Honorable J. E. Winfree                          Opinion No. WW-100
State Representative,
House of Representatives,                        Re:   Whether or not House Bill
Capitol  Building,                                     No. 708, 55th Legislature,
Austin, Texas                                            1957 in Section 3 and
                                                       Section 4 thereof prescribes
                                                        rules of procedure    in Civil
                                                       Actions conflicting with the
                                                        rule-making    power of the
                                                       Supreme Court of Texas in
                                                       civil actions as delegated
                                                        to it by the Legislature
                                                       and whether or not said
                                                        Bill is special legislation
                                                        in view of the limitation
                                                       provisions    contained in
Dear Mr.   Winfree:                                     Section 7.

             Your letter of April 10, 1957 in substance requests an
opinion on H. B. 708, 4cts of the 55th Legislature,     1957, as to
whether or not Section 3 and Section 4, thereof promulgates      rules
for practice in the trial of civil cases and, if so, what effect does
this have on the rule-making    power in c tvil proteedings~ vested in
the Supreme Court of Texas by the Legislature.

            You have asked     two questions:

            1.   Does Section 3 and Section 4 provide or make
                 rules of practice for the trial of civil cases?
                 If so, what will be the ultimate effect of this
                 on our rules of practice in civil cases,   inas-
                 much as our statutes now provide rule-making
                 power to be in the Supreme Court of Texas?

            2.   Whether or not the Bill is in the nature of
                 special legislation because of its limited
                 application as provided in Section 7 thereof.

            Article   V, Section   25,   Texas    Constitution   provides:

                       “‘The Supreme Court shall have the power to
                 make and establish   rules of procedure not incon-
                 sistent with the laws of the State for the government
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Honorable   J. E. Winfree,   Page 2 (WW-100)




                of said court and the other courts of this State
                to expedite the dispatch of business therein.”

            The following language is contained in Bar Association
of Dallas, et al. vs. Hexter Title and Abstract Company (Tex. Civ.
App. 1943, 175 S.W. 2d, 108, affirmed 142 Tex. 506, 179 S.W. 2d 946:

                      “Early     in the history of the State of Texas
                it was generally recognized        and conceded that
                the right to prescribe       rules of practice and
                procedure    in this State rested in its law making
                bodies, and our statutes reflect the fact that the
                legislature    from time to time relinquished      to the
                Supreme Court the right to make certain rules
                only.   This state of affairs continued until the
                46th Legislature,       in the year 1939, passed H.B.
                108, V.A.C.S.,      Article 1731a, which evidenced
                the will of the law making body of Texas to
                relinquish the rule making power to the Supreme
                Court.”

            Article   1731a V.A.C.S.   reads   in part as follows:

                      “Section 1. In order to confer upon and
                relinquish to the Supreme Court of the State
                of Texas full rule making power in civil judicial
                proceedings,   all laws and parts of laws govern-
                ing the practice and procedure    in civil actions
                are hereby repealed,    such repeal to be effective
                on and after September 1, 1941. Providing,      how-
                ever, that no substantive law or part thereof is
                hereby repealed.

                      “Section 2. The Supreme C,ourt is Hereby
                invested wtth the full rule making power in the
              ~’~prtactice and proce~dure in civil kctions, Such
                rules shall not abridge, enlarge or modify the
                substantive   rights of any litigant. . .”

             It is held in Gonzales v. Rodriguez,    Tex. Civ. App. 1952,
250 S.W. 2d 253, rehearing     denied, that under Tex. R.C.P.   Rule 2,
rules of civil procedure are not to be applied only to civil suits, but
are to be applied in all actions of a civil nature; consequently,   the
rules apply to all proceedings    of a civil nature and exclude only
criminal  cases.
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Honorable   J. E. Winfree,   Page   3 (WW-100).




            Under this Article,      givtng Supreme Court rule-making
powers, Supreme Court was invested with complete authority to
prescribe  all rulessof    procedure    in all civil actions, and it was
intended thxall    statutes relating to-i1       procedure    should be fnoper-
ative on and after September      1, 1941, including those passed at the
same session of the Legislature.         Garrett v. Mercantile    Nat. BInk
at Dallas, 140 Tex. 394, 168 S.W. 2d 636 (1943).

             Secttons   3 and 4 of this Bill are as follows:

                      “Section 3. Every person who commences
                or prosecutes   or assists  in the commencement
                or prosecution   of any proceeding    in any court
                or before any administrative     agency ,in the State of
                Texas, or who may take an appeal from any such rule,
                order, or judgment thereof, shall, on motion made
                by any of the parties of such proceedings,~ or by the
                court or agency in which such proceeding       is pending,
                file with such court or agency, as a condition prece-
                dent to the further prosecution    of such proceeding,
                the following affidavit:

                      ” ‘I, name)     petitioner (or complainant,
                plaintiff, appe
                            Li    lant or whatever party he may be)
                in this ‘matter, do hereby swear (or affirm) that
                I have neither received,      nor conspired to receive,
                any valuable consideration       or assistance  whatever
                as an inducement to the commencement           or further
                prosecution    of the proceedings    in this matter.

                                        (signature of Affiant)
                                              Aft tant
                        ‘Sworn to and subscribed    before meson this,
                the (date) day of (month), 19 (year)

                                            (Signature of Official)
                                            (Title of Official)’

                      “‘In the case of any firm, corporation,   group,
                organization,    or association required to make the
                above affidavit, such affidavit shall be made by the
                person having custody and control of the books and
                records    of such firm, corporation,   group, organi-
                zation, or association.
Honorable   J. E. Winfree,      Page 4 (WW-100).



                     “Section 4. Every attorney representing
                               -.                .
                any person, firm, partnership,        corporation,   group,
                organization,     or association   in any proceeding    in
                an court or before any administrattve          agency in
                *          of Texas, or who may take an appeal
                fromany    rule, order, or judgment thereof, shall,
                on motion made by any of the parties to such pro-
                ceeding, or by the court or agency in which such
                proceeding    is pending, file, and as condition prece-
                dent to the further prosecution       of such proceeding,
                the following affidavit:

                      ” ’ I, {name), attorney representing        (name of
                party), petttioner (or complainant,      plaintiff, appel-
                lant, or whatever party he may be) in this matter,
                do hereby swear (or affirm) that neither I nor, to
                the best of my knowledge and belief, any other
                person, firm, partnership,      corporation,    group, organ-
                ization, or association    has promised,     given or offered,
                or conspired to promise,      give, or offer, or solicited,
                received,    or accepted any valuable consideration        or
                any assistance     whatever to said name of party as
                an inducement to said (name of party)          to the corn-
                mencement      or further prosecution    of the proceedings
                herein.

                                             (Signature of Affiant)
                                                     Aff tant

                           ‘Sworn to and subscribed   before   me on this,    the
                (date)    day of (month) , 19 (year).

                                              (Signature of Official)
                                               (Title of Official)’

                      “Provided,  however, that if, on motion made,
                such affidavits are promptly filed, the failure in the
                first instance to have filed same shall not constitute
                grounds for a continuance of such proceedings.”

            Section      7 provides:

                     “The provisions    of this Act shall not be appli-
                cable to attorneys who are parties to contingent fee
                contracts with their clients where the attorney does
                not pay or protect the client from payment of the
                costs and expense of litigation, nor shall this 4ct
                apply to suits pertaining to or affecting possession
                of or title to real or personal property,   including
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    Honorable   J. E. Winfree,   Page 5 (WW-100).




                    personal injury or death clatns’,      nor shall this Act
                    apply t,o suite: invoking  the ,legality of assessment    or
                    collection  of tane.s, nor shall tbls Act apply to suits
                    involving rates or charges by conimon carriers         of
                    public utilities, nor shall this’ Act apply to criminal
                    prosecutions.”

             Sections 3 and ,4’of this Bill prov.fde for the filing of affidavits
in connection with court and administrattve       agency proceedings.     This,
in effect, prescribes   a rule for practice and procedure     ln law suits and
thereby conflicts with the ,vieW that~ all rule-making     power is vested in
the Supreme Court as delegated to it by the Legislature.         The rule-
maktng power in civil judicial proceedings       Is given to the Supreme
Court concerning    practice,and   procedure.    It seems that, from the
authorities  cited, it was the intention of the Legislature    to give all
such powers to the Suprem~e Court.       This is  evident from   particle
1731a. The Legislature,     however, may amend or repeal this law at
any time and make such changes as it deems expedient.           We hold
Sections 3 and 4 of said Bill to conflict with the rule-making       power
delegated to the Supreme ,Court.

                          “A’ statute is not local or special even
                    though its performance      is confined to a res-
                    tricted area, if the persons or things through-
                    out the State are affected thereby or if It
                    operates upon the subject that the people at
                    large are interested    in.”   Atwood VS. Willacy
                    Co. Navigation District,      Tex. Civ. App. 1955,
                    284 S.W. 2d 273, refused, n.r.e.

              Sections 3 and 4 require t he affidavit on motion in 9     pro-
ceeding and=        court.  Then Section 7 exempts many types of proceed-
ings. However, this Bill would not be classed as special legislation
because its provisions     are not limited to a restricted area.  On the
contrary,   it would affect the entire State and acts alike on’all suits
not specifically   exempt therefrom.



                                        SUMMAR Y


                        Section 3 and Section 4 of House
                Bill 708 contain rules or practice and
                procedure for the trial of civil cases.
                Full rule-making   power in civil actions
Honorable      J. E. Winfree,     Page 6 (WW-100).




                      has been delegated to the Supreme Court
                      by the Leglslatute   in Art. 1731s V.C.S.,
                      but this Article may be amended or .re-
                      pealed.’ Se&tie-3’    and 4 of the Bill Will
                      have th$ effect of replaClng some of the
                      rules pi procedure.
                                          .
                         House Bill No. 708 iS not special
                  ‘legtslation by vlitue of theprovisions       of
                   Section 7 thereof,  in that it is tiot local
                   but affects the public generally.’


                                                Very   truly yours,




JLS:am:pf

APPROVED:

OPINION      COMMITTEE

H. Grady Chandler,
Chairman

Edwin P. Warner

J. C. Davis,    Jr.

William     E. Allen

John Ross      Lennan

REVIEWED        FOR      THE ATTORNEY        GENERAL

By:   Gee.     P. Blackburn
