THE ATTORSET GENERAL
OF TEXAS
October 26, 1989
Honorable Edwin E. Powell, Jr. Opinion No. JM-1111
Coryell County Attorney
P. 0. Box 796 Re: Obligation of a commis-
113 South 7th sioners court to rent space
Gatesville, Texas 76528 outside the courthouse for
the county surveyor (RQ-1720)
Dear Mr. Powell:
You ask about a county's obligation to pay for office
space for the county surveyor. Specifically, you ask
whether a county must pay for office space for the county
surveyor outside the county courthouse. Your question
requires us to consider the continuing validity of Attorney
General Opinion o-3229 (1941), which held that it is
entirely within the discretion of the commissioners court to
determine whether the county will provide office space for
the county surveyor. See also Attorney General opinion
O-5685 (1943) (dealing with a county's responsibility to
provide stationery for county surveyor).
Attorney General Opinion O-3229 (1941) considered the
effect of two conflicting statutes. One statute, which was
codified as article 5283, V.T.C.S., provided that a county
must provide office space for the county surveyor under
certain circumstances:
A county surveyor shall be elected in each
county at each general election for a term of
two years. He shall reside in the county and
keep his office at the courthouse or some
suitable building at the county seat, the
rent therefor to be paid by the
commissioners' court on satisfactory showing
that the rent is reasonable, the office
necessary and that there is no available
office at the courthouse.
V.T.C.S. art. 5283 (Vernon 1926); see also Law of Aug. 18,
1876, ch. 114, 1876 Tex. Gen. Laws 196; 8 H. Gammel, Laws of
Texas 1032 (1876) (original enactment). A later enacted
statute, which was codified as article 3899b, V.T.C.S., left
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Honorable Edwin E. Powell, Jr. - Page 2 (JM-1111)
it entirely to the discretion of commissioners courts to
determine whether the county would provide office space to
the county surveyor. Acts 1929, 41st Leg., ch. 207, at 448.
In Attorney General Opinion O-3229 this office concluded
that the later enacted statute, article 389913, had impliedly
repealed article 5283 and therefore that county
commissioners court had discretion to determine whether to
provide office space to the county surveyor. See also Tex .
Const. art. XVI, § 44; Local Gov't Code 5 291.001 (both
providing that the county surveyor "shall have an office at
the county seat").
Both of the statutes considered in Attorney General
Opinion O-3229 have been affected by the ongoing statutory
revision process provided for in section 323.007 of the
Government Code, which directs the legislative council to
plan and execute a program of nonsubstantive recodification.
See senerallv Collins, Continuino Statutorv Revision: Where
Did the Civil Practices and Remedies Code Come From?, 50
Tex. B.J. 134 (1987). The recodification program is not
intended to alter the "sense, meaning, or effect" of a
statute. Gov't Code § 323.007. Nonetheless, the process
has resulted in the express repeal and reenactment of former
article 5283, which this office had held to be impliedly
repealed, and the express repeal, without reenactment, of
former article 389913. Those changes call into question the
continuing validity of Attorney General Opinion O-3229.
In 1977 the legislature adopted the Natural Resources
Code. Acts 1977, 65th Leg., ch. 871, at 2345. In enacting
the code, the legislature repealed article 5283, the
provision the attorney general had held to be impliedly
repealed, and reenacted it, in part, as section 23.016 of
the Natural Resources Code. Id. at 2368. That section
reads as follows:
(a) The county surveyor's office shall be
located in the courthouse or in a suitable
building at the county seat.
(b) Rent for an office outside the courthouse
shall be paid by the commissioners court on
showing that:
(1) the rent is reasonable:
(2) the office is necessary; and
(3) an office is not available at the
courthouse.
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Honorable Edwin E. Powell, Jr. - Page 3 (JM-1111)
A foreword to the proposed Natural Resources Code
states that. the drafting involved eliminating impliedly
repealed provisions, but does not explain how the
legislative council determined whether a provision had been
impliedly repealed.1 Johnson, Foreward To Prooosed Code:
Revisor's Reoort. November, 1976, Nat. Res. Code, at IX
(1978). In any case, despite their intention to eliminate
impliedly repealed provisions, the drafters did not
eliminate former article 5283.
By itself, the reenactment of former article 5283 would
not affect the holding of Attorney General Opinion o-3229.
The enactment dates of specific statutes, rather than the
dates on which they were reenacted and codified as part of
the program of nonsubstantive recodification, determine
which of two conflicting statutes prevails. Alexander
1,
Ranch Inc. v. 733 S.W.2d 303, 308
(Tex. App. - Eastland 1987, writ ref'd n.r.e.), cert.
denied, 108 S.Ct. 2005 (1988); accord State v. TaDlin, 247
A.2d 919 (Me. 1968).
The legislature complicated matters, however, by
expressly repealing article 3899b when it adopted the Local
1. The revisor's note to section 1.002 of the code
offers insight into the difficulty in determining whether a
particular provision had been impliedly repealed:
With the adoption of the Administrative
Procedure and Texas Register Act, a number of
state laws relating to state agency procedure
were impliedly repealed. In cases in which
statutes assigned to this code for revision
were obviously repealed by that Act,
corrections have been made. However, the
absence of court interpretations of the APA
and the possibility that many laws assigned
to this code may require court consideration
before a determination can be made as to
whether in fact they were repealed by the
APA, those laws have been revised and
included in this code. [Discussion of
provision insuring that APA provisions would
prevail over provisions reenacted in code.]
Nat. Res. Code 5 1.002 revisor’s note (1978).
p. 5826
Honorable Edwin E. Powell, Jr. - Page 4 (JM-1111)
Government Code in 1987.2 Acts 1987, 70th Leg., ch. 149, at
707.. The repeal of article 3899b by the enactment of the
Local Government Code raises the question of whether the
provisions of former article 5283, now codified as section
23.016 of the Natural Resources Code, are again effective
even though both recodifications were intended to be
nonsubstantive.
Section 23.106 is now the only statute -- either in the
codes or in the revised statutes -- dealing with a county's
obligation to provide office space for the county surveyor,
and it is unambiguous on its face. Current rules of
statutory construction do allow courts to consider the
legislative history of even an unambiguous statute. Gov't
Code 8 311.023. In iv.B ant
722 S.W.2d 738, 740 (Tex. App. - Houston [14th Dist.] 1986,
no writ), the court held that a court may inquire into the
intent of a recodified statute that is clear on its face if
the legislature has stated that the recodification is not
intended to change the law and the recodification does in
fact make a substantive change. Comoare Ex carte Olden, 199
P.2d 228 (Okla. Crim. App. 1948) (inclusion of 1913 statute
impliedly repealed by 1915 statute in 1941 codification does
not validate 1913 law), with Atchlev v. Board of Barber
Examiners, 257 P.2d 302 (Okla. 1953) (code is law even
though it may contain sections theretofore repealed).
We do not think, however, that a court would consider
legislative history to be so significant that it would hold
2. The revisor's note at the end of chapter 152 of the
Local Government Code lists number of provisions,
including article 389913, that werz repealed as part of the
enactment of the Local Government Code. The note states
that those provisions were repealed because they are
ineffective or obsolete.
3. The Texas legislature has provided that the repeal
of a repealing statute does not revive the statute
originally repealed. Gov't Code 55 311.030 (applicable to
codes), 312.007 (applicable to civil statutes). This rule
was clearly intended to prevent revival of a statute by the
repeal of a statute expressly repealing the original
statute. We do not think the rule necessarily applies,
however, when the original statute was merely impliedly
repealed -- particularly when no court ever determined that
the original statute had in fact been impliedly repealed.
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Honorable Edwin E. Powell, Jr. - Page 5 (JM-1111)
that a provision that has not been carried forward in any
form is still the law. In Carbide Int'l v. State, 695
S.W.2d 653 (Tex. APP. - Austin 1985, no writ), the court
wrote:
The codification process is a part of the
Legislature's larger power to revise
laws. . . . The purpose of the process is
not to change the substantive law but to
supply a convenience by rearrangement of
separate statutes relating to the same
subject, so as to achieve a complete and
uniform system of statutory law dealing with
the subject. Tex. Natural Resources Code
Ann. 5 1.001. When adopted by the
Legislature in a constitutional manner, the
resulting Code as a whole constitutes a law
in and of itself, and not a mere compilation
of previous statutes, save in certain
respects not material here. The Code becomes
the statutorv law of the State resnectino the
subiects to which it relates, suversedinq
previous statutes omitted therefrom
revealed therebv. so that anvone subiect ::
its vrovisions mav look to the Code alone
with safetv and confidence. and without
resortina to the vrevious statutes exceot to
exvlain contradictions and ambisuities.
(Emphasis added.)
a. at 656 n.3; see also American Indem. Co. v. Citv of
Austin, 246 S.W. 1019, 1025 (Tex. 1922).
We think that a court, if faced with the question you
present, would hold that, whatever happened in the
recodification process, section 23.106 now governs the issue
of a county's responsibility to pay for office space for the
county surveyor. Otherwise, counties would have to look to
an expressly repealed statue in order to determine their
responsibilities in regard to office space for the county
surveyor. We conclude, therefore, that Attorney General
Opinion O-3229 is no longer a correct statement of the law
and that a county must follow the provisions of section
23.016 of the Natural Resources Code in determining whether
it must pay for office space outside the county courthouse
for the county surveyor.
You state in your brief that the decision of the
Coryell County Commissioners Court not to pay for office
space outside the county courthouse for the county surveyor
P. 5828
Honorable Edwin E. Powell, Jr. - Page 6 (JM-1111)
was based on both the county's unlimited discretion to
determine whether to provide office space for the county
surveyor, as well as a determination that the space was not
necessary. Because Attorney General Opinion O-3229 iS no
longer a correct statement of the law, the commissioners
court did not have unlimited discretion in regard to the
provision of office space for the county surveyor. If,
however, there was no showing that the office space outside
the courthouse was necessary, the commissioners court did
have authority, under section 23.016 of the Natural
Resources Code, to refuse to pay for office space for the
county surveyor.
SUMMARY
A county must follow the standards set
in section 23.016 of the Natural Resources
Code in determining whether to pay for office
space outside the county courthouse for the
county surveyor.
MARY KELLER
First Assistant Attorney General
MU MCCREARY
Executive Assistant Attorney General
JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Sarah Woelk
Assistant Attorney General
P. 5829