The Honorable John Connally         Opinion No. c- a0
Governor of Texas
Capitol Station                     Re:   Constitutionalityof
Austin 11, Texas                          House Bill 92 of the
                                          58th Legislature.
Dear Governor Connally:
          We are in receipt of your request for opinion regard-
ing the constitutionalityof House Bill 92 passed by the Fifty-
eighth Legislature.
         House Bill No. 92 reads in its entirety:
                                          "H.B. No. 92
                          "AN ACT
    authorizing the CommissionersCourt of any county
    bordering on the Gulf of Mexico or the tidewater
    limits thereof to regulate the speed of motor
    vehicles on beaches which are open and accessible
    to the public, and also to prohibit the littering
    of such beaches; providing for receptacles for
    such litter and posting of signs; providing that
    the CommissionersCourts of such counties may au-
    thorize sheriffs and other persons to enforce
    such regulations;authorizing such Commissioners
    Courts to provide penalties for violations of
    these re ulatlons within limitations;repealing
    Section 8 of Chapter 19, Acts of the Fifty-sixth
    Legislature,Second Called Session, 19% (compiled
    as Article 5415d of Vernon's Texas Civil Statutes),
    and all other laws and parts of laws In conflict
    herewith; providing certain exceptions;restricting
    certain regulatory powers of the Commissioners
    Court; providing for severability;and declaring an
    emergency.
          "BE IT ENACTED BY THE LEGISLATUREOF THE STATE
     OF TEXAS:
          "Section 1. The CommissionersCourt of any
     county bordering on the Gulf of Mexico or the tlde-
     water limits thereof may regulate the speed of motor


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Honorable John Connally, page 2 (C- 80 )

    vehicles on any of the beaches of the county which
    are open and accessible to the public. These Com-
    missioners Courts are also authorized to regulate
    the littering of such beaches, and toward this end
    they are authorized to define the term 'lltterlng.~
         "Sec. 2. The CommissionersCourt of any such
    county may authorize the sheriff and his deputies
    and other peace officers to enforce the regulations
    promulgatedunder this Act, and may authorize persons
    other than peace officers of that particular county
    to enforce such regulations.
         “Sec. 3.  The Commissioners'
                                    Court may'provide'
    penalties for v'iolatl~hs'or'th8'~8g~latlon8'adb~te~'
                              'M~alty' sh&ll'e%i&eC'
                                (Emphasisadded).
         “Sec. 4.  Section 8 of Chapter 19, Acts of the
    Fifty-sixthLegislature,Second Called Session, lg.59
    (compiledas Article 5415d of Vernon's Texas Civil
    Statutes), Is hereby repealed. All other laws and
    parts of laws In conflict herewith are hereby repealed.
         "Sec. 5. The CommissionersCourt of any county
    Included within the provisions of this Act undertak-
    ing to regulate motor traffic over a designated area
    of the public beach shall post signs at the usual
    points of entry notifying the general public of the
    speed limits governing such area. Failure to so post
    said signs relating to speed limits shall constitute
    a defense to said violation of this Act. Such Court
    shall place at the usual points of entry of such area
    receptacles for the disposal of refuse, garbage, junk
    and rubbish by the public in such area. Failure to
    place and maintain receptaclesat the usual points of
    entry of any designated area shall constitutea de-
    fense to said violation of this Act.
         "sec. 6. This Act shall in no manner, either
    by its terms or application,in anywise affect the
    title to real estate owned or claimed by persons, firms
    0~ corporations,and any judgment of conviction entered
    in the prosecution of an offense under this Act shall
    not be consideredadmissible as evidence in any suit
    involving the title to realty.




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Honorable John Connally, page 3 ,(c-80 )

          “Sec. 7. The provisions of this Act shall not
     be construed to give the CommissionersCourt the power
     to prohibit any type of vehicular travel on any beach
     within this State.




          “Sec. 9. The importanceof this legislationand
     the crowded condition of,the Calendars In both Houses
     create an emergency and an Imperativepublic necessity
     that the ConstitutionalRule requiring bills to be read
     on three several days In each House w suspended,and
     this Rule is hereby suspended,and that this Act take
     effect and be in force from and after Its passage, and
     it Is so enacted."
          Section 1-A of Article IX of the Constitutionof Texas,
approved by the electorate on November 6, 1962, states as follows:
          "The Legislaturemay authorize the governing
     body of any county bordering on the Gulf f Mexlco
     or the tidewater limits thereof to regulate and
     restrictthe speed, parking and travel of motor
     vehicles on beaches available to th public by
     virtue of public right and the litt&ng of such
     beaches. (Emphasisadded).
          "Nothing in this amendment shall increase the
     rights of any riparian or littoral landownerwith re-
     gard to beaches available to the public by virtue of
     public right or submerged lands.
          "The Legislaturemay enact any laws not lncon-
     sistent with this Section which it may deem neces-
     sary to permit said counties to Implement,enforce
     and administer the provisions contained herein.
     (Emphasis added).




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Honorable John Connally, page 4 (C- a0 )

          "Should the Legislatureenact legislationin
     anticipationof the adoption of this amendment,
     such legislationshall not be Invalid by reason
     of Its anticipatorycharacter." (Emphasisadded).
            Section 1 of Article II of the Constitutionof Texas
provides:
         "The powers of the Government of the State of
    Texas shall be divided into three distinct depart-
    ments, each of which shall be confided to a magis-
    tracy, to wit: Those which are Legislativeto one;
    those which are Executive to another, and those
    which are Judicial to another; and no person, or
    collectionof persons, being of one of these depart-
    ments, shall exercise any power
                              _     properly attached to
    either of the otheral exaept'ln'the~instanbes.her~~n'
    expressly perinltted:' (Emphasisadded).
          Section 18 of Article v of the Constitutionof Texas
provides, in part:
          "...The County Commissionersso chosen, with
     the County Judge as presiding officer, shall compose
     the County CommissionersCourt, which shall exercise
     such powers and jurisdictionover all county busi-
     ness, as la conferred by this Constitutionand'the
     laws of th State;'or'as'map'be'herearter'gres~ribedl."
     ‘(EmphasisEdded).
          Since the Constitution (Sec. l-A, Art. a) specifi-
cally authorizes the Legislatureto enable the governing body
of certain counties to regulate the speed of motor vehicles and
littering on beaches available to the public, no constitutional
question of delegation of powers exists. Particularlyis this
true In view of the emphasized portions of Articles II and V of
the Constitutionquoted above. To conclude otherwise would be
tantamount to holding Section 1-A of Article M of the Constitu-
tion, unconstitutional.
          There can be no question that the bill in question con-
stitutes an exercise of the police power of the State, which has
been defined as "a grant of authority from the people to their
aovernmentalagents for the nrotectlon of the health. safetv.
comfortand the~welfare of~theepublic." Spann v. City of Dailas,
111 Tex. 350, 235 S.W. 513, 515 (1921). Section 1-A of Article




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Honorable John Connally, page   -y(c-   86   ‘):   “’   ;’



IX clearly is a grant of the people to their,governmentalagents
of the kind of authority contemplatedby the foregoing definition,,
because regulation of speed and littering on beaches open to the
public Is unquestionablecalculated to protect and promote the
health, safety, comfort and welfare of the public.
          The police power of the State more than all others af-
fects most Intimatelythe private and personal Interests and re-
lations of each individual. To a certain extent the power is
indefinable;the limits of its exercise are never clearly esta-
blished. To the Legislature,directly or as It may lawfully
delegate the power, Is given the large discretion of passing
measures necessary to effect the desired result, restricted
only by constitutionallimits; ,The Legislatureis the judge of
the wisdom and policy of all its enactments,and the courts are
without the right to overrule that judgment unless the Legis-
lature has clearly and beyond doubt exceeded the functions in-
vested to It by the Constitution. The State has the power to
select its agent for exercising the police power; It may con-
stitutionallydelegate to a subordinatepublic a ency the right
to exercise this power. See straues'v;~ State; 7f Grim. Rep.
132, 173 S.W. 662, 665 (1915).
          Perceiving no clear or undoubted reason suggestive
that the Legislaturehas exceeded any function Invested to it
by the Constitution,md noting that the material provisions
of House Bill 92 closely tract the language of Section 1-A of
Article IX, Constitutionof Texas, we conclude that House Bill
92 would be sustained as valid legislation.
                        SUMMARY
          House Bill 92 of the 58th Legislature
          is a constitutionaldelegation of the
          police power of the State and would be
          sustained as valid legislation.
                                   Very truly yours,
                                   WAGGONER CARR
                                   Attorney General



                                        F. R. Booth
                                        Assistant Attorney General
FRB:ab

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Honorable John Connally, page 6 (c- a0   )


APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Howard Fender
John Reeves
W. 0. Shultz
Jerry Brook
APPROVED FOR THE ATTORNEY GENERAL
BY: Stanton Stone




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