PRICE   DANIEL’            :~          fmust 8, .igW
-InmY    GENERAL
                                 _,.
          Hon. !i?oiiA..Graven
                             :' 0~ini.0.g    ~0~.V-332
          County Audit.or
          McLennan County    I I&:_ donstitutiona~ityof
          Waoo,vTexas                    H. B. ~6831,!jOthLeg+-
                                          lature, relative to
                                        .+al.srIes of assistant
                                          district attor?eys.
          Dear Sir:
                   :X0& request f0G.A op.&ii, from~this of-
          fice on the abo.ve:.subject
                                   mattepiIs as fo1low.s:
                      ‘. %he W.strict~Judgesi@i Con.m+saIon-
                    ers Court..ofMcLennax,Couuty.hav&approved,
                    appointments,sndset salpies of asaWx4nt
                    distribt attornegs.&naccordancewIt.hthe
                    provisions of ,Eou~~~BIll#683 of the.~sO$h
                    Legisliiture. I shall t@ank you to advise
                    n!e.asto.the.coqstitntI~nalIty,~ofthis law',
                                       ,.
                         "~.I&&:,&r&d.b~         me to the:%&-,
                    trict Attomxe$ of this county Concixq...
                    this question brought-the reply that.he. _...
                    would.prob&bly.beilIsq~llf~& to.pad on .-
                    the :@e.&Ioq by.r@dn"of the f&t ythatit...
                    Involves his office and he,asked that.,I..ad-
                    d3iessny Inquiry directly to'you."
            .,_.’ .-Hi B;.683; Acts~OP .the50$h.'Legislature,~
                                                             p.
          364, Veruou.'s‘TexasSession Law $!ervIce,reads Ih part
          a3 follows; ..:... ..::                     .
           .:             -.:
         .~.       '~.~Sect.~&
                             1.' 'rJlat.from.,tid
                                               after t&6      .'
            : pa&age of this Act, In a Judicial Dititirict~.I ~~-.
               comp~sed.,ofone,or more cow+tIes and:Iti~~ .'..
               which the population In auy one of saI&
               oounties.,as determ@ed @y..theladpreced-
              ,btg Federal Census,-18not le.ss$he+ seventy
               thousaW (7O,OOO)..and not more than two~,hun-
               dred and twenty thousand (220,000)inhabl-
               tax&s, and In.wh$ch,county~there exe two (2)
               or more District Courts the District Attdrney
              .,orthe Criminal District Attorney, with the
               oonsent of the Combined majority of the Dis-
               trict Judges and CommissionersCourt of such
172   Hon. Tom A. Craven - Page 2   (V-332)


          county, Is hereby authorizedto appoint
          at their dIscr&Ion, not more than six (6)
          Investigatorsor assistantswho shall re-
          ceive a salary of not more than Three Thous-
          and, Seven Hundred and Fifty Dollars ($3,750)
          per annum, nor'letisthan Three Thousand Dal-
          lars ($3,000)per anuum, the amount of such
          salary to'be fixed by the District Attorney
          or Criminal District Attorney end approved by
          a majority of the District Judges; such In-
          vestigatorsor assistants,&s well as the
          DIstrI&t Attorney or Criminal District Attor-
          ney shall be allowed a reasonable amount for
          expenses not to exceed SIX Hundred Dollars
          MOO),   each, per ennum. . . .
                 "Sec. 2. Said District Attorney and
           CrImIualDistrict Attorney shall also be au-
           thorized to appoint a stenographer.. .

               "Sec. 3. The salary of such InvestIga-
          tore OF assistantsand stenographer,and the
          expenses provided for In this Act shall be
          paid monthly by the CommissionersCourt of
          such'oountg.outof the General Fund of t@e
          oounty:or,.a$ the discretl6n of the Catis-
          sion&w Court, out of the Jury Fuud of.saId
          county; said Investigatorsor assistants may
          be.requIredto give bond and shall halieau-
          thopilty-tiderthe airection'ofthe,DIst&$ct,~
          Attorhey iX?'CrGiInal'DIst~Ict Attorn@ to
          make'arrests and execute process ‘In drIn&nal
          cagersand -inoabes growing out of the eti-
          forcement of all laws."
                Generally,the bill meets the constitutional
      reqnirementsof being limited to .onesubject which Is
      expressed In Its title, and of being sufficientlycer-
      ~talnand definite In Its terms. !Be bill, howeveri-1s.
      what is commonly referred to as a "bracket bill." 'We-'
      assume, therefore, that your specific @estIon Is wheth-
      er this bill violates Artlola III; Section 56, of the
      Texas Constitutionwhich reads In.part as follows:
                "The Legislatureshall not, except as
           otherwise.provIdedIn this Constitutioti,pass
           any local or special law, . . .
                "R~gulating'the'
                              affairs of coun$ies.....%
    Hon. Tom A. Craven - Page 3    (v-332)   " :f   '~.~~~' ..',f~'~~J



              ,"Creatingoffices, or ~pres'cribing
                                                the "
         power2 and duties of officers, in ooiuities
         . . .
                Ii.B. 683, Acts of the 50th Legislature, is
.,'..~,applioableto the following judicial districts:
 .I:':19th,28th,,30th, 34th, 41st, 53rd, 5&th, 56th, 5kFF'
    60th, 74th, 78th, 89th, 92nd, 93rd, 94th, 98th,'103&~
    107th, 117th and 126th. It affects the following coun-
    ties: Cameron, being within the 103rd and 107th judi-
    cial districts: El Paso, being withinthe 34thj 41st
    and 65th judicial districts; Galveston, beingwithin
    the 'lOth'snd:56thjudicial districts; HIdalgo/being
    within the 92nd and 93rd judicial districts; Jefferson,
    being within the 58th and~60th judicial distriots; Mc-
    Lennan, being within then19th, 54th and 74th judicial
    districts; Nueces, beingwithinthe     28th,.,
                                                94th and 117th
    judicial districts; Travis, beingwIthin the 53rd, 98th
    and 126th judicial districts; Wichita, being within the
    3Oth, 78th and 89th judicial districts. See Article
    199, v,.,c.s.
             ,,
               It is apparent that .H. B. 683; Acts of~the 50th
    Legislature, falls ,wIthin the classification of ,a local,
    or special law and would be Invalid if it is governed by
    the quoted provisions of Article III, SectIon.56; of the
    Constitution. See Fort ~Worth v. BobbItt;l21.Tex. 14,
    36 S.W. (26) 470, 41 S.W. (2d) 228;'Bexar Cou.nty,v.Tynan,
    1g8;Tex. '223,97 S.W. (26)                     ,P&so County,
    136 Tex.~'370,~#150 S.W. (26                    Wood, 137
    Tex. 201, 152 S.W. (26) ,lO

              However; it is our opinion that H. B. 683 Is not
    governed by Article III, Section 56, ,Texas Constitution,
    b&by   Article V, .Section 1, which reads as follows:
               "The judicial power of this State shall be
         vested in one Supreme,Court;in Courts of Civil
         Appeals, in a Court .of Criminal Appeals, in~Dis-
         trict Courts, in County Courts~,in Commissioners
         Courts,,.in CouHs~,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 continue with the dis-
         trict jurisdiction and organization now existing
         by law until otherwise provided by 'law.
              "The,Legislature may establish 'suchother
         co~urtsaspit may deem necessary and prescribe
         the jurisdiction~and organization thereof, and
Hon. Tom A. Craven - Page 4   ~(V-332)


     may .COnfOrmthe jurisdiction,ofthe District
     and other Inferior courts thereto."
          Haa'is County v. Croaker, 224 S.W. 792, affirmed
112 Tex. 450, 248 S.W. 652, upheld a statute, special In
character,which fixed the salary of the district attorney
of the orimInal district court of Harris County. We quote
from said ease the following:
         "The major Insistence of.plaintlffIn
     errorIs that the act of 1911, In so far as
    it fixed the compensationof the district at-
    torney at a different amount than that allowed
    by general laws to distriot attorneys of other
    counties of the same class as Harris County,
    Is a special and local law, regulating to that
    extent the affairs of Harris County, and there-
    fore void, because violative of section 56,
    art. 3, of the Constitutionof the state. . . .
          "It Is unnecessary to Inquire as to wheth-
    er or not the act creating the criminal district
    court of Harris County Is a local or special.
    law. The creation of this.courtrests upon the
    express and direct constitutlonalprovisi?on
    heretofore  quoted; that Is, that portionpf sec-
    tion 1 of article 5 which declares that the
    criminaldistrict court of ffalves,ton and Herr18
    coindies shall oontinue with the,district, juria-
    ~diotlon,and organicatlonexisting by law, uutil
    otherwiseprovided by law.
         "The criminal district court of Calveston
    and Harris counties then existed with a defined
    district and the jurisdictionset forth by stat-
    ute, and the orgsnizatlonconsisted of the dis-
    trict judge, the district attorney, and the dis-
    trict clerk. This constitutionalprovision ex-
    pressly continued the existenoe of that court
    and that organisation,until It was changed by
    law, and by language, which admits of no other
    Interpretation,authorized the Legislature to
    change the~di;trIct,the jurisdiction,and the
    organization.
          we quote the following from Garvey v. Matthews,
79 s.w. (28) 335, error refused:
          !'me act creating the court having been ex-
     pressly authorizedby the ConStitUtiOml Pro-
     visions last referred to, It Is uMecesserY to
   Eon. Tom A. Craven        - .P+ge 5 in;(V-332),,~:   :,   :.. ..,~.’



            consider whether~,theit;:act,was.looal..or
                                                   .
            special in character.within.the'oontem-
            plation of article 3; SS.56 and 57,'df..
                                                   'r
            the Constitution. '~Ha??Pis
                                     :county'vi
            Crooker, 112 Texi 450, 2:48,
                                       'S.W.652. "
                 "The powerrof~thel&slat&        to.fix
            the -salary'of:thejudge,.&this county.:i::
            cqurt at law'.is~an incident.toj'thepower:i:,.
            .to.create.the-,c+t,, 'andrestsupon the
            s~e..,cons,titutionalsutho,ritg;1:
                                             ..Therewas 1~1,:
            ample ~posrer
                        to 'fixthe 'SSlary ~'inl
                                               the:first].
            Instance; as ias done bysection ll‘cif'the
            Act .of 1927..:By .thesame -token..thereis
            the.power to amend :that s,ectiod,:'as.,was;.
                                                        _
            done by section 1 ofthe Act of 1933 '(Ver-"
       ._   non's~.Anp.
                      civ..
                          ,st.arlk.
                                  .J970-01,.Bll)...
                                                  :
 ..c
            ,paTPlScoul+v.      drooker, suprEL.v _.,             ".~
                                 .     _         _.

                Jones v. Anderson;'   '(Ci+.App.')189 $.W. (id)
   .65:,
  :-.   :error~re~s~~,~~~phe~d'.th~;special~la~      .sbolishing
   ,th+office of county attorneysof.,&s@r $+uty for .like
..~,~r.ea:sp~ii.~
              :.;,.     ::,!:: .. .,       :,:.+.:.: -, :.:.,..:.~..
                                                                '-,
    ,.,I,
        _:.,I ; : :                             '.c ,..:
                                                      ~.
   I.pi._,.".:I
             :1.
             in,..
              -;
               ,~J,ie::
                    4gt;.,~grsj;a~nre..'e~~~ted.  H.,B 1&j';,ij&h
    pro&ided'-for"ainni&l salaMes;“~payable’moh&~          of'offi-
    cial:courtreporters of..ea.ch,~strictpo~t,.civil*or
  :cri@nal,, and of each
    criminal,at
.~be fixiid&nd .apportibnedlsmqng..the.       sffected counties;..by
   the respective,j@ges.,of those..courts,        but exempt.ed.from
    the proqisio.ns.of,the~Act    Qe%ar and Tg?rant.:   counties.
    The.-Court: of:.CivilAppeals in the case.oP Tom Green Coun-
    ty:v..Proffltt.,..193;S.W. (2d).,8$5;     had .before~.it
                                                            .the
    question of whether..the.  provi,si~ons.   of:H..B.'555,;.
                                                            .*gth.
    Leg;,~Violated~AMicle III,Section 56~,.:of        the,.Texasicon-
    stitution.&We quote from~said case the follo,wing:~.,..
:
                "It may beconceded that under-the~hold-
 \.~ -ings in these cases I& B. '555falls within the
       .~.
         .pla.ssifica,tipn,bf~a,local Or special.lav,.and,
          -wouldbe .inva.lia .ifgit.is.governed by~the _:.  .,.~.
    : : .quoted,  provisions of Const. 'Art.III,,,    Sec.;56 '.
..,.
  ... :. . ..          j.~
                   "Whether'ti.  B: 555.is properlyciassified
            .:as:8 'locai. or special l&W is~ not;. imp+t-+t’,   :a
             since  it. 3.8 not -governedby.Const.    Art..III,';"
             Sec. 56, but bg,Art. V,:Se.c.,l,~',:......     .., _:'
      eon. Tom A. Craven - ~Page6   (V-332)
PYS

                %hi~~p~ovision has been construed as
           authorisinglocal or special laws affecting
           the functioningof the different courts
           throughoutthe state: . . .
                "In so far as H. B. 555 relates to dis-
           trict court reporters it deals with state
           employees. In so far as it relates to re-
           porters of county courts at law it provides
           as an incident for the functioningof courts
           which the Legislaturecreates under express
           authority of Art. V, Sec. 1. . . .
                "We hold H. B. 555 valid as against the
           urged ground of invalidity, . . .'                       .-,
                                                                    .:
                In view of the foregoing, it is our opinion
      that E.'B. 683 is not governed by Article III, Section        ,,~
      56 of our State Constitution..                                ..1
                Section 3 of H. B. 683 provides that the sala-      ,'~
      ry of the investigatorsor assistants and stenographer
      covered by the Act shall be paid out of ~theGeneral Fund      :I,
      of the county or, '"at the discretion of the Commission-      ,:
      'BPSCourt, out of.the Jury Fund of said county."
           '\
                Article VIII, Sections9, of our State Consti-
      tution; authorizesthe levy of a tsx "not exceeding fif-
      teeny(15) cents to pay jurors;"-  In construingArticle
      VIII;~Section9, ,theoourts have uniformly held that the
      provisionsof this Section of the Constitution nwere de-
      signed, not &rely to limit the tax rate for certain
      therein designatedpurposes,but to require that any and
      allmoney raised by taxation for any such purpose shall
      be applied, faithfully,to that particular purpose, as
      needed therefor, and not to any other purpose or use
      whatsoever." 'Carrollv. ~Williams,202 S.W, 504, 506.
      See also Ault v. Hill County, 102 Tex. 335, 116 S.X. 359..
                The Jury Fund of the county is a constitutional
      fund composed of tax money levied for 'thesole purpose
      of paying jurors. The Legislature is therefore prohiblt-
      ed by Article VIII, Section 9, from authorizing such tax
      levy to be used for any other purpose than "to pay jurors."
      Therefore, it is our opinion that the portion of Section
      3 of H. B. 683, Acts of the 50th Legislature, authorieing
      the Commissioners'Court to pay the salaries of the in-
      vestigatorsor assistantsand stenographerout of the Jury
      Fund is unconstitutionaland void.
    Hon. Tom A. Craven ~7.
                         Page 7 (V-332)                 ;1d’/


              The Act containsno "separability"or "sav-
    ing" 01aUs8. .Hoveverin the case,oftOhristo her v:
    City of'El.Paso,(Civ..App.)~98!S;U.(26).39{ it was
    held that the unconstitutionalprovision of &ticle
    1269h, V.C.:S.,dealing with nuuiicipklairports, which
    exempted cities from liability for injuries to per-
    sons caused by negligence of.theiroperating agents,
    did not render the entire Act.void.,'Wequote the
    following from said~case:
              "We do not'concur in the.contention
t        that the invalidity of .the exemption pro-
         vision, inthe absence'of a saving clause,
         renders the entire actunconstitutional.
         While it is true that the provision is in-
         cidental to the main purpose of the act,
        .yet It is capable.ofbeing separated from
         the act without materially affecting that
         main purpose."                  :.
              Since the ,unconstittitional
                                         provision in H. B.
    683~i.s'
           capable of being separated from the tactwithout
    materially affecting the main purp,ose,it Is our opinion
    that the remainder of H1 .B. 683'is.constitutionaland
    valid.;
                           SUMMARY
             'H. B. 683 (Acts .sOth,Leg.,1947).pro-
         vldl~ for compensation.of.,assistant dis-
      ~ .t.rictattorneys and.stenographersto,the
        district attorneyk? y;",'n :&unties, is
        .constitutional.            c. 1, Constitu-
         tion of Texas. The bct'ls notgoverned by
        Art. III, Sec. 56,~:prohibiting .theen&t-
        ment of special or local laws. Although
        .the provision of H. B. 683 authorizing the
         Commissioners'Court to.ptiythe salaries
         out of the Jtiy Fund iiolates~'ArticleVIII,
         Section 9, of the Texas Constitution,the
         remainder of the-'&t pro@Llmg .forpayment
         out.of the General Fund is valid.
                                     very truly SOUPS
    JR:djm                     '.ATTORREY GERERAL OF TEXAS
