Mr. Wilson E. Speir, Director                     Opinion No. M- 442
Department of Public Safety
5805 North Lamar Blvd.                            Re: The Validity of Sub-section 4a
Box 4087                                              of Section 3 of Article 668733,
Austin, Texas 78751                                   as Amended by Section 1,
                                                      Senate Bill 78 of the 61st
                                                      Legislature, R. S., 1969

Dear Mr. Speir:

    You have requested our opinion on the constitutionality of Sub-section 4a of
Section 3 of Article 668733,as amended by Section 1, Senate Bill 78 of the 61st
Legislature, R. S., 1969. Article 6687b is commonly known as the Texas Driver’s
License Act.

   In your letter, you state:

       “We would like to have your opinion as to whether there is
       sufficient notice in the caption of Senate Bill No. 78 to make
       constitutional this change in Sec. 4a. We believe that the
       language in the caption ‘amending Section 3, Chapter 173,
       Acts of the 47th Legislature, Regular Session 1941, as
       amended (Article 668713,Vernon’s Texas Civil Statutes)’ gives
       no notice that the Legislature intended to change Section 4a.
       We therefore believe that Section 4a as amended by Chapter
       350, Acts of the 59th Legislature, Regular Session, 1965, is
       still the law in Texas. ”

   Section 35, Article III of the Texas Constitution, states:

       “Sec. 35. No bill, (except general appropriation bills,
       which may embrace the various subjects and accounts, for
       and on account of which moneys are appropriated) shall
       contain more than one subject, which shall be expressed
       in its title. But if any subject shall be embraced in an
       act, which shall not be expressed in the title, such act
       shall be void only as to so much thereof, as shall not be
       so expressed. ”
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Mr. Wilson E. Speir, page 2 (M- 442)


   The title of Senate Bill 78 of the 6lst Legislature, R. S., 1969,   is   a8 follows:

                               “AN ACT

       relating to certain persons who are exempt from being
       required to have a driver’s license because of certain
       service in the armed forces; amending Section 3, Chapter
       173, Acts of the 47th Legislature, Regular Session, 1941,
       as amended (Article 6687b, Vernon’s Texas Civil Statutes);
       and declaring an emergency. ”

   Sub-section 4a of Section 3 of Article 66874 as amended by Section 1 of
Senate Bill 78 of the 61st Legislature, R. S., 1969, reads:

       “4a.   A person operating a commercial motor vehicIe, the
       gross weight of which does not exceed six thousand (6,000)
       pounds as that term is defined in Article 6675a-6 of the
       Revised Civil Statutes of Texas, operated in the manner and
       bearing current form registration plates as provided in
       Article 6675a-6a of the Revised Civil Statutes, who holds an
       operator’s license, shall not be required to obtain a com-
       mercial operator’s license. ”

    This Sub-section, prior to Senate Bill 78 of the 61st LegisIature, R. S. 1969,
read:

       “4a. A person operating a truck with a manufacturer’s
       rated carrying capacity not to exceed 2,000 pounds, which is
       intended to include trucks commonly known as pickup trucks,
       panel delivery trucks, station wagons, and carry-all trucks,
       who holds an operator’s license, shall not be required to
       obtain a commercial operator’s license. ”

     In construing the provisions of Section 35 of Article III of the Constitution of
Texas, the Supreme Court of Texas has stated on numerous occasions that the
caption of an amending act is not necessarily deficient because it merely
states that a particular prior law or particular section thereof is being amended
and does not give further particulars. State v. McCraken, 42 Tex. 383 (1875);
Gunter v. Texas Land & Mortgage Co., 82 Tex. 496 17 S. W. 840 (1891);
English & Scottish-American Mortgage & Investmen; Co., Ltd. v. Hardy, 93
Tex. 289, 55 S W. 169 (1900); Board of Water Engineers v. City of San Antonio,
155 Tex. 111, 283 S. W, 2d 722 (1955); Schlichting v. Texas State Board of Medical
Examiners, 310 S. W. 2d 557 (Sup. Ct. 1958).

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Mr. Wilson E. Speir, page 3 (M-442)


   However, this rule is not without limitation.    The Court stated in Board of
Water Engineers v. City of San Antonio, supra:
            ,,
              . ~ , if the provisions of the law or section to be amended
        involve a subject different from that actually dealt with in the
        body of the amending act, a reading of the former will not
        disclose to the reader the true subject of the amending act but,
        on the contrary, will mislead him as to the latter . . . ”

     Therefore,   the Court noted in footnote 3 at 283 S. W. 2d, page 727, the
following:

             ” ‘The courts of this state have held that a reference to a
        number of an article in a code, such as our Revised Statutes,
        is sufficient in the title of an act amendatory thereof, to allow
        any amendment germane to the subject treated in the article
        referred to. English & Scottish-American Mortgage & Invest-
        ment Co. v. Hardy, 93 Tex. 289, 55 S. W. 169; State v.
        McCraken, 42 Tex. [383] 384. The reason for the holding
        appears to be that the naming of the article to be amended
        directs attention to all of the provisions therein, as the sub-
        ject of the amending act, and that such provisions can be
        ascertained by reading the article to be amended. However,
        when the Legislature restricts the title of an amendatory act
        by reference to the number in the code of the article amended,
        and announces its purpose to deal with the original bill in
        respect to particular matters therein, it is bound to govern
        itself accordingly, and keep within what it had irself declared
        would be the limits of its proposed action. Sutherland
        Statutory Construction (2d Ed. ), vol. 1, Sub-section 139;
        State v. American Sugar Refining Co., 106 La.553, 31 So.
         181, 186. ’ ”

    Likewise it was held in Harris County Fresh Water Supply District No. 55
v. Carr, 372 S. W. 2d 523 (Sup. Ct. 1963):

            “The deceptive feature of the title is thus apparent.
        A reader is misled into believing that the bill will have
        no application to any type of water district except the two
        which are specified in the title, and that the purpose of the
        Act is to establish restrictions with respect to these two
        types of districts. But the intended effect of the Act is to
        prohibit the creation of any type of water district other
        than the two mentioned. ~ . ~”
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Mr. Wilson E. Speir, page 4 (M- 442)


   In Fletcher v. State, 439 S. W. 2d 656 (Sup. Ct. 1969), the Court held:

            “The main subject of the Act is stat.ed in the caption as
       being that related to the licensing of polygraph examiners.
       The expression of a purpose in the caption of an act relating
       to the licensing of polygraph examiners and the creation
       of a Polygraph Examiners Board fails to give notice that
       embodied in the Act is Section 2 (5) which includes the regu-
       lation of all persons who use any device (such as a B & W
       Lie Detector) to test or questi.on individuals for the purpose
       of verifying truth of statements. We therefore hold that the
       language used in the title of the Act is not sufficient to prop-
       erly advise the Legislature and the public as to the real
       subject of the Act. See Gulf Insurance Company v. James,
       143 Tex. 424, 185 S. W. 2d 966, 970 (1945); Arnold v.
       Leonard, 114 Tex. 535, 273 S. W. 799 (1925).”

   A similar holding is found i,n White v. State, 440 S. W. 2d 660 (Tex. Crim
1969):

           “The application of the above announced principles and
       authorities to the case at bar is too plain to require further
       discussion. Even the most liberal of constructions will not
       be enough to uphold the act. The language of the 1967
       act clearly imports that the act is to be amended in the
       stated particulars. No fair notice was given of any intent
       to make the drastic and radical changes in the penalty
       provisions that were made or to eli.minate penalties for other
       offenses provided for by the act being amended, and which
       goes a long way in destroying the very effect of the stated
       policy and intent of the overall act. ”

     The title of the amendatory act here refers specifically to exempting persons
required to have a driver’s license because of certain service in the armed forces,
The actual subject matter contained in the amendatory act’s Sub-section 4a extends
an exemption to other persons because of their operation of commercial motor
vehicles, a subject not mentioned in the title of the amendatory act. Had the
act’s title omitted the express bmitation “because of certain service’in the armed
forces”, the subject matter would have been suffi.ciently broad to places a reader
on notice that the proposed amendment intended to deal with all classes of persons
who shall be exempt from obtaining a commercial operator’s license. However,
the title of the amendatory act here is expressly restricted to those persons who
are exempt because of certain service in the armed forces. Therefore, we conclude
that the amendatory act’s title does not advise the Legislature and the public as to
                                   - 2195 -
Mr. Wilson E. Speir, page 5 (M- 442)


the real subject of Sub-section 4a of Section 3, as amended by Section 1 of Senate
Bill 78 of the 61st Legislature, R. S., 1969. As the subject contained in Sub-
section 4a of Section 3 was not expressed in the title, such Sub-section is void.
However, the portion of the amendatory act which relates “to certain persons who
are exempt from being required to have a driver’s license because of certain
service in the armed forces” is valid.

                                 SUMMARY

    Sub-section 4a of Section 3 of Article 6687b, Vernon’s Civil Statutes, (Senate
Bill 78, 61st Legislature, R. S. 1969) is invalid, being in violation of the provisions
of Section 35 of Article III of the Texas Constitution. The title to Senate Bill 78
gives no notice of an attempt to broaden the category of persons exempt from
obtaining a commercial operator’s license other than those who will be exempt
because of certain service in the armed forces. That portion of the amendatory
act relating to license exemption because of certain service in the armed forces is
valid.




                                              y General of Texas

Prepared by James H. Cowden
Assistant Attorney General

APPROVED:
OPINIONCOMMITTEE

Kerns Taylor, Chairman
George Kelton, Vice-Chairman

Richard Chote
Linward Shivers
Neil Williams
James Quick
Tom Sedberry

W. V. Geppert
Staff Legal Assistant

Hawthorne Phillips
Executive Assistant
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