                                                                 R-461




~HICE     DANIEL
*,(‘cm!XEx GESERAL                   May 20, 1947

         Hon. Claud Gilmer, Chairman         Opinion No. V-210
         Committee on Appropriations
         House of Representatives            Re:    The constitutioLla1ity
         Austin, Texas                              of H.B. 199, by Wise-
                                                    man, relative to an
                                                    appropriation to pay
                                                    taxes to the bkgdelle
                                                    Independent Sohool
                                                    Uiatriot.
         Dear Mr. Gilmr:
                     You .have requested the opinion of this De-
         partment aa to the constitutionality of House Bill No.
         199, whioh is as follows:
                                                      .~
                     “An Aot mating ‘anappropriation of
               One Thousand Fifty-Three and 16/100 Dol-
               lars ($1,053.16);~or so much theresf as
               may be necessary, out of $he General Rev-
               enue Fund to pay taxes due by the State
               to a certain independent school district;
               and declaring an emergenoy.
                           “Be It enacted by the Legislature
                     of the State of Texas:
                           %eoticn 1. The sum of One Thou-
                     eand Fifty-Three and 16/100 Dollars
                     ($1,053.16), or as much thereof as may be
                     neoessary, is hereby appropriated out of
                     the General Revenue Fund to pay texes due
                     by the State of Texas to the Maydelle In-
                     .6epemMn,llt;
                               soho   Ql&rict for the years
                     1943, 1944 and 1945 and 1946.
                           “Section 2. The fact that Article
                     2784b.of the Revised Civil Statutes of
                     Texas, 1925, and Article 7150, Section
                     2-A and Seotlon 3-A, Acts of the Forty-
                     first Legislature, Fifth Called Session,
                     Chapter 47 ma Chapter 49, pages 190 and
                     191, Seotion 1 of each chapter, provides
                     tha,tthe State shall pay taxes creates an
Hon. Claud Gilmer - Page 2   (V-2LO)


      emergency and an imperative public ne-
      cessity that the Constitutioaal Rule
      requiring bills to be’realfOLLthree
      several days in each Rouse be suspended,
      and said rule is hereby suspended, and
      this Act shall take effect aad be in
      force from and after its pessrage,and
      it la so enacted.”
            Chapter 39, Aot s of t&o 41st Legislature,
5th Called Session, 1930, page 179, (Article 2704b,
V.C.S.) is in part as follows:
            Weotion 1. Thatfrant and after
      the passage of this Act, all land in
      Cherokee County, Texas, owned by the.,
      State of Texas and Prison Coormlssionof
      Texas, except the land heretofore‘set
      aside for the Rusk State Rospfital,but
      inoluding the land heretofore set aside
      to the Agricultural & Meohaaiaal College
      for re-forestration purposes, shall be
      subject to taxation for school purposes
      where any such land is embraoed within
      the~metes and bounds of any itiependent
      or common school district.
            “Seotion 2. Where any such iand
      is embraced within the metes cad bounds
      of any independent or c0nuw5 school dis-
      trict, the Trustees of the Pndependent
      Sohool District, of the Comissioners’
      Court for a Common School uistxiot, are
      hereby authorized to levy sod zause to
      be assessed and collected taxm for
      school purposes for the amount.and in the
      manner prescribed by the Genenl Laws
      for the levy of school taxes.
            mSection 3. The taxes berein pro-
      vided for shall be assessed an% collected
      in the manner now prescribed ~YJGeneral
      Laws for the assessment and coUecti.on
      or school taxes. . .”
            Chapter 47, Acts of the gist Legislature,
5th Called Session, 1940, page 190 (titicle 7150, Sub.
18, V.C.S.) is in part as follows:
 son. claud Cilmer -~Page 3   (V-210)


            WSeotion 1. Th.atArticle 7150,
      Revised Civil Statutes of Texas, 1925,
      provide for the exemption of such prop-
      erty from taxation be amended by adding
      thereto another Section, No. 3a, as
      follows:
             "Section 3-a. Provided that any
       territory that has been acquired or may
       hereafter be acquired, by the State of
       Texas, as a part.of any State Prison
       Farm or property, shall not hereafter
       be exempt from the payment of its pro
       rata part of any maintenance tax of a
       public school district of which the said
       territory was a part at the time said
       maintenance tax of the said district
       which are now outstandlog was votedi,or
       which is a part of said district at the
       time any maintenance tax my hereafter
       be voted by said district; and the pro
       rata part of said tax that shall be
       paid by said territory shall be the pro-
       portionate part that the assessed valua-
       tion of such territory for county pm-
       poses is of the total assessed valmtion
       of the school district for the year in
       whidh such taxes are assessed. Provfaed,
       also, that the said maintenance tax shall
       be paid by the governing Board or tinage-
       ment of the State Prison System out of
       any funds appropriated thereby by the
       Legislature. It is hereby specifically
       provided that the said maintenance tax
       shall be paid for each year that has
       elapsed since any such territory of a
       school district was aoquired by the State
       for and as a part of said prison system.
       . . .n
                  "
            --Chapter49,'Aots of the 41st Legislature,
5th Called Session, 1940, page 191, (Art. 7150, Sub. 17,
.l.C.S.)is ih_part:as follows:
            _
            ‘;‘s;;tionil.
                          That Chapter 81, page
      224, of the Cenerai and Special Laws of
      %he Bifst'called session of the 40th Leg-
      i~latu~ke;.19%7,-be.andthersame is hereby
      amended so as to hereafter read as fallows:
Hon. claua Cilmer - Page 4   (v-210)
              "That Article 7150 of the HeViSed
     ,ciVil Statutes  Of Texas, 1925, providing
     for the exemption of certain property
     from taxation, be amended by adding there-
     to another Section No. 2-A, as fo~llows:
            "Section 2-A. Provided that any
     territory that has been acquired mr may
     hereaft8r be acquired, by the St%te of
     Teras, as a,part of any State Prison Farm
     or property, shall not hereafter be ex-
     empt from the payment of its pro rata
     part of any bona tax of a public 5ohool
     district of which the said territory was
     a part at the time bonds of the 5aid dis-
     trict which are now outstanding were is-
     sued, or which is a part of said &strict
     at the time of the issuance of bm@s
     which may hereafter be voted; and &he pro
     rata part of said tax thGhal1    &W paid
     by said territory shall be the proportion-
     ate part that the assessed valuatimn of
     such territory for county purpos8~5i.5of
     the total assessed valuation of tka school
     district for the year in'which sue% taxes
     are assessed. Provided, also, tha% the
     said bond tax shall be paid by th8 govern-
     ing board of management of the StatlePris-
     on System out of any funds approprilated
     therefor by the Legislature. It is hereby
     specifically provided that the saifibond
     tax shall b8 paid for each year that has
     elapsed since any such territory o.?a
     sohool district was acquired by the State
     for and as a part of said prison system,
     if any bonds were then outstanding." (Em-
     phasis added)
           -Under the ruling of this Department in Cpin-
ion No. V-161, approved April 23, 1947, mnd for the iden-
tical reasons stated therein, Chapter 39 and Chapter 47,
Acts of the 41st Legislature, Fifth Called Session,Supra,
are each unconstitutional and void and, %h8refOr8 insofar
as House Bill No. 199, is predicated up05 the constitu-
tionality of either or both of said lawa, it is also un-
constitutional and void for the same reamns stated in
Opinion No. V-161.
            The language of House Bill ND. 199 does not
indicate whether or not the taxes "dtieby the Stat8 of
Texas to the Maydelle Independent School District for
.



    uca, Claud Gilmor - Page 5   (V-210)


    +-,,years 1943, 1944 and 1945 and 1946" are Ynaintensncen
    :,cxesunder the provisions of Chapter 47; supra, 0r"bond"
    :ex8s under the provisions of Chapter 49, supra.
                Chapter 49, supra, is a valid law, save and
    except the following clause, "or which 1-sa part of said
    !!8trictat the time of the issuance of mnds which may
              be voted". The emphasized clause is unconsti-
    :.*:e:ifter
    zilonal and void for the same reasons stated in Opihion
    fib.V-161. However, since such unconstitutional clause
    ce.1be severed from the remainder of the Act without de-
    r:roying its purpose, the balance thereof is constitu-
    <lOL.¶l,even though there is no severability clause. See
    zarber vs. Florence, 131 Texas 341, 115 S. W. (2d) 604,
    b2b. The Stat8 may not impair the obligation of a valid
    existing contract between the bondholders and the.schooi
    elstrict and when it acquired the land in Question, the
    5:hte impliedly assumed the payment of its pro rata share
    of the then existi   bonded indebtedness. Hence the Leg-
    !rleture
           ----i-P
             may ega ly appropriate funds for the payment
    cl the obligation so assumed.
                It is the opinion of this Department that,
    absent any language therein to the effect that the sum
    doucht to be appropriated is for the paymermtof b.ond
    :oXeY for the payment of bonds legally issued and out-
    otanding upon the land in question at the time of its
    ecquisition by the State of Texas, House Rill No. 1991s
    I;r.oonstitutional.

                          SUMMARY

               House Bill No. 199, Fiftieth Legisla-
         tUr8, providing for the payment of cartain
         taxes on Stat8 owned lands, to a certain
         independent.school district, out of the Gen-
         eral Fund of the State, is unconstitutional
         and void as violative of the provisions of
         Article III, Section 51 and Article II, SeC-
         tion 9, Constitution of Texas. See Attorney
         General's Opinion No. V-161.

                                       Yours V8Jrytruly
                                  ATTORNEY GENERAL OF TEXAS

                                       ed!
                                  BY
                                       C. K. tU8hards
                                       Assistan4*
