July 6, 1951
Ron. Allen Iiarp~ Opinion Ro. v-1201
District Attorney
100th Judicial District Re: Constitutionalityand
Childress,Texas. mandatory or dlscretion-
ary character of Senate
Bill 444, Acts 52nd .&eg-
islature, authorizing
appointment of a steno-
grapherand provision of
office space for the Ms-
trict Attorney of the
100th Judicial Mstrlct.
Dear Sir:
Reference is made to your request in which you
ask the following questions:
1. Is Senate Bill 444, Acts of the
52nd Legislature,1951, constitutional?
2. Are the prOViSiOnS Contained there-
in mandatory or discretionaryon the part of
the commlssioners~courts involved?
The bill appears to be in proper form in every
respect. Section 1 of the bill provides:
'The Mstrict Attorney of the 100th
Judicial District of Texas is hereby au-
thorized to appoint a stenographerwho shall
receive a salary not to exceed Twenty-four
Hundred Dollars ($2400) per annum. Said
salary Shall be fixed and determinedby
the District Attorney of said Judicial Dls-
tricts, and the District Attorney shall
file with the ComalsslonersCourt of each
County in said District a statement speci-
fying the amount of salary to be paid said
stenographer. Said salary shall be pald
monthly by the CommissionersCourt of each
County comprisingsaid District in the man-
ner and on the same pro ratio basis as that
Hon. Allen &rp, page 2 (v-12Ol)
contained in the order of the District
Judge of such Districts for the payment
of the salary of the off;cial shorthand
reporter.
"The CommissionersCourt of the County
in which the District Attorney resides shall
furnish the District Attorney with adequate
office space and the supplies necessary to
the efficient operation of said office."
Section 56 of Article III, Constitutionof Tex-
as, provides In part:
'The LsgislatUreshall not, except as
Oth8rWiSe provided In this Constitution,pass
any local or special law, . . .
a. . .
"Regulatingthe affairs of counties
cities, towns, wards or school distrlctsf*
It Is apparent that Senate Bill 444 falls with-
in the classlflcatlonof a local or special law. To be
invalid as such, it must come within the provisions of
Section 56 of Article III of the Constitutionof Texas
Section 1 of Article V, Constitution of Texas,
prOVid8S:
"The judicial power of this Stat8 shall
be vested in one Supreme Court, in Courts of
Civil Appeals, in a Court of Criminal Appeals,
in District Courts, in County Courts, in Com-
missioners Courts, In Courts of Justices of
the Peace, and In such other courts as may be
provided by law.
*The Criminal District Court of Galveston
and Harris Counties shall continuewith the
district jurisdictionand organizationnow
existing by law until otherwise provided by
law.
Hon. Allen Harp, page 3 (V-1201)
"The Legislaturemay establish such
other courts as it may deem necessary and
prescribe the jurisdictionand organization
thereof, and may conform the jurisdiction
of th8 district and other inferior courts
thereto."
The court, ln Jones v. Anderson, 189 S.W.2d 65
(Tex.Civ.ADD.1945. error ref.). upheld Article 52-161,
V.C.C.P., %eating7the office of Criminal District At--
torney for Bexar County. Among other things, the act
provided for the appointment of assistant district at-
torneys, investigators,and stenographers,and fixed
their salaries. The court stated:
"SeCtiOn 1 of said Article 5 clearly
authorizes the Legislature to enact just
such a bill as House Bill 131, now known
as Article 52-161, Vernon's Code of Crim-
inal Procedure.
". . .
"Appellantfurther complains that the
Act violatesSectIons 56 and 57 of Article
3 of our constitutionin that it attempts to
regulate the affairs of a county by a local
or special law. Ye overrule this contention;
the first sentencerin S8Ctlon 56 reads as fol-
lows: 'The L8glslature shall not, except as
otherwise provided in this Constitution,pass
any local or special law.! Section 1, Artl-
cle 5, of the Constitutionauthorizes the
;;;ctF;tpof just such an act as Article 52-
. and Is therefore made an excep-
tloi in thi'very first sentence of Sec. 56,
Art. 3, of the Constitution. . . ." (189
S W.2d at 66.)
In Harris County v. Crooker, 224 S W. 792 (Tex.
Civ.App. 1920),,affirmed 112 Tex. 450, 248 S.W. 652(1923),
the court upheld an act, special in nature, vhlch changed
"the territorial limits of the criminal jurisdictlon$
district composed of Galveston ?nd Harris Counties 80 as
to include Harris County alone, and which provided for
the compensationof the "district attorney for said court."
In holding that th8 Legislaturederived its authority to
pass such an act from Section 1 of Articl8 V, the c0Ul-t
said:
Hon. Allen Harp, page 4 (V-1201)
"We think ft should be held that, when
the people by said section 1 of article 5
SpeCifiCallyConferred upon the l8giSlature
power to enact a speoial law creating and
providing for the organizationof the court
referred to, they intended the power to in-
clude everythingnecessary or proper to be
done to that end, and that one of the things
necessary and proper to be done was to pro-'
vide compensationfor those who were to con-
stitute the court. Of course, If that was
the intention of the makers of the Constitu-
tion, they did not intend that the inhibition
In section 56 of article 3 against spectal
laws regulating the affz$rs of countfes should
be applied to the case. (224 S.W. at 796.)
The court, in Neal v. SheDDard, 209 S.W.2d 388
(T~x.c~v.A~~.1948, error ref ) upheld Article 199-124,
V.C.S., a special law for the'144thJudicial District,
composed of Gregg County. Among other things, the act
authorized the appointment of assistant district attor-
ney*, an investigator,and a stenographerfor the Crim-
inal District Attorney of the 124th Judicial District
and fixed the salaries to be paid to each.
In view of the foregoing, it is our opinion that
Senate Bill 444, Acts 52nd Leg., 1951, does not violate
Section 56 of Article III, Constitutionof Texas, and there-
fore is constitutional.
In 2 Sutherland,StaCiutory
Construction (3rd Ed.
1943) 216,,it is stated: 8
‘Although In every case the legislative
intent should control in determiningwhether
a statute or some of its provisionsare manda-
tory there are, nevertheless,certain forms
and certain types of statutes which generally
are consideredmandatory. Unless the context
otherwise indicates the use of the word ‘shallt
(except in its future tense) Indicates a man-
datory Intent.‘I
In Elms v. Glles, 173 s.W.28 264, 268 (T~x.CIV,.
App. 1943, error ref. w.0.m.) the court, in COnStruiIQan
act to determinewhether It was mandatory or permissive,
stated:
Hon. Allen Harp, page 5 (v-1201)
” By the use of the word 'shall'
in each of-the provisions above quoted, the
Act makes it mandatory that such notices be
given . . ."
The word "shall" is used in Senate Bill 444 in
each Instance wherein the duties of the commissloners~
courts are prescribed. In view of the foregoing, it is
our opinion that Senate Bill 444, Acts 52nd Leg., 1951,
is mandatory in regard to the provisionsrelating to the
duties of the commlssloners'courts involved.
SDMMARY
Senate Bill 444, Acts 52nd Leg., 1951,
authorizingthe District Attorney of the
100th Judicial District to appoint a steno-
grapher, Is constitutional. The provisions
of the act relating to the duties of the af-
fected commissioners'courts are mandatory.
APPROVED: Yours very truly,
J. C. Davis, Jr. PRICE DARIEL
County Affairs Division Attorney General
JeSS8 P. Luton, Jr.
Reviewing Assistant
Everett Hutchinson By fsi.zci&l&
Executive Assistant Assistant
Charles D. Matthews
First Assistant