Untitled Texas Attorney General Opinion

WILL WILSON A-lTOXCikY ‘3-E-L March,9, 1959 xr. sto.?eg.x. MimA’,’ Chairman. Texas State Board ‘ofRegistration for Public Surveyors Auet In, Texas Opinion No. W&6? .A&: Whether Section 3 (c) of the Registered Pub- lic Surveyors Act .of 1955 1s void bec.ause -It.embraces a subject, not expressed in the title, as required by Wctlon ‘35,Article III of the Texas Con- Dear Hr. ‘N&as:, _, stitutlon. You have requested our opinion on whether .$eot$on 3 ‘~,(c).of the Reglsterqd Public Surveyors Act of 1955,~ (A&J,. 54th Legislatura,’Re$uiar Session, 1955,’Chaptk- 328, page ,864,qodlfiqd or Arttale 5282a, V.A.C.S.) is void ‘because It eatbracesa subject not exprerred .lnthe title as re- quired by Section 35, Article III of the Teus Constitution. . : Th’2title of such Aot ii a$ follows~: “An Ao$ creating a’State Board of Re&stration for Public Surveyors; pro- viding forregistration of pub119 sur- veyors,;ddrining the taras ‘Registered Public Surveyor., ’ ‘Public ‘Surveying ~8tid~Publlodurveyor, ’ ‘person,‘~‘,BoBrd, ’ dent8 of Texaq; prescribing ~quallrfoa- ‘tlons for membership on Board; provldlng method of appointment and prescribing term 0r orrice,;defining a quorum 0r sald Board;‘provlding for and preaorlblng oath Iof offioe iandthe manner of filling . . Mr. Staley W. Mims, page 2 (~~-56s). vacrncles, as well as removal for cause; prescribing the powers and duties of the Board; providing for times and places of meetings of Board; providing for removal of the.Chairman; authorlzing.':the Board to adopt rules and regulations; authoriz- ing employment of Executive Secretary, restricflng salaries to those comparable in'other departments of.State; providing that no ~expenseof the administration of the.'Actshall .everbe charged against the Oenerol Fund of the State of Texas; prescribing the fees to be received by the Board; outlining qualifications for riglstratlon under the Act; providing . for payment of annual registration fee and penalty for delay; prescribing method of revocation ,andre'lssuanceof certlfl- catec> providing penalties for violations; providing for the dl,spositlonof money . collected under the Act; providing a saving pnd severable clause; repealing laws in conflict; and declaring an emer- gency. " (Emphasis added) Section 3 of th2 body of the Act'tiithwhich w.eare here concerned reads as ~follows: A "Sec. 3.~ The proiislons'of thls~' Act shill not apply to any of the follow- ing: !'(a)County Surveyor acting In his official capacity as ,authorlzodbjrlaw. "(b) Licensed State LaridSurveyor when actfng.ln his official capacity as authorized by law. when "~;~tR~glnsteredProf'esslonal .?%ninear P 3. I g his profession as auti:orix&d by law. '"(dj ofricer of i state, county, city or othey polit$cal subdivirlon whose offi6lal. duites.lnolude land atirveyingwhen acting In his official oapaclty. Mr. Staley, W. Mims, Page 3 (w-569) “(e) BQutY, assistant or .empl~oyee of any .person exempted from'.theprovisions of thld Act by subsections (a); (b);~and .I (c) of this Section whitiact&g und,erthe ' direction and supervision of such exempted person. "(f) Assistant or employee of*any Public Surveyor registertd 'underthe provislons..ofthis Act while aqtlng under the direct'ionmd supervlq$on'of such Registered Surve'yor." (RtIphasls added.) You aeek to be advtsed iP'\rRegistered Professional Engineer la~exemptftim thenQUrviey of.suah Act when.he Is practiolng his profession as authorized by,,~lav,(wheri her Is performing engineering duties pur?uan.,to~a Certificate of Reglstratlon.as provided by Article 32711; Verrioliis Civil $tatutes):.orwhether such eTamp$lon~contained in _ Seotlon 3(d) of.thd Survbyors'Aot-J.s.'void.. : In Attorney,'Oe~n,~ral'~s~:~:~n~.on i?b.-.WW~428.- {:i9!$i13~ we were of the .oplnlori~tha~,is,& ti*tter..of<,co bttic.&i& .Register&J ~ofess16na~ii$ngin,~~rs~+tiL oxeinp+ ,~P t e.,ct --a%+T- her'eunder.conslderatlotiwhln~thl'tigineer'Ydid:'boundary surveying while praotlc+ng hi6 pooFession.as a'u$hoSrzed' by law. ft Is still our +plnlon that such is the proper oon&ructlon of the Aot. However, the questlon.ralsed were, and'nat ticachedo.rconbidered,In W+&28,~ is whether the exempt$op as so construed.ls.eff~ct~ire:oy.wh'etner.the attempted exemption co&raven& the Cofiatitutlonbf~Texas, and ls,.therefore, void...' Section 3; of Article III of the Condtittitionof Texas provi'desi-h.part: "Nb'blll,~ . '. . shall.; contain:mwe '~ than oye‘subjeot, which shall be ,expresped~, in itn title. Buttif any subj.ectshall'be embraoed in an ret, which shall not be ex- pressed lfitAc~$ltle, suah act shall be ~vold only as .to~60muoh thereof, a8 shall not be so expressed." Mr. 'Staley W. Mlms, page 4 (WW-$9). In our opinion, l+ls question Is aontrolled by Ward Cattle and Posture Company v."CarpenBer (19X8), 109 T 105 200 m 21, wherein th SupruaZiCour'tof T%zas, ipeaklni through Chief Justlze Phllllppb, said in part: . . "The purpose of the constitutional provision in respect to the-~tltleof leglslatlvh acts Is well understood.. It Is that-by means of thl title, the legislator may be. peasonably'apprlsed of the,soope of the bill so that surprl-seatidfraud in leglblatlon may be prevented. True, according to previous decisions of this d'ourt,if the title had only declared that the urpose of the Act was to amend Article 7 if35 of the Revi.sedStatutes, it -wotild have. supported an rot amending the'...'.' lrtlble so a8 to omit Matagarda.County. :. But with this title announolng, as It does,.that the article irarto be~amended : in a~partloular way, no legislator would ~sonablu have oonoelved that it was to be amendeh in an6ther.m~ exactly contrary'.. to'that stated. This Is a oa8e lllustrat- and #&zloe of the constl- .. (Bnphasls added.): Alao ace HamIllion v. St. Louis Railroad Company, llj Tea&i, ‘283 S.W.m, whloh reads lfipart as ,follows: A caption which declares a purpose'& &end a statute by adding" '~theretoa clause creating liability for Injuries resulting in death when caused j by.the negligence of corporations, their agents, or servants cannot be regarded otherwire than as deceptive in so far"as the amendment may se,e&to &eclare a~llablll- ty for deaths ocaaaloned, not by the negll- d gence of corporations, their agenta-or se*- vants, but fop dcaths'ocoasloned~by the i negligence ,of persons, thelr,agents or.',: servants." + Mr. Stalejr W. 'Mlms,'page 5 (WW-56~9). Also see .39 Tex,Jur. 100, :tilch r,eadt%lnpart as followa: "Whether + title Is comprehensive or restricted, ezpressed In-gene~ra& terms or with,particularity, it must bC In agreement and conformity, qnd not at 'variance.,with the,subjeCt pf the legislation...... '* ,~ "A title Is deceptive, fal.sr'or misleading if It disguises the tru,e pufiposeof ~th& act and Imports a sub-,. ject different from that ~to which the qct relates. And.whether or not a.: title &ate8 the gqneral purpose of the act, It le mlaleadlng 1,fIt states specific purposea~In such manner aa to. concea,,1other purposes not stated. 5 ~...' @nphasls.added.) :,~ '. .Tti 'irnqld i. Lion&d, 114'Te.x.535; $72 S&.'799,- the Court .s.&id,.~ln; part: 11 ‘. ~'oa~tlon coniseal&g'the true .purpose'& ; 'statute,and statl&a+ a& .together,dlstlnot and foreign purpose, ; 1-knecessarily-deceptive, and cannot be .. suatalned as complying wlth Sect~lon35 of Article 3 of,'theConstitution;" In ~Attorney Qeneral'8~Opinion-No. O-5189, (19&j), In holding that the.statute thereunder consideration was Invalid, It was said that: It Is not so written as to put i ieglslator on notice that one of thespecific provisions of the Act (and one ntw.to,$he law of Texas), pro- hibits the use of a form forr,eoordlng blntHs..whlchmay Indicate that any such birth waa.lllegltSmate.U -. By Sdctlon 3 of 3h.e Aot;,three distinct groups of persons i.n~ o.fflolalpoaltlons, ,nqne.Iy,, County Surveyors, L1censedSkt.e Land.~Surveyore,,and officers of a State, COUntyI City or other polltlcal~~ubdlvlslon, when acting Mr. Stale;X.W. mms, page 6 (w-569). In their offiolal.capaoltles,~are made exempt from the Act. Those. exemptions, embraced In ~the Ao.t,are apparent- ly "expre8med in the title." Subsection (c) of Section 3 of the Act undertakes to 'exemptan additional group or class, namely, a "Registered Professional Engineer when practicing his profession as authorized by I&w." Obviously, a profeasloo.~.englneerIs not a person ln'an."offlolal position" solely by force of being a professional engl:.leer; and when prrctloinghis profession ,as "authorized by‘law" he-is not aotlng in an off.lolalcapacity. He Is acting only In a professlonal.capaoity, even though he may be lloensed and @Whorlsed to so act by the stututes of this State. Such professional engineers are not embraced In the category of !'personsIn official positions" as ex- pressed In the title of the Act, In our opinion, Nowhere does the title bf the $Lct intimate or suggest that the Act shall notapply to a registered engineer when prac- ticing his ,professlon' asauthorized by law. Irxour opinion, the tltJ.e.undertakesto specify by express language the^"persons" who are exempt from the provisions of the Act. Such~speciflcatloh as expressed in the title Is limited to certain persons holding official positions. Conse'quently the exemptions embraced In .Scctlon3(a), (b) and (di are in harmony with the title; but the exemption embraced In Section 3(c) of the Act is not In harmony with the tltle~and Is not expre~ssedIn the title.. Therefore, In our oplnlon,~~Section3(c)Iof the,Act Is void, by force of Section 35, Article III of the Con- stitution of Texas. Attorney General's Opinions WW-428 (1958) and ww-115 11957) are hereby overruled and withdrawn. .:;l :.. .. .SuMMARY. Section 3(o) of the Registered Publlh Surveyors Act of 1955 (ArtloIe 5282a, v.C.S.) IS void beoause it attempts to 'exempt Registered ?rofesslonal Engineers .from the provisions Of the Act, when such Is not ,MS-.3taley W. Mims, page 7 (W-569). expressed in the title as required by Section 35, Article III of-,theTexas Constitution. Attorney General's Opinions Nos. WW-428 (1958) and WW-115. (1957) .are overruled and Gi!.hdrati,; Yours very truly, WILL WIISON ' AttornCy General of Texas Tom.1. McF&rllng Assistant u TIM:ol,'mfh .APPRGVEIX. .OPINION ,COMMITTEE Geo. P. Blackburn, Chairman' Marietta Pay@ :,' J. C. Davis, am.'~ John L. Eaten '.'.. REVIEWED.FORTRE ATT&NEYGENEi& BY: W. V. ffEPPE?T