Honorable Michael D. Barney    Opinion No. M-135
County Attorney
Ector County Courthouse        Re:      validity of cert&    pro-
Odessa, Texas 79760                     visions of House Bill 78,
                                        Acts of the 60th Legis-
           .~                           lature, Regular Session,
                                        1967, Chapter 680, Page
                                        1785 (relating to fees of
                                        county clerks and clerks
                                        of county courts) which
                                        purport to repeal certain
                                        fees for attorneys aa
                                        physicians under court
                                        appointment .fn certain
Dear Mr. Earney:                        cases.
          You have requested our opinion as to whether the pro-
visions of Subparagraph (a) (v) of Subsection B of Section 1
of Article 393Ob, Revised Civil Statutes of Texas, 1925, as added
by the provisions of House Bill 78, Acts of the 60th Imgisla-
ture, Regular Session, 1967, Chapter 680, Page 1785 at Page 1786,
are in violation of the provisions of Section 35 of Article 111
of the Constitution of Texas.
          Rouse Bill 78 is an act amending Title 61, Revised
Civil Statutes of Texas, 1925, by adding Article 3930b relating
to fees of county clerks and clerks of county courts. .,
          Section 35 of Article III of the Constitution of Texas
provides in part as follows:
          “'NO bili * l * shall contain more tban one sub-
    ject, which shall be expr'essed 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 expres-
    sea. '"
          Subparagraph. (a) (v) of Subsection B of Section 1 of
Article 3930b, Revised Civil Statutes of Texas, 1925, as added
by the provisions of House fill 78, reads as follows:

                              - 624 -
on. Michael D. Earney, page 2, (M-135)


        "'(v) For mentally ill: Total costs for all
   services listed in Article 5547-13, Article 5547-14
   and Article 5547-15, Vernon's Civil Statutes of Texas,
   shall be in the amount of. . . . . . . $40.00.'"
        Section 2 of House Bill 78 provides:
        "All laws or parts of laws in conflict with the
   provisions of this Act are hereby repealed to the
   extent of conflict only, including but not limited
   to Article 3930a, Revised Civil Statutes of Texas,
   1925; and Sections 13, 14 and 15, Chapter 243, Acts
   of the'55th Legislature, Regular Session, 1957 (Arti-
   cles 5547-13, 5547-14, and 5547-15, Vernon's Texas
   Civil Statutes)."
        The title to House Bill 78 provides:
         "An Act to amend Title 61, Revised Civil Statutes
    of Texas, 1925, by adding Article 3930(b), relating
    to fees which county clerks and clerks of county
    courts shall receive for their services: containing
    a repealing clause repealing all laws and parts
    of laws in conflict, to the extent of conflict only,
    with the provisions of this Act; containing a
    saving clause; and declaring an emergency."
         Thus, the title to House Bill 78 states that the bill
:lates to fees which county clerks and clerks of county courts
.a11 receive for their services. It makes no mention of set-
ng,court costs for mentally ill cases and gives no notice in
.e title that it will attempt to remove from the discretion
 the Court, under Article 5547-15, Vernon's Civil Statutes,
thority for the court to allow reasonable compensation to at-
rneys and physicians appointed by it under the Mental Health
de. The discretion of the Court and the costs of Court for
ntal illness proceedings are nowhere mentioned in the title,
r does the title reasonably cause one to foresee such an attempt
 the subject of the bill.
         Article 5547-13 reads as follows:
         "Upon the request of the county judge, the
    county attorney or the district attorney in
    counties having no county attorney shall repre-
    sent the State in commitment hearings under this
    Code."
         Article 5547-14, reads as follows:
                           - 625 -
non. Michael D. Earney, page 3, (M-135)


         "(a) The county of legal residence of the pa-
    tient shall pay the costs of Temporary Hospitaliza-
    tion, Indefinite Commitment and Re-examination and
    Rearing proceedings, including attorneys' fees
    and physicians' examination fees, and expenses
    of transportation to a State mental hospital or
    to an agency of the united States.
         "(b) For the amounts of these costs actually
    paid, the county is entitled to reimbursement by
    the patient or any person or estate'liable for,his
    support in a State hospital.
         "'(c) .Unless the patient or someone responsible
    for him is able to do so, the State shall pay the-
    cost of transportation home of a discharged patient
    and the return of a patient absent without authority.
         "(a) Neither the county nor the State shall pay
    any costsfor,a patient committed to a private
    hospital."
         Article 5547-15,reads as follows:
         "The county judge may allow reasonable.compen-
    sation to attorneys and physicians appointed by
    him under thisCode.   The compensation paid shall
    be taxed as costs in the case.o
          Neither Articles 5547-13, 5547-14, nor 5547-15 con-
cern nfees which county clerks and clerks of county courts shall
receive for their services".
          In construing the provisions of Section 35 of Arti-
cle XXI of the Constitution of Texas, the Supreme Court of Texas
has stated on numerous occasions that the caption of,au amend-
ing act is not necessarily deficient because it merely states
that a oarticular orior law or oarticular section thereof is
being &ended and ioes not give-further particulars. State v.
McCracken ,~42 Tex. 383 (1875); Gunter v. Texas Land a Mortgage
0.8   82 Tex. 496, 17 S.W. 840 (1891)i English L Scottish-American
Mortgage h Investment Co., Ltd. v. Hardy, 93 T . 289 55 S.W.
 69 (1900)- Board of Water Engineers v. City o?San AAtonio
155 Tex. l;l 283 S    2d 722 (1955) Schlichtinq v. Texas &ate
Board of Me&al    Ei'Ainers, 310 S.A.ld 557 (sup.ct. 1958).
         This rule, however, has its limits.   The Court


                            - 626 -
      Hon. Michael D. Earney, page 4, (M&135)


      stated in Board of Water Engineers v. City of San Antonio,   SUpra:   ~:

                I)
                 . . .if the provisions of the law or section
           to bs 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.za,
     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'gennane to the subject treated in
           the article referred to. English & Scottish-
           American Mortgage &.Investment Co.'v..Bardy, 93
           Tex. 289, 55 S.W. 169;.State v. McCracken, 42
           Tex.[3831 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 subject of the
           as&&rig act.,.and that such provisions can be
           ascertained by reading the article to be
           amended. .'Eowever,when-the Legislature re-
           stricts 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 Bills in respect to
           particular matters therein, it is abound to
           govern itself accordingly, and keep within
           what it had itself declared would be the limits
           Of its proposed action. Sutherland Statutory
           Construction (2d Ed.), vol. 1, 6 139; State v.
           American Sugar Refining Co., 106 La. 553, 31 So.
           181, 186."
,:              Likewise it was held in Harris County Fresh Water Sup&!
     ':~District~
                No. 55 v. Carr, ,372 S.W.Zd 523 (Sup.Ct. 1963):
               "The deceptive feature of the title is thus
          apparent. A reader is misled into believing that
          .the'billwill 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
                                   - 627 -
Eon. Michael D. Barney, page 5, (M-135.)


    of the Act is to prohibit the creation of any type
    of water district ather than the two mentioned. . . .?
See also Ward Cattle 6 Pasture Co. v. Camenter, 109 Tex.'l03.
200 s-w. 5SGlfInsuranceCo.,
                     :  u                        143 Tex.
::i; 1:::.".2d 966-~(145); Feagin v. State, 316 S.W.Zd 99
    .     ., 195: 8). *
          In view of the foregoing you are advised that the
provisionsof House Bill 78 purporting to repeal the provi-
siona of Articles 5541-13, 5547-14~and 5547-15, Vernon's Civil
Statutes, and purporting to fix coats for all services listed
therein are in violation of the provisions of Section 35 of
Article III of the Constitution of Texas.

                      S GMI4AR.Y
                      -------

          Rouse Bill 78, Acts of the 60th Legislature,
    Regular Session, 1967, Chapter 680, Pa e 1785, is
    ,an act amanding Title 61 of the Revisex Civil
    Statutes of Texas, 1925, by adding Article 39301,
    so as to provide certain fees which county clerks’
    and clerks of county courts shall receive for
    their services. The provisions of Rouse Bill 78
    which purport to repeal the provisions of Articles
    5547-13, 5547-14 and 5547-15, Vernon's Civil Stat-
    utes (relating to fees of attorneys and phyai-
    cihna in certain cases) are in violation of 'the
    provisions of Section 35 of Article III of the
    Constitution of Texas, since the title to House
    Bill 78 gave no notice of an attempt to repeal
    or amelidsuch Artialea.




                                                  Texas

Prepared by.John Reeves and
 Malcohn L. Quick
Assistant Attorneys General
APPROVED:
OPINION .COMMITTEE
                              -628 -
. .   .




          Hon. Michael D. Earney,                  paqb 6; (M-l35)-:-;,:7
                                                                      :                                                                               .::




          Eawthorne Phillips; Chairman.
          XetnS Taylor; Co-Chainnan ,                                                                            :

          Dyer!.&ore, Jr.
          Neil William&                 _,,        ,.               ':.
          Pat Bailey
          Harold Kennedy
          A. 'J. CIWJBBI, JR.
          Staff      Legal As@.atant               :. :
          .      .
              . ,.

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