Honorable R. Ii.Cory Opinion NO. M-28
Chairman
State Affairs Committee Re: Whether H.B. No. 12
House of Representatives of the 60th Legislature
Austin, Texas can be made retroactive
and related questions.
Dear Representative Cory:
You have requested an opinion of this office on
the following questions concerning H.B. No. 12:
"1) Can the provisions of this bill be
made retroactive to the date of the last general
election at which a constitutional amendment on
this subject was adopted so that payments can be
made under the terms thereof to widows and children
of officers killed in the line of duty since the
date of said general election?
"2) Would an amendment including volunteer
firemen under the terms of this bill be constitu-
tional?
"3) Would an amendment including custodial
employees of the state institutions in charge of
the criminally insane under the terms of this bill
be constitutional?"
House Bill No. 12 of the 60th Legislature, Regular
Session, is a direct response to the recent addition to the
Texas Constitution of Section 51-d, Article III, Constitution
of the State of Texas, which was adopted at the last general
election. This amendment reads as follows:
- 116-
Hon. R. xi.Gory, page 2 W-28)
"The Legislature shall have the power, by
general law, to provide for the payment of assist-
ance by the State of Texas to the surviving spouse
and minor children of law enforcement officers,
custodial personnel of the Texas Department of
Corrections or of full-paid firemen who suffer
violent death in the course of the performance
of their duties as law enforcement officers,
custodial personnel of the Texas Department of
Corrections or as full-paid firemen."
In the absence of the above constitutional amend-
ment, any such payment would be a violation of Section 51,
Article III of the Constitution of the State of Texas which
reads in part:
"The Legislature shall have no power to
make any grant or authorize the making of any
grant of public moneys to any individual, as-
sociation of individuals, municipal or other
corporations whatsoever: . . . .'I
Consequently, since the amendment provides only for
full-paid firemen, volunteer firemen do not qualify under
Section 51-d and any payment of assistance by the state to
surviving spouse and minor children would be unconstitutional.
Similarly, Article 46.02, Vernon's Code of Criminal
Procedure, provides for the commitment of any person charged
1 with a criminal offense and found insane at the time of trial
to a state mental hospital.
Article 5547-202, Vernon's Civil Statutes, creates
the Texas Department of Mental Health and Mental Retardation.
Section 2.09 of that act sets out the powers and duties of
deputy commissioners. Among these are:
" b) Subject to the direction and super-
vision of the Commissioner, the Deputy Commis-
sioner for Mental Health Services.,hasprimary
responsibility for:
- 117 -
Hon. R. H. Gory, page 3 (M-28)
"(1) administration of the state mental
hospitals."
Since the state institutions in charge of the crimi-
nally insane are the mental hospitals, and the mental hospitals
are under the control and supervision of the Texas Department
of Mental Health and Mental Retardation rather than the Texas
Department of Corrections, any payment to surviving spouse and
minor children of custodial employees of these institutions
would likewise be unconstitutional.
You have asked if the proposed bill which provides
for the payment of assistance by the State of Texas to the sur-
viving spouse of minor children of law enforcement officers,
full-time firemen, and custodial personnel of the Texas Depart-
ment of Corrections, who suffer violent death in the course of
the performance of their official duties as such, may be made
applicable to surviving spouse and minor children of officers
killed in the line of duty since the date of the general election
and before the effective date of the proposed bill.
Section 51-d provides in part: "The Legislature shall
have the power, by general law, to provide for the payment of
assistance. . . .I' In a similar case, State v. Clements, 319
S.W.2d 450 (Tex.Civ.App. 1958, error ref.), the court construed
Section 51-c, Article III, Constitution of Texas. That section
reads:
"The Legislature may grant aid and compen-
sation to any person who has heretofore paid a
fine or served a sentence in prison, or who may
hereafter pay a fine or serve a sentence in prison,
under the laws of this State for an offense for
which he or she is not guilty, under such regula-
tions and limitations as the Legislature may deem
expedient."
The court stated that words in a constitutional amend-
ment must be "given their natural, obvious, and ordinary mean-
ings as they are understood by citizens who adopted the amend-
ment." After analyzing Section 51-c‘ the court held:
- 118 -
Hon. R. H. Gory, Page 4 W-28)
II
. From the section and article of the
. .
Constitution amended as well as the language used,
no present right to aid and compensation is con-
ferred upon the class of persons named independent
of or without reference to the additional power
at the same time vested in the Legislature. The
right to receive aid and compensation is contingent
upon action by the Legislature. . . .
"The recitation of the objective and the
powers conferred and rights created by the amend-
ment make it obvious that the amendment is not
self-executing. . . .I'
Consequently, it is the opinion of this office that
Section 51-d, Article III, Texas Constitution, is not self-
executing. Therefore, no right to receive payment was conferred
by it upon the individuals of the class named and whatever pay-
ments are to be made are dependent upon legislation enacted pur-
suant to Section 51-d.
House Bill 12 may not be made retroactive to include
persons in the class named between the passage of Section 51-d‘
Article III, Texas Constitution, and the effective date of House
Bill 12. Section 16, Article III, Texas Constitution, provides:
"No bill of attainder, ex post facto law,
retroactive law, or any law impairing the obli-
gation of contracts, shall be made."
The court in Turbeville v. Gowdy, 272 S.W. 559 (Tex.
Civ.App. 1925, no writ hist.) defined a retroactive law as
follows:
"A retroactive law, in the sense of the
constitution, and in so far as is here appli-
cable, which prohibits such acts, is one made
that affects acts or rights accruing before it
came into force. A statute is retroactive
which takes away or impairs vested rights ac-
quired under existing laws, or creates a new
- 119-
Hon. R. H. Cozy, Page 5 (M-28)
oblisation. imposes a new dutv. or adoW ~a
new disabilitv in respect to transactions or
considerations already passed,,, (Emphasis
added.)
In Slate v. City of Ft. Worth, 193 S.W. 1143 (Tex.
Civ.App. 1917, no writ hist.), the court in considering a
statute which provided for a recovery for wrongful death
against a municipal corporation held:
"The cause of action which now exists
against a municipal corporation by virtue of
amended article 4694 arises exclusively by
virtue of this statute. A right of action to
recover damages on account of injuries causing
death did not exist under the common law.
"If it should be held that amended arti-
cle 4694 gives to plaintiffs the right to re-
cover damages on account of the injuries in-
flicted previous to the amendment, such hold-
ing would clearly impose a new obligation upon
defendant and attach a new liability in respect
to a past transaction. To such extent the
statute would be retroactive and invalid. Sec-
tion 16, art. 1, Constitution of Texas. But
it is insisted that the statute is remedial,
and as such may be retroactive without con-
flicting with the constitutional provision.
In this connection our views are most aptly
expressed in Hamilton County v. Rosche, 50
Ohio St. 103, 33 N.E. 408, 19 L.R.A. 584, 40
Am. St. Rep. 653, where this language is used:
"'This statute, it is contended, is re-
medial, and remedial statutes may be retro-
active. It is remedial, no doubt, in that
enlarged sense of that term, where it is
employed to designate laws made to supply
defects in, or pare away hardships of, the
common law, but not remedial in the sense
-120-
Hon. R. H. Gory, Page 6 (M-28)
of providing a more appropriate remedy than
the law before afforded, to enforce an existing
right or obligation. The statute under consid-
eration provided no new method of procedure:
it simply imposed upon Hamilton county an obliga-
tion towards these plaintiffs in error that did
not attach to the transaction when it occurred.
In attempting to accomplish this result the
Legislature transcended its constitutional
powers.'"
Consequently, it is the opinion of this office that
if House Bill No. 12 is made retroactive to the date Section
51-d, Article III, Texas Constitution, was passed, it will be
unconstitutional as a retroactive law. Section 16 of Article I,
Texas Constitution. Furthermore, since Section 51-d was not
self-executing and no right to payment exists at the present
time, any attempt to make House Bill 12 retroactive to the time
Section 51-d was passed, would also be unconstitutional as a
violation of Section 51, Article III, Texas Constitution.
SUMMARY
House Bill No. 12. of the 60th Legislature,
may not include volunteer firemen or custodial
employees of the state institutions in charge
of the criminally insane, since individuals in
these classes are not included in Section 51-d,
Article III, Texas Constitution.
House Bill No. 12 may not be made retro-
active to the date Section 51-d, Article III,
Texas Constitution, was passed. Since the amend-
ment is not self-executing, any attempt by the
Legislature to make House Bill No. 12 retroactive
would be unconstitutional as a violation of Sec-
tion 16, Article I, and Section 51, Article III,
Texas Constitution.
truly yours,
Hon. R. H. Cory. page 7 (M-28)
Prepared by Wade Anderson
Assistant Attorney General
WA:sck:ra
APPROVED:
OPINION COMMITTEE
Hawthorne Phillips, Chairman
W. V. Geppert, Co-Chairman
Malcolm Quick
Dyer Moore
John Reeves
Alan Minter
STAFF LEGAL ASSISTANT
A. J. Carubbi, Jr.
- 122 -