                                                             OVERRULED BY AMENDMENT
                                                            TO ART. 1577
                                                            60th Legislature


                               August    31, 1953



Hon. J. M. Nuessle                      Opinion   No. S-93
County Attorney
Eastland County                         Re:   Constitutionality     of Article
Eastland, Texas                                1577, Vernon’s     Civil Stat-
                                              utes, as amended by 53rd
                                              Legislature,    relating to
                                              sale of unneeded right-of-
Dear   Mr.    Nuessle:                        way by county;

             Your request for our opinion as to the constitu-
tionality of a portion of Chapter 133, Acts of the 53rd Legis-
lature, 1953, amending Article   1577. Vernon’s  Civil Statutes.
reads in part as follows:

                 “The title to said act, as amended, con-
        tains, after the second semicolon,          the following:
         ‘providing   that where right-of-way        property    is
       .conveyed by the State to a county and the county
        decides to sell such property,       it shall be sold
        with certain priorities      of purchase;‘.      The third
        sentence of the act itself, as amended, contains
        the following:     ‘Provided,   however,     that where
        abandoned right-of-way        property is no longer
        needed for highway or road purposes             and the
        county decides to sell said right-of-way           proper-
        ty, it shall be sold with the following        priorities:
        (1) to abutting or adjoining landowners;           (2) to
        the original    grantors,  his heirs or assigns        of the
        original tract from whence said right-of-way               was
        conveyed;     or (3) at public auction as provided
        above.’     My specific inquiry is whether quoted
        portion of the act is valid and constitutional.”

                Section 35 of Article     III, Constitution    of Texas,
provides     as follows:
             ‘No bill . . . shall contain more than one
      subject, which shall be expressed       in its title.
      But if any subject shall be embraced        in an act,
      which shall not be expressed      in the title, such
      act shall be void only as to so much thereof,
      as shall not be so expressed.”

              It will be observed< that Chapter 133 was passed
as an amendment of Article       1577. Prior to the amendment
there ‘was no reference     in said’article   to priorities in the
sale of real estate by counties.       The caption of said amenda-
tory act in regard to such priorities       reads as follows:    ‘pro-
                       .
viding, that where right-of-way      property is conveyed by the
State. to a county . .’.‘it shall be sold with certain priorities
of purchase.”     (Emphasis    added.)

              The provisions  contained in the body of the amend-
ment in regard to priorities   of sale would apply to all aban-
doned ‘right-of-way~ property no’longer needed for highway or
road purposes.     Therefore, such provisions  purport to apply’
to county roads as well as highways, without regard to the
source of title.

               As a general rule when the title or caption of an
,act is misleading   or is too restrictive   to cover the body of
the act, those portions of the act not embraced       in the title are
void. War’d ‘Cattle & Pasture      Co. v. Carpenter,   109 Tex. 104,
200 S.W. 52.1 (1918);    Gulf Production    Co. v. Garrett,  199 Tex.
 72, 24 S;W.Zd 389 (1930); Walker v. State, 134 Tex. Grim. 500.
 116 S.W.2d 1076 (1938).     It therefore  follows that the caption
restricts   the body of the act’to property conveyed by the State
to a county.

             It appears, however, that the invalid portion of
the proviso can be discarded    and the remaining   portion deal-
ing with abandoned highway’ right-of-way    property c,onveyed by
the State to a county is valid.  As said in Empire ‘Gas 81Fuel
Co. v. State, 121 Tex. 138, 165, 47 S.W.Zd 265 (1932).      “It is
also clear, gener’ally speaking, that where a statute’contains     .
provisions  which are legal and others which are not, effect
may be given to the legal provisions    by separating  them
from the illegal.”  In the instant act the valid provisions
are separable   and not dependent on the invalid provisions.

              In construing the priority provisions     of the
amend,atory act your attention is caqed. to Article       6673a,
V.C.S., which provides     an exclusive method to bs followed
by the Highway Commission.in        disposing of abandoned high-
way right-of-way.     Such statute and the valid portion of the
priority  provision  of the amendatory     act here involved
should be construed together and the priority       provision   of
Article  1577 could apply only to ab<ndoned highway right-
of-way Conveyed by the State to counties in accordance
with the provisions    of Article 6673a. as amended by Chap-
ter 323, Acts of the 53rd Legislature,,     1953.

                             SUMMARY

               That part of Chapter 133, Acts of the
        53rd Lrgislsture,    1953, (Art. 1577, V.&S..)
        which grants priorities    of purchase to cer-
        tain persons to purchase     real e&ate sold by
        a county is invalid insofar as it purports     to
        cover any real estate other than abandoned
        highway right-of-way    conveyed by the State
        to a county.   Section 35, Article  III of the
        Constitution  of Texas.

APPROVED:                             Yours   very truly,

J. C. Davis, Jr.                  JOHN BEN      SHEPPERD
County Affairs   Division           Attorney    General

Mary K. Wall
Reviewer
                                 BY
Burnell Waldrep
Executive Assietant

John Ben Shepperd
Attorney General

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