      -.




           HE    A~-~oRNEY         GENERAL
                        OFTEXAS




Honorable Price Daniel       Opinion ~~-163.
Governor of Texas
Capitol Station              Be: Constitutionalityof H.B. 317,
Austin,,Texas                    regarding the authority of the
                                 San Antonio River Authorityto
                                 take lands not heretoforeused
                                 but merely dedicated for ceme-
Dear Governor Daniel:            tery purposes.
          You have requested an opinion of the constitutionality
of House Bill 317 of the 55th Legislaturerelating to the au-
thority of the San Antonio River Authority consisting of Bexar
and several other counties to condemn lands not heretoforeused
but merely dedicated for cemetery purposes when such land is
located in Bexar County, only.
          House Bill 317 amends Subdivisione of Section 3, Acts
of the 45th Legislature 1937, Chapter 276, as amended, codified
in Vernon’s as Article 8280419, Vernon’s Civil Statutes by add-
ing the following provisionsto Subdivision e of Section 3:
         “. . . the power to condemn lends not hereto-
    fore used,,but merely dedicated,for cemetery pur-
    poses is hereby fully and specificallyconferred,
    in addition to the existing power to so condemn
    such land, if any, without any limitation except
    that in the case of land which is actually being
    used for such purpose it must be shown and found
    in the course of the condemnationproceedingwith
    respect thereto, which shall be conducted in the
    manner provided by General Law, that there i,sa
    practical necessity to take such land in order to
    exercise the powers and fulfill the functions of
    the District, and, further, in the case of land
    merely dedicated for cemetery purposes, that such
    land, even though not therefor~enecessary, will
    at least be convenientand useful to the District
    in the exercise and fulfillmentof its said powers
    and functions. Provided further that when lands
    actually in use as cemetery lands with graves
    thereon be condemned as provided above, said graves
    shall be removed to appropriatelocations, if re-
    quested by heirs of the deceased at the expense of
                                                    .^




Honorable Price Daniel, page 2   (w-163)


     the condemning
                 *. authority.
     .. conaemnation           Provided however, that
     tne              powers nerein granted in so far
     as cemetery lands are concerned,will be appli-
     cable only to Bexar County."
          The 45th Legislature,pursuant to the provisions of
Section 59 of Article XVI of the Constitutionof Texas, created
the San AntonioRiver Authority and prescribed its powers, du-
tiersand functions. Although this Act constitutesa local or
special law, such Act, being enacted under the specific author-
ity of Section 59 of Article XVI of the Constitution,did not
violate the provisions of Section 56 of Article III of the Con-
stitution of Texas prohibitingthe enactment of local or special
laws of various subjects. See -1
                               L e
                              .W.2d 629 (1935); Lower Nechex
                               Tex. 294, 167 S.W.2d lol;c;;9 3);
                              ReclamationDistrict vs       aW
                                         of Aransas Piss vs. )
                                        3); Atwood vs. WI1 cy
                          , 284 S.W.2d 275 (Tex.Civ.App.1$?5,

           In construingthe power of the Legislature to grant
 Districts, created pursuant to the provisions of Section 59 of
 Article XVI and Section 52 of Article III of the Constitutionof
 Texas certain pow;;; and rights, the Court, in Deason vs. Oranpe
 Countv Wat r ont     and IpgprovementDistrict, 151 Tex. 29, 244
 S.W.2d 981e(lt522),stated:
          "Both constitutionalamendments specify the
     circumstancesand purposes for which water control
     and improvementdistricts may be organized and the
     Legislatureis without power to add to or withdraw
     from the circumstancesand purposes specified.
     Arnold v. Leonard et al., 114 Tex. 535, at page 540,
     27 S.W. 799, 802; Thompson et al. v. Kay et al.,
       2 Tex. 252, 77 S.W.2d 201, 214.
     ,12
           "The Legislature can.onlv erant the distric
           uowers -rights    as come wit%&---
      tion or nrovisions of th art1 1 s f the Constiu-
                           ." s(Bmpha%: o:rs)
 Thus, while the Legislaturemay create by a local or special law
various river authorities,and prescribe their powers and duties
without violating the provisions of Section 56 of Article III of
the Constitutionof Texas, it cannot enact a local or special law
which deals with a subject specificallyprohibited by its provi-
sions. As illustrativeof this principle of law, the Legislature
Honorable Price Daniel, page 3   tkf+l63)


may by a local or special law create various courts and pre-
scribe their powers functions and duties pursuant to the pro-
visions of Section 3 of Article V of the Const~itutlonof Texas
without violating the provisions of Section 56~of Article III;
Lvtle vs. HalfP 75 Tex. 128 12'S.W~., 610 (1889);Harris Countg
gs. Crooker, 113 Tex. 450 2ft8S.W. 652 (1923)*~ Tom Green-C.%-
vs.         ~, 195 S.W;2d 845 (Tex.Civ.App.194&J.,
Travis Countv vs. Matthews, 235S.W.2d 691 (Tex.Civ~.App. 1950,
error ref. n.r.e.1. However, the Legislature cannot enact a
local or special law authorizingor empaneling Grand or Petit
Juries since it is specificallyprohibited by the provisions of
Section 56 of Article III of the Constitutionof Texas. Rios vs.
State, 288 S.W.2d 77 (Tex.Crim.1955).
           Section 56 of Article III of the Constitutionof Texas
prohibits the Legislature from enacting any local or special law
"relatingto cemeteries,grave-yardsor public grounds not of the
State;". Since House Bill 317 of the 55th Legislatureamends
Article 82804.19,  Vernon's Civil Statutes, so as to specifically
authorize San Antonio River Authorityto condemn lands not here-
tofore used but merely dedicated for cemetery purposes when such
lands are located only in Bexar County, it is our opinion that
House Bill 317 constitutesa local or special law relating to
cemeteries and is,therefore,uuconstitutional,  being a violation
of the provisions of Section 56 of Article III of the Constitu-
tion of Texas.


          House Bill 317 of the 55th Legislature authorizing
     the San Antonio River Authorityto condemn lands not
     heretofore used but merely dedicated for cemetery pur-
     poses is unconstitutional being in violation of Section
     56 of Article III of the Constitutionof Texas, prohibit-
     ing the enactment of any local or special law relating
     to cemeteries.
                                 Yours very truly,
                                 WILL WILSON
                                 Attorney General of Texas




JR:pf:wb
Honorable Price Daniel, page 4   Uw-163)


APPROVED:
OPINION COMMITTEE
H. Grady Chandler, Chairman
James N. Ludlum
C. K. Richards
J. C.:Davis, Jr.
APPROVEDFOR THE ATTORNEY GENERAL
BY:
      Geo. P. Blackburn
