Hon. John Connally                        Opinion    No. M-90
Governor of Texas
Office,  Capitol  Bldg.                   Re:   Constitutionality        of
Austin,  Texas                                  Section     13-C of House
                                                Bill No. 786 amending
                                                Art. 2338-1, V.C.S.,
                                                relative     to probation
 Dear   Governor    Connally:                   of a delinquent       child.
             You have requested         an opinion      from this offlce     as
to the constitutionality         of H. B. 786 amending Chapter 204,
Acts of the 48th Legislature,            1943, as amended (Article
2338-1,   V.C.S.),      by adding sections       relating     to restitution
by delinquent      children,    parents,     guardians      and other persons
for damage to persons        or property      of others      caused by acts
of such children,        and imposing responsibility            on persons   having
custody   of such children.
              Section   13-C.   (a)   of H. B, 786,      provides,     in part,
as follows:
                     "Section    13-C. (a)    If the court finds that
              the child is a delinquent         child and that any act
              on which the finding      is based resulted      in injury    to
              the person or property        of another,    then the court,
              In the ~event it should place the child           on proba-
              tion,   as a condition     of such probation     may order
              the child to make restitution          to the injured    person
              up to the amount of the actual           damages sustained     as
              determined      by the court,    . . ."
            The pertinent       portion     of the    caption   of H.B.    No. 786
reads   as follows:
                     "AN ACT relating     to requiring    a delinquent   child,
              as a condition     of probation,     to make restitution     for
              injury   to person or property       of another    if the delinquent
              act was committed      with the knowledge or neglect       of th
              parent   or guardian,     . . .'I (Emphasis added throughout. e,


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Hon. John     Connally,     Page 2, Opinion      No. (Hcgo)

            Section       35, Article    III,   of the   Texas   Constitution
reads   as follows:
                     “No bill, (except     general   appropriation      bills,
              which may embrace the various          subject     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,       a6 shall  not be so expressed.”
            Comparing the above quoted portions           of the body and
caption   of the Act, it is apparent         that the body of the Act
gives the court unconditional        authority     to require    the delin-
quent child    to make restitution      for damages resulting       from
his delinquent      act while the caption       recites that   the court
may require    restitution    from the delinquent       child   only If the            delin-
quent act was committed with the knowledge or neglect               of the
parent   or guardian.
               As a general    rule,  in order to comply with the pro-
visions     of Section    35 of Article     III of the Texas Constitution
a caption      should not be either      broader  QP narrower      than the
body of     the act.    Where the caption      is more restrictive      than
the body      of the act,   the act is void insofar      as its provisions
are not     expressed   within    the caption.
             It is our opinion        that the body of the Act fiection
13-C (817 relating        to restitution          by the delinquent      Fhlld    Is
broader   than the caption      and, therefore,           contravenes     Section
35 of Article     III of the Texas Constitution.                 We are supported
in this conclusion       by Fort Worth & D. C. Ry. Co. v. Loyd, 132
S.W. 899 (Tex.Civ.App.TIO;~             errorref.).         I th at case the
title   of the act In question          authorizes      the Recovery of attorney
fees In certain      cases where the claim asserted               did not exceed
$200, while the body of the act allowed recovery                     of attorney
fees without    regard    to the amount of the claim.                In holding
the act void, the court stated             at page 900:
                      “Clearly,    the body of the act embraces claims
              not included      in the title.        If the body of the act
              had been so framed that such claims could be rejected
              from its operation         without    changing   or adding to
              the language      of the act,      then, in eccordance     with
              constitutional       provision     quoted,    the act would be
              held valid      as applicable      to claims not in excess
              of $200, and rejected          when invoked in suits      upon
              claims amounting        to more than $200.        But the act
                                 - 409 ”
Hon. John   Connally,     Page    3, Opinion no. (M-90)

            refers     to all claims of the character           therein
            specified     collectively       and the same language,
            and to say that it shall            apply only to claims
            not in excess of $200 would be to change or
            llmit    the ordinary      meaning of the language
            employed.       Such a construction         is not permiss-
            ible even under        the liberal      rule obtaining      to
            the construction         of statutes     when assailed      as
            being in contravention           of the Constitution."
                    "In Sutherland          on Statutory       Construction,
            in section       87, the following           is said:       'The
            title     cannot be enlarged           by construction        when
            too narrow to cover all the provisions                     in the
            enacting      part,     nor can the purview be contracted
            by construction           to fit the title;         but the title,
            if delusively         general,      may be sufficient         though
            more extensive          than the purview.'            The foregoing
            is in accord with the following                  statement      of the
            law found in Am. & Eng. Encyc. Law, 596, which
            seems to be sustained              by the authorities:            'Where
            the act contains            a single    provision      which is
            broader      than the title,         the court cannot narrow
            and change the ordinary              meaning of the words
            employed in the act so as to sustain                    it as to
            cases falling         within     the title.'        See W. U.
            Tel. Co. v. State,            62 Tex. 630; Cooley’s           Con-
            stitutional        Limitations        (6th Ed.) 177, 211,
            212; Elliot         v. State,      91 Ga. 694, 17 S.E. 1004;
            Trade-Mark       Cases,      100 U.S.        , 25 L. Ed. 550;
            Suthcrlsnd       on Stat.       Const. B 169, 170, 173,
            and decisions         there cited."
               The remaining  portions   of Section    13-C are so
connected      with and depended upon the invalid       portion  of
this    section    that they cannot stand alone and are meaning-
less even when considered        in conjunction    with existing    pro-
visions      of Article   2338-1, which House Bill 786 amends.
Ft. Worth & D. C. Ry. Co. v. Loyd, supra,           53 Tex. Jur. 2d 84.
                               SUMMARY
                               -------
                    Since that portion      of the caption     of House
            Bill 786, amending Article         2338-1, V.C.S.,       which
            relates     to restitution     by delinquent    children,
            parents     or guardians     is at variance    with the
            body of the Act, it is uricon&~iitutional            as con-
            travening     the provisions     of Section    35, Article
            III of the Texas Constitution.
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Hon. John   Connally,     Fage     4, Qplnion   No. M-90)




                                                        C. MARTIN
                                                        General of Texas


Prepared  by:
Monroe Clayton
APPROVED:
OPINION COMMITTEE
Hawthorne Fhillips,     Chairman
w. V. Geppert,    Co-Chalrman
J. C. Davis
John Banks
W. 0. Schultz
Harold Kennedy
A. J.   CARUBBT, JR.
Staff   Legal Assistant




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