 33 N.E. 408, 19 L.R.A. 584, 40
     Am. St. Rep. 653, where this language is used:

          "'This statute, it is contended, is re-
     medial, and remedial statutes may be retro-
     active. It is remedial, no doubt, in that
     enlarged sense of that term, where it is
     employed to designate laws made to supply
     defects in, or pare away hardships of, the
     common law, but not remedial in the sense

                            -120-
Hon. R. H. Gory, Page 6 (M-28)



     of providing a more appropriate remedy than
     the law before afforded, to enforce an existing
     right or obligation. The statute under consid-
     eration provided no new method of procedure:
     it simply imposed upon Hamilton county an obliga-
     tion towards these plaintiffs in error that did
     not attach to the transaction when it occurred.
     In attempting to accomplish this result the
     Legislature transcended its constitutional
     powers.'"

          Consequently, it is the opinion of this office that
if House Bill No. 12 is made retroactive to the date Section
51-d, Article III, Texas Constitution, was passed, it will be
unconstitutional as a retroactive law. Section 16 of Article I,
Texas Constitution. Furthermore, since Section 51-d was not
self-executing and no right to payment exists at the present
time, any attempt to make House Bill 12 retroactive to the time
Section 51-d was passed, would also be unconstitutional as a
violation of Section 51, Article III, Texas Constitution.

                         SUMMARY

          House Bill No. 12. of the 60th Legislature,
     may not include volunteer firemen or custodial
     employees of the state institutions in charge
     of the criminally insane, since individuals in
     these classes are not included in Section 51-d,
     Article III, Texas Constitution.

          House Bill No. 12 may not be made retro-
     active to the date Section 51-d, Article III,
     Texas Constitution, was passed. Since the amend-
     ment is not self-executing, any attempt by the
     Legislature to make House Bill No. 12 retroactive
     would be unconstitutional as a violation of Sec-
     tion 16, Article I, and Section 51, Article III,
     Texas Constitution.

                                        truly yours,
Hon. R. H. Cory. page 7 (M-28)



Prepared by Wade Anderson
Assistant Attorney General
WA:sck:ra

APPROVED:
OPINION COMMITTEE

Hawthorne Phillips, Chairman
W. V. Geppert, Co-Chairman
Malcolm Quick
Dyer Moore
John Reeves
Alan Minter

STAFF LEGAL ASSISTANT
A. J. Carubbi, Jr.




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