                       E                 NEY        GENERAL
                                                  AS
                              Ausniu      aa.   TEXAS
  BVILL    WILSON
ATTONNEY     GENERAL

                                       January 24,      1962


       Honorable Bill Hollowell, Chairman
       Committee on State Affairs
       House of Representatives
       Austin, Texas                    Opinion No. WW-1248
                                                 Re:    Constitutionality of
                                                        House Bill 95 creating
                                                        the State Disaster
       Dear Mr. Hollowell:                              Council.
                 Your request for an opinion read.3as follows:
                      "House Bill 95 by Mace Stewart, et al,
                 has been referred to the State Affairs
                 Committee, House of Representatives. The
                 hearing on this bill will be set shortly.
                 Your official opinion is requested as to
                 the constitutionality of House Bill 95.
                      "The primary question is whether or not
                 Article 3, Sec. 51 of the Texas Constitution
                 provides sufficient authority for the State
                 to assume Its responsibility in cases of a
                 public calamity instead of relying entirely
                 on Federal Aid."
               Section 1 of House Bill 95 states the purpose of
       the Act as follows:
                      "Section 1. The State of Texas by this
                 Act, which may be cited as the 'State Responsi-
                 bility for Disaster Act,' declares itself fully
                 capable of resuming the State responsibility to
                 its citizens in cases of public calamity as en-
                 acted seventy-five (75) years ago in accordance
                 to the duty prescribed by the Constitution of
                 the State of Texas."
               Section 2 creates the State Disaster Council to
       consist of the Governor, Lieutenant Governor and the
       Attorney General and prescribes the duties of this Council
       which in substance is to determine whether any flood,
Honorable Bill Hollowell, page 2   (~~-1248)


drought, fire, hurricane, earthquake, storm or other
catastrophe in any part of Texas is of sufficient severity
and magnitude to constitute a public calamity and to pro-
vide state assistance to areas which are determined to be
public calamity areas.
        Section 6 creates a special fund to be knownas :the
Texas Disaster Fund and allocates a portion of tax moneys
to be credited to such fund and makes nrovlslons for its
use and investment.

        Section 8 is the severability clause and Section
9 again states the purpose of the Act as follows:
             "Sec. 9. The fact that during the last
       decade One Hundred Twenty Nine Million, Seven
       Hundred Thousand Dollars ($129,700,000) of
        'free' 100% Federal Aid has been expended to
       aid victims of public calamities in Texas with-
       out financial contribution by the State of Texas,
       whereas seventy-five (75) years ago the State
       of Texas without Federal aid fulfilled the
       responsibility in cases of public calamity
       laid down in Article III, Section 51 of the
       Constitution of the State of Texas; and the
       fact that State's Rights means State's respon-
       sibilities rather than blind obeisance to the
       Federal dole, creates an imperative public
       necessity that the Constitutional Rule requir-
       ing bills to be read on three several days in
       each house be suspended, and this Rule is here-
       by suspended, and that this Act take effect and
       be in force from and after its passage, and it
       is 30 enacted."
        Section
          .     51 of Article
                         .    III
                              -   of the
                                       _ Constitution of
Texas prohlblts tne granting OS any public moneys to any
individual, association or corporation except in those
cases of public calamity and specifically states:
            "The provision of this Section shall not
       be construed so as to prevent the granting of
       aid In cases of public calamities.
The test of "cases of public calamity" has been settled
in City of Aransas Pass v. Keeling, 112 Tex. 339, 247 S.W.
818 (1923) wherein the Supreme Court stated:
Honorable Bill Hollowell, page 3   (ww-1248)


             "The people of the state at large have
       a direct and vital interest In protecting the
       coast cities from the perils of violent storms.
       The destruction of ports, through which moves
       the commerce of the state, is a state-wide
       calamity. Hence sea walls and breakwaters on
       the Gulf coast, though of special benefit to
       particular communities must be regarded as
       promoting the general welfare and prosperity
       of the state. It is because of the special
       benefits to particular cities and counties
       that special burdens on property within their
       boundaries, through taxation are justified.
       Dut the state, in promoting the welfare, ad-
       vancement, Andyprosperity'of all her citizens,
       or in aiding to avert injury to her entire
       citizenship, cannot be regarded otherwise than
       as performing a proper function of state govern-
       ment. Cities or counties furnish convenient
       and appropriate agencies through which the
       state may perform duties resting on the state,
       in the performance of which the cities or
       counties have a special interest. The use
       of the cities or counties as agents of the
       state in the discharge of the state's duty is
       !.n no wise inhibited by the Constitution in
       s,ection51 of article 3.”
        Applying the foregoing test to House Bill 95, it is
noted that aid is to be granted to public calamity areas
when such calamity is caused by "any flood, drought, fire,
hurricane, earthquake, storm or other catastrophe of suffi-
cient severity and magnitude to constitute a public calamity,"
within the meaning of Section 51, Article III of the Consti-
tution of Texas.
        You are therefore advised that the provisions of
House Bill 95 as furnished with your request are constitu-
tional.

                        SUMMARY
             House Bill 95 of the Third Called Session
             of the 58th Legislature providing for the
             creation of a State Disaster Fund to be
Honorable Bill Hollowell, page 4    (WW-1248)


             expended for the purpose of granting
             aid to public calamity areas as defined
             in Section 51 of Article III of the Con-
             stitution of Texas is constitutional.
                             Very truly yours,
                              WILL WILSON
                              Attorney General of Texas




JR:mkh:zt                          Assistant

APPROVED:
OPINION COMMITTEE
Howard W. Mays, Chairman
Malcolm L. Quick
Dwain Erwin
Marvin Thomas
Elmer McVey
REVIEWED FOR THE ATTORNEY GENERAL
BY: Houghton Brownlee, Jr.
