                      July 6, 1951

Ron. Allen Iiarp~             Opinion Ro. v-1201
District Attorney
100th Judicial District      Re: Constitutionalityand
Childress,Texas.                 mandatory or dlscretion-
                                 ary character of Senate
                                 Bill 444, Acts 52nd .&eg-
                                 islature, authorizing
                                 appointment of a steno-
                                 grapherand provision of
                                 office space for the Ms-
                                 trict Attorney of the
                                 100th Judicial Mstrlct.
Dear Sir:
          Reference is made to your request in which you
ask the following questions:
          1. Is Senate Bill 444, Acts of the
     52nd Legislature,1951, constitutional?
          2. Are the prOViSiOnS Contained there-
     in mandatory or discretionaryon the part of
     the commlssioners~courts involved?
         The bill appears to be in proper form in every
respect. Section 1 of the bill provides:
         'The Mstrict Attorney of the 100th
    Judicial District of Texas is hereby au-
    thorized to appoint a stenographerwho shall
    receive a salary not to exceed Twenty-four
    Hundred Dollars ($2400) per annum. Said
    salary Shall be fixed and determinedby
    the District Attorney of said Judicial Dls-
    tricts, and the District Attorney shall
    file with the ComalsslonersCourt of each
    County in said District a statement speci-
    fying the amount of salary to be paid said
    stenographer. Said salary shall be pald
    monthly by the CommissionersCourt of each
    County comprisingsaid District in the man-
    ner and on the same pro ratio basis as that
Hon. Allen &rp,   page   2   (v-12Ol)




    contained in the order of the District
    Judge of such Districts for the payment
    of the salary of the off;cial shorthand
    reporter.
          "The CommissionersCourt of the County
     in which the District Attorney resides shall
     furnish the District Attorney with adequate
     office space and the supplies necessary to
     the efficient operation of said office."
         Section 56 of Article III, Constitutionof Tex-
as, provides In part:
          'The LsgislatUreshall not, except as
     Oth8rWiSe provided In this Constitution,pass
     any local or special law, . . .
          a. . .

          "Regulatingthe affairs of counties
     cities, towns, wards or school distrlctsf*
          It Is apparent that Senate Bill 444 falls with-
in the classlflcatlonof a local or special law. To be
invalid as such, it must come within the provisions of
Section 56 of Article III of the Constitutionof Texas




            Section 1 of Article V, Constitution of Texas,
prOVid8S:
          "The judicial power of this Stat8 shall
     be vested in one Supreme Court, in Courts of
     Civil Appeals, in a Court of Criminal Appeals,
     in District Courts, in County Courts, in Com-
     missioners Courts, In Courts of Justices of
     the Peace, and In such other courts as may be
     provided by law.
          *The Criminal District Court of Galveston
     and Harris Counties shall continuewith the
     district jurisdictionand organizationnow
     existing by law until otherwise provided by
     law.
Hon. Allen Harp, page 3   (V-1201)


          "The Legislaturemay establish such
     other courts as it may deem necessary and
     prescribe the jurisdictionand organization
     thereof, and may conform the jurisdiction
     of th8 district and other inferior courts
     thereto."
          The court, ln Jones v. Anderson, 189 S.W.2d 65
(Tex.Civ.ADD.1945. error ref.). upheld Article 52-161,
V.C.C.P., %eating7the office of Criminal District At--
torney for Bexar County. Among other things, the act
provided for the appointment of assistant district at-
torneys, investigators,and stenographers,and fixed
their salaries. The court stated:
          "SeCtiOn 1 of said Article 5 clearly
     authorizes the Legislature to enact just
     such a bill as House Bill 131, now known
     as Article 52-161, Vernon's Code of Crim-
     inal Procedure.
          ". . .

          "Appellantfurther complains that the
     Act violatesSectIons 56 and 57 of Article
     3 of our constitutionin that it attempts to
     regulate the affairs of a county by a local
     or special law. Ye overrule this contention;
     the first sentencerin S8Ctlon 56 reads as fol-
     lows: 'The L8glslature shall not, except as
     otherwise provided in this Constitution,pass
     any local or special law.! Section 1, Artl-
     cle 5, of the Constitutionauthorizes the
     ;;;ctF;tpof just such an act as Article 52-
           .      and Is therefore made an excep-
     tloi in thi'very first sentence of Sec. 56,
     Art. 3, of the Constitution. . . ." (189
     S W.2d at 66.)
          In Harris County v. Crooker, 224 S W. 792 (Tex.
Civ.App. 1920),,affirmed 112 Tex. 450, 248 S.W. 652(1923),
the court upheld an act, special in nature, vhlch changed
"the territorial limits of the criminal jurisdictlon$
district composed of Galveston ?nd Harris Counties 80 as
to include Harris County alone, and which provided for
the compensationof the "district attorney for said court."
In holding that th8 Legislaturederived its authority to
pass such an act from Section 1 of Articl8 V, the c0Ul-t
said:
Hon. Allen Harp, page 4   (V-1201)


          "We think ft should be held that, when
     the people by said section 1 of article 5
     SpeCifiCallyConferred upon the l8giSlature
     power to enact a speoial law creating and
     providing for the organizationof the court
     referred to, they intended the power to in-
     clude everythingnecessary or proper to be
     done to that end, and that one of the things
     necessary and proper to be done was to pro-'
     vide compensationfor those who were to con-
     stitute the court. Of course, If that was
     the intention of the makers of the Constitu-
     tion, they did not intend that the inhibition
     In section 56 of article 3 against spectal
     laws regulating the affz$rs of countfes should
     be applied to the case. (224 S.W. at 796.)
          The court, in Neal v. SheDDard, 209 S.W.2d 388
(T~x.c~v.A~~.1948, error ref ) upheld Article 199-124,
V.C.S., a special law for the'144thJudicial District,
composed of Gregg County. Among other things, the act
authorized the appointment of assistant district attor-
ney*, an investigator,and a stenographerfor the Crim-
inal District Attorney of the 124th Judicial District
and fixed the salaries to be paid to each.
          In view of the foregoing, it is our opinion that
Senate Bill 444, Acts 52nd Leg., 1951, does not violate
Section 56 of Article III, Constitutionof Texas, and there-
fore is constitutional.
          In 2 Sutherland,StaCiutory
                                   Construction (3rd Ed.
1943) 216,,it is stated:      8
          ‘Although In every case the legislative
     intent should control in determiningwhether
     a statute or some of its provisionsare manda-
     tory there are, nevertheless,certain forms
     and certain types of statutes which generally
     are consideredmandatory. Unless the context
     otherwise indicates the use of the word ‘shallt
     (except in its future tense) Indicates a man-
     datory Intent.‘I
          In Elms v. Glles, 173 s.W.28 264, 268 (T~x.CIV,.
App. 1943, error ref. w.0.m.) the court, in COnStruiIQan
act to determinewhether It was mandatory or permissive,
stated:
Hon. Allen Harp, page 5   (v-1201)


            ”    By the use of the word 'shall'
     in each of-the provisions above quoted, the
     Act makes it mandatory that such notices be
     given . . ."
          The word "shall" is used in Senate Bill 444 in
each Instance wherein the duties of the commissloners~
courts are prescribed. In view of the foregoing, it is
our opinion that Senate Bill 444, Acts 52nd Leg., 1951,
is mandatory in regard to the provisionsrelating to the
duties of the commlssloners'courts involved.
                      SDMMARY
          Senate Bill 444, Acts 52nd Leg., 1951,
     authorizingthe District Attorney of the
     100th Judicial District to appoint a steno-
     grapher, Is constitutional. The provisions
     of the act relating to the duties of the af-
     fected commissioners'courts are mandatory.
APPROVED:                            Yours very truly,
J. C. Davis, Jr.                       PRICE DARIEL
County Affairs Division              Attorney General
JeSS8 P. Luton, Jr.
Reviewing Assistant
Everett Hutchinson                   By fsi.zci&l&
Executive Assistant                        Assistant
Charles D. Matthews
First Assistant
