                                      ME            ENERAI,




Honorable Cecil M. Pruett               Opinion   No.   ,M-937
County Attorney
Hutchinson County Courthouse            Re:   Several questions        relating to con-
630 North Deahl                               struction of S. B.       885, Acts 62nd
Borger,   Texas 79007                         Legislature,     R. S.   , 1971, amend-
                                              ing Article    3268,     Vernon’s  Civil
                                              Statutes,   relating     to eminent do-
Dear Mr.    Pruett:                           main proceedings.

          In response to your request for an opinion concerning the construction
of S. B. 885 and its application to the statutory provisions   regulating the de-
posit of security pending the appeal of a condemnation    case, your questions
are restated and answered as follows:

           1.   Is the deposit provided for in Section 2 of Article
                3268*, before the amendment,      to be held, together
                with the award, itself exclusively   to secure all
                damages that may be adjudged against the plaintiff
                and therefore a portion of the deposit of money pro-
                vided for in Article  1, Section 17 of the Constitution?

           2.   Is the further sum of money provided for in Section
                2-a of Article 3268, as amended by S. B. 885, a por-
                tion of the deposit of money provided for in Article 1,
                Section 17 of the Constitution?

          It is our opinion that the deposit of the amount of the Commissioners’
Award   is sufficient to satisfy the Constitutional requirement  of the deposit of



* All references   to Articles   are to Vernon’s   Civil Statutes,  unless otherwise
indicated.  Section 1 of Article    3268 provides for a deposit of money subject
to the order of the condemnee in compliance       with the constitutional  requirement
of a monetary deposit,    and this section is not affected in the question posed.




                                    -4565-
Honorable     Cecil   M.   Pruett,   page 2          (M-937)




money provided for in Article  1, Section 17 of the Texas Constitution and that
any additional deposits that may be required are not required to be in money.
Section 2, S. B. 885, supra.

          The Texas Supreme Court in 1888 by way of dicta indicated that when
the condemnor pays into the court the amount of the Commissioners’   Award
the Constitution has been satisfied. Ackerman  v. Huff, 9 S. W. 236 (Tex. Sup.
1888.)

         Legislative      enactments   are presumed to be valid and doubts about
their constitutionality     should always be resolved in favor of constitutionality.
Duncan v. Gabler,       215 S. W. 2d 155 (Tex. Sup. 1948) and Imperial Irr. Co. v.
Jayne,  104 Tex. 395, 138S.W.         575(TexSup.    1911.)

          Another rule of construction   is that constitutional  provisions  are to be
construed in the light of the conditions existing at the time of the adoption.
Travelers’   Ins. Co. v. Marshall,    76 S. W. 2d 1007 (TextSup.    1934); Cramer
v. Sheppard,    167 S. W. 2d 147 (Tex. Sup. 1942. )

            Article 1, Section       17 of the Texas     Constitution   was adopted   in its
present    form in 1876.

                 “No person’s   property shall be taken, damaged,  or
            destroyed for or applied to public use without adequate
            compensation   being made, unless by the consent of such
            persons;  and when taken, except for the use of the State,
            such compensation    shall be first made, or secured by a
            deposit of money. ‘I

         Original Article 3268, Section 2, with the provision that an additional
amount “equal to the amount of the damages awarded by the Commissioners’
shall be deposited with the court, was not adopted until 1930.

             The Texas Supreme Court decision in Jones v.               Ross,   173 S. W. 2d
1022,     1024 (Tex. Sup. 1943) is directly in point.

            The Supreme      Court    stated:

                 “It is the settled law of this State that the provisions of
            our State Constitution mean what they meant when they were




                                                -4566-
Honorable        Cecil   M.   Pruett,   page 3      (M-937)




            promulgated   and adopted, and their meaning is not different
            at any subsequent time.    Constitutional  provisions  must be
            construed in the light of conditions existing at the time of a-
            doption, and it does not lie within the power of the legislature
            to change their meaning,   or to enact laws in conflict therewith.
            (Citing Travelers’  and Cramer)    . . . They therefore  cannot
            affect such cases one way or the other. ” (Emphasis      added. )

          It therefore follows that neither Article 3268, Section 2, nor its
amendment by S. B. 885 being enacted subsequent to the promulgation       and
adoption of Article   1, Section 17, would have any effect upon the constitu-
tional provision of deposit of money.

            Our opinion        is further   substantiated     from   a review   of the legislative
history of Article 3268 and its predecessor,    Article 4471.  See Thomas v.
Housing Authority of Dallas,   264 S. W. 2d 93 (Tex. Sup. 1953); Davidson v.
Texas & N. 0. R. Co.,   67 S. W. 1093 (Tex. Civ. App. 1902, no writ. )

            3.      Does the Constitution permit the Legislature    to pro-
                    vide that a bond be deposited in lieu of the deposit of
                    money as set out in Section 2-b of Article   3268, as
                    amended by S. B. 885?

          It is our opinion that since the additional deposit required                  by Section
2 of Article 3268, as amended by S. B. 885, does not need to be in                      money to
satisfy Article   1, Section 17 of the Texas Constitution,   it is within               the power
of the Legislature   to provide that a bond may be substituted in lieu                  of a mone’y
deposit to satisfy the requirements    of Article  3268, Section 2.

           The Legislature   in enacting eminent domain legislation    may not in any
manner lessen t+ absolute obligation of the condemning authority to compen-
sate the owner “in money. ” Buffalo Bayou, Brazes & Colorado Railroad Co.
v. Ferris,    26 Tex. 588, 589; City of San Antonio v. Astoria,     67 S. W. 2d 321,
322, aff. 96 S.W.Zd     783 (Tex.Comm.App.      1936), reh. den. 97 S.W.2d944.

            4.      Does the Constitution permit the Legislature  to provide
                    that the deposit of money as set out in the Constitution,
                    may be satisfied in part by a deposit of money and in part
                    by a bond?




                                                 -4567-
Honorable        Cecil   M.   Pruett,    page 4      (M-937)



         As we have previously      stated, only the amount of the Commissioners’
Award is necessary     to satisfy the Constitutional requirement  of deposit of
w,      and therefore,    any additional deposits enacted by the Legislature    may
take whatever form they decide upon.

         It does not, however,   follow that additional legislative   protection             for
condemnees   must also meet this constitutional    requirement    of “in money.             ”
City of San Antonio v. Astoria,   supra; Buffalo Bayou, Brazes & Colorado
Railroad Co. v. Ferris,   supra.

            5.      May the plaintiff, at this time exercise  an election to
                    substitute the bond provided for in Section 2-b of Ar-
                    ticle 3268, as amended by S. B. 885, and withdraw the
                    money deposited?

          It is our opinion that Article 3268, Section 2, as amended,   must be
interpreted as providing those condemning authorities     which have previously
deposited an additional amount of money equal to the Commissioners’       Award
under Section 2 of Article 3268, before amended,      an opportunity to make the
election contemplated    in S. B. 885.

            The Supreme Court in Deacon v. City of Euless,       405 S. W. 2d 58 (Tex.
Sup. 1966) stated that in determining      whether a statute is to be applied retro-
spectively,    the legislative intent is controlling.

          The Supreme Court in Martin v. Sheppard,         102 S. W. 2d 1036 (Tex.
Sup. 1937) decided that in construing a statute the entirety of the Act should
be considered    in ascertaining the intent of the Legislature,    including the
emergency    clause.

            Section      3 of S. B.     885,   the Emergency   Clause,   reads   in part:

                 ‘1. . . and that this Act shall take effect and be in
            force for all causes now pendingor       subsequently   filed
            after the date of its passage,   . . . ” (Emphasis    added. )

            The word “pending” means “undecided” or “undisposed   of. ” Hutchens
v.   Dresser,   196 S. W. 969, 971 (Tex. Civ.App. 1917, error dism.)




                                                  -4568-
Honorable         Cecil           M.    Pruett,     page 5      (M-937)




          The decision in the case of Texas Midland R. R. v.                               Southwestern
Telegraph   & Telephone Co.,   58 S.W.  152, 153 (Tex.Civ.App.                                1900, no
writ), is directly in point.

             The court                 concluded:

                     1,
                         that the statute applied to condemnation pro-
                          .   .    .


             ceedings pending at the time it went into effect, and that
             the telephone company was entitled to the benefits of the
             same. ”

             We will now consider                     and answer      together   your   sixth and ninth
questions.

             6.      Does this amendment of the Eminent Domain Statutes
                     supercede the provisions    contained in the County De-
                     pository Law in reference    to the deposit of Trust Funds
                     so that the plaintiff may require the deposit made under
                     Section 2-a of Article  3268 as amended, be deposited
                     in a bank which is not the County Depository     for Trust
                     Funds?

             9.      Does such provision    in Section 2b of Article 3268, as
                     amended by S. B. 885, supercede the provision       contained
                     in the County Depository    Law in reference   to Trust Funds
                     so that the interest on these funds should be paid to the
                     plaintiff rather than to the County?

           Article  3268, as amended by S. B. 885, supercedes    by implication
those   subsections  of Article 2558-2 applicable to Article 3268.

          The Supreme Court of Texas has consistently    held that a new en-
actment will by implication  repeal existing enactments  if there is a clear
and manifestly  indicated conflict.  See, for example,  State v. Easley,   404
S. W. 2d 296, 300 (Tex. Sup. 1966. )

           Whether or not there is conflict depends upon the legislative intent ac-
cording   to an early.SupremeCourt   decision in St. Louis S. W. Ry. Co. v. Kay,
85 Tex.    558, 22 S. W. 665, 666 (Tex.Sup.  1893.)




                                                             -4569-
HonorableCecil     M.   Pruett,   page 6         (M-937)



            The intent of the Legislature         in enacting   S. B.   885 is clear.

                 “The fact that there are many plaintiffs involved
            in condemnation   cases now pending in the courts of this
            State who have been compelled under existing law to
            dedicate large sums of working capital to such litigation
            prior to taking possession  of properties,  together with
            high interest rates now existing,  create an emergency
            . .   1,


          Thus, the legislative  intent of S. B. 885 would necessarily by im-
plication repeal the application of Section 9 of Article 2558-a to the deposit
of funds under Article 3268.

            The language   of S. B.   885,     page 2, makes      it quite clear   when it
specifies    that:

                  ‘1. . . The interest accruing from such account,      cer-
            tificate or security,   if any, shall be paid to the plaintiff. ”

It therefore would also necessarily repeal by implication that portion of Section
4a of Article 2558-a applicable to Article 3268, which specifies that the interest
earned shall go the county.

            7.   Should the plaintiff require the funds to be placed in
                 a bank which is not the County Depository    of Trust
                 Funds, may the Court require such bank to provide
                 a bond, or enter into a pledge contract,   similar to
                 that required of a County Depository   to protect the
                 funds, before the funds are delivered to such bank?

          There is no statutory authority in S. B. 885 nor in Article 2558-a di-
recting the Court to require a bond from a bank selected by the condemnor as
a depository for the deposit as required in Article 3268, Section 2.

         Nor can any legislative intent be gleaned from S. B. 885 directing the
Court to require “such bank to provide a bond, or enter into a pledge contract,
similar to that required of a County Depository  to protect the funds, before the
funds are delivered to such bank. ”




                                             -4570-
Honorable        Cecil   M.   Pruett,   page 7      (M-937)



          The nonexistence  of this intent can be inferred from the fact that
S. B. 885 contains no provisions   relating to a court requiring such bank to
deposit a bond or provide a pledge.     Red River Nat. Bank v. Ferguson,      109
Tex. 287, 206 S. W. 923 (Tex.Sup.      1918); Oden v. Gates,    119 Tex. 76, 24
S. W. 2d 381 (Tex. Comm. App. 1930); Freels v. Walker,        120 Tex. 291, 26
S. W. 2d 627 (Tex. Comm. App. 1930), reh. denied; Magnolia Petr. Co. v
Walker,   125 Tex. 430, 83 S. W. 2d 929 (TexSup.      1935. )

            8.      In the event the Court and Clerk is required by the
                    plaintiff to place the funds in a bank other than the
                    County Depository    for Trust Funds, and there is a
                    loss because of bank failure,   who should sustain the
                    loss: A, The Plaintiff;   B, The Defendant; C, The
                    Clerk; D, The Court; or E, The County?

          In the event that there is a bank failure the condemnor   should sustain
any loss.   Texarkana & Ft. S. Ry. Co. v. Brinkman,       288 S. W. 852 (Tex.Civ.
App. 1926), affirmed in 292 S. W. 860 (Tex. Comm. App. 1927) and City of
San Antonio v. Astoria,    supra.

         Under the provisions    of Article 3268, Section 2, as amended,    the
Court, the Clerk and the County are nothing more than conduits between the
condemnor and the bank.     The condemnee never has any right to the money
nor does he exercise   any control over the deposit.    On the other hand, the
condemnor   selects the bank and is entitled to all interest earned by the depos,it.
It would be only just that should there be any loss,   the condemnor   should bear
it.

                                        SUMMARY

                 Senate Bill 885, Acts 62nd Legislature,       R. S., 1971,
            as it amends Article 3268, V. C. S. , does not violate the
            constitutional   requirement   of deposit of money of Article
            1, Section 17 of the Texas Constitution.       Further,    it is our
            opinion that it was the intent of the Legislature      in enacting
            S. B. 885 to provide condemners       the full benefits thereunder
            at any stage of the litigation process     short of a final ad-
            judication.    Additionally,  S. B. 885 repeals those sections




                                                 -4571-
Honorable     Cecil   M.   Pruett,   page 8     (M-937)




            of Article  2558-a, V. C. S. , in their application to
            Article 3268, V. C. S. , as amended.      Finally,  should
            there be a bank failure involving a deposit under Ar-
            ticle 3268, the condemnor would bear the loss.




Prepared     by Ronald Edwin Tigner
Assistant    Attorney General

APPROVED:
OPINION COMMITTEE

Kerns Taylor,   Chairman
W. E. Allen,  Co-Chairman

W. 0. Shultz
R. V. Smith
Jerry Roberts
Sam McDaniel

MEADE F. GRIFFIN
Staff Legal Assistant

ALFRED    WALKER
Executive Assistant

NOLA WHITE
First Assistant




                                              -4572-
