Hon. C. E. Fulgham               Opinion No. s-136
Secretary of state
Austin, Texas                    Re:   Legality and effect of provision in
                                       S.J.R. 2, Acts 53rd Leg., R.S., 1953,
                                       limiting submission of constitutional
                                       amendment on county-wide hospital
                                       districts to "qualified property
Dear Mr. Fulgham:                      taxpaying voters."

         Your request for an opinion reads as follows:

          "It is the duty of this office to issue instruction8 to
     the several counties in Texas in reference to the holding of
     elections for the submission.~ofamendments to the Constitution.
     At the last regular session of the Legislature S.J.R. 2 was
     adopted calling for the submission of an amendment on the
     first Tuesday after the first Monday in November, 1954.
     Section 2 of said S.J.R. 2 reads as follows:

          "'The foregoing Constitutional Amendment shall be
       submitted to's vote of the qualified prope,rtytaxpaying
       ~voters of this &ate at the GenePal Election to be held
        on itiefir,stTuesday after the first Monda?f.inNovember,
        1954, at which election all ballots shall have printed
       thereon: . . . ' fEmphasi6 supplied throughout this
        opinionL7

     "The'act of the Legislature in limiting the class of voters
     as above under&or.4 is contrary to Section 1, Article XVII
     of the Constitution prescribing the method of amending the
     Constitution and which section reads in part as follows:

          "'The Legislature O . . may propose amendments to the
        Constitution, to be voted upon by the qualified
        electors for members of the Legislature, .~. .'

          "Question: Would this office be authorized to
     instruct the appropriate officials in each of the counties
     in Texas to permit all 'qualified electors for members
     af~:theLegislature' to vote on said amendment, irrespec-
     tive of the limitation appearing in S.J.R. 21

          "It may be assumed that the amendment would not be
     validly adopted if the e~lectorateis limited to the class of
Hon. C. E, F'ulgham,page 2 (s-136)



     voters mentioned in S.J.R. 2. Would it be validly adopted
     if it was voted favorably by the ?qualified electors for
     members of the Legislature??"

          AS you have pointed out, the Constitution provides for its
amendment by a vote of the qualified electors for members of the Legis-
lature. Sections 3 and 4 of Article III of the Constitution provide
that members of the Legislature "shall be chosen by the qualified
electors." The term "qualified elector," which is defined in Section
2 of Article VI of the Constitution, is not restricted to property
taxpayers. We agree with you that the limitation to property tax-
paying voters is contrary to Section 1 of Article XVII of the
Cbnstitution and that the amendment would not be validly adopted
if the class of electors permitted to vote on its adoption were
limited to property taxpaying voters,

          Whether Senate Joint Resolution No. 2 should be carried into
effect with this unconstitutional provisional provision eliminated
depends upon whether the provision is severable. The test for sever-
ability of unconstitutional provisions in statutes and other forms
of legislative enactments is stated in 9 Texas Jurisprudence, Costitu-
tional Law, § 56, as fauows:

          "'It is a well-settled rule that, if the several pro-
     visions of a legislative act are so mutually connected
     with and dependent upon each other as conditions, considera-
     tion, or compensation for each other as to warrant the belief
     that the Legislature intended them as a whole, and would not
     have enacted one or'more of them if the others could not be
     joined and carried into effect, then all the provisions must
     fall.'

          "On the other band, if the unconstituional portion of
     the statute is stricken out, and that which remains is com-
     plete in itself and capable of being executed in accordance
     with the apparent legislative intent, wholly independent of
     that which is rejected, it must be sustained.?

Also see cases digested in 34 Texas Digest, Statutes, $,6&,,(l).

          S.J.R. 2 is complete with this provision eliminated, as
the Constitution itself supplies the class of voters entitled to
vote on the adoption of the proposed amendment.

          The submission of a constitutional amendment must be
authorized by a vote of two-thirds of all the members elected to
each house of,,theLegislature. If the provision:limiting submis-
sion to the property taxpaying voters could be said to have influenced
the vote on this proposition in the Legislature, the validity of the
adoption of the amendment upon submission to all qualified voters
Hon. C. E. Fulgham, page 3 (s-136)



might be questioned, although there is authority to the effect that
after approval by the~,peoplethe omission or disregard of some
requried form of procedure preliminary to its submission will not
nullify its adoption. See 1.6 C.J.S., Cbnstitutional Law, § 9, p. 39;
11 Am. Jur.,Constitutional maw, 5 32, p, 638.~ However, if it fairly
appears that the Legislature would have taken the same auctionwith :.
this provision stricken, we are of the opinion that the validity of
the submission could not be doubted.

           The intention to do a vain or useless thing should not be
imputed ~tothe Legislature unless no other intention can reasonably
beg supplied. See 39 Tex. Jur., Statutes, § 131. It evidently was
the will of the Legislature that this proposed amendment be submitted
for adoption, and that it be submitted in such a way that the adoption
would be valid. We are led to the conclusion that the Legislature
intended to provide for the submission of S.J.R. 2 in a constitutional
manner and that the insertion of the restriction to property taxpayers
was either inadvertent or that it came about from a mistaken belief
that Section 3a of Article VI of the Constituion would apply to an
election on this proposition.

          Reverting to the question of whether this provision affected
the vote in the Legislature, the argument might be advanced that some
of the members may have been influenced to cast a favorable vote for
the proposition upon a belief that this provision would protect proper-
ty taxpayers against having's taxplaced upon them by nontaxpayers and
that they~would~not have supported the resolution if they had known
that all qualified electors, both taxpayers and nontaxpayers, would be
entitled to vote on the adoption of the amendment. The proposed
amendment, if adopted, would not levy a tax. Any tax levied under
it would have to be approved by the property taxpaying waters. Cf.
Section 3a, Article VI of the Constitution. With this safeguard
expressly stated in the amendment itself, it would be stretching the
bounds of credulity to conclude that the Legislature would not have
approved the resolution without a similar restriction to adoption of
the amendment. It is our opinion that this provision is severable.

          Answering'your specific questions, it is our opinion that
the constitutional amendment proposed in S,.J.R.2 would be validly
adopted if it is voted favorably by the qualified electors as
provided in Section 1 of Article XVII of the Constitution. %J.R. 2
should be carried into effect with this provision stricken; and your
office is authorized to instruct the appropriate officials to permit
all Pqualified electors for members of the Legislature" to vote on the
amendment.

                                     SUMMARY

           The provision in Senate Joint Resolution No. 2, Acts 53rd
       Legislature, R.S., 1953,'limiting SubmiSsion of the:proposeh‘
Hon. C. E. Fulgham, page 4 (s-136)



    cOn@titutiOZI.d   amendment   On   countyiwide'~Osp~t,tal;~-di~~t'ilkts:t)O
    ~"qualifiedproperty taxpaying voters" is contrary to Section,l,
    Article XVII of the Texas Constitution, which provides for
    submission of amendments to "qualified electors for members
    of the Legislature." This provision is severable, and the
    proposed amendment would be validly adopted if it was sub-
    mitted to and voted favorably by the "qualified electors" as
    provided in Section 1 of Article XVII.

         The Secretary of State is authorized to instruct the
    appropriate officials in each of the counties in,Texas to
    permit all "qualified electors for members of the Legislature"
    to vote on this amendment, irrespective of the limitation
    appearing in S.J.R. 2.

APPROVED:                                    Yours very truly,

J. C.,;Davis,Jr.                             JOHN BEN SHEPPERD
Reviewer                                     Attorney General

John Atchison
Reviewer
                                                             x%Y&
                                             BY
Robert S.~;'Trotti                                9 Mar   . Wall
First Assistant                                     Assistant

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