Ilkr~ A-~~OMNEY GENERAL
R-598
OF TEXAS
Auwrnw 1% -
PRICE DANIEL
*TTORNBY GENERAL
July 2, 1947
Honorable F. Eo Mitchell Opinion lie. V-293
County Attorney
Callahan County Res Construction of H.B.
Baird, Texas ‘. 501, Acts of the 53th
3ii,‘tiYi’ti%i al-
lowances of sheriffs
aad their deputies.
Dear Sirr
Your letter requesting an opfnlcn from this
Department on the above subject matter ie as Pollowsr
"House Bill No. 501,of the P¢ aes-
sioa of the 50th LegislatuM provides8 'The
County C~ssloimre Courts of thls..State.
are directed to supply and pay fop trans-
portation of sheplffs of theiF respective
counties and'thelr deputies to and from
points withIn this state, under one OS the
four (4) followtng SeCtiOns (Alternative
methods being set out In said sectlone).
"The questlon has arisen tith pespeot
to transporation to be allowed the sheriff
of Callahan County ae.to whether or not the
word *Qlreoted' used in the bill makes it
arandatorg upon the court to make such allow-
anoes for such transportation. The Caption
of the bill uses the word qautho~lclng ,
whloh might lndihate that it was not intended
to be lDmaatorg. Yaw op1IWin construing the
bill, as regarding whethero? not its qovls-
loas am maMatory will be appreciated.
The tltle of,House Bill 501, Bate of the 50th
Legielatwe, 1947, VeraonQ Session Law Service, page 357,
provllleB as followsr
‘AN ACT authmlclng County Commlesioners
Courts to compensate sheriffs and their depu-
ties for transporation or furnish adeqmte
. .
Hon. F. E. Mitchell - Page 2, V-293
transportation withlnWthe State; and de-
claring an emergency.
The body of the Bill need not be quoted be-
cause the portions material to this lnqulrg are stated
in your request.
We quote the ‘following fr* Sutherland on
Statutory Construction 3rd edition, Sec. 5003.
“Logically the events occ~?lng lnnnedl-
atelg prior to the enactment of. tha statute
ought to be a most lucrative sowce ior ft-
formation Indicative of the legislative :n-
tent embodied therein. Tiierefora, the
hletory~of the meamre during Its enactment,
that Is, during the period from its lntro-
ductlon in the legislature to Its enactment,
has generally been the first extrinsic aid
to which courts have turned In attempting to
construe an ambiguous act.”
With,the above rule in mind we searohed the
records of the Secretary of State )a office and found .the
f0110tiag racts relative to the enactment of H. B. 501.
Section 1 OS B. B. 501, as Introduced, read in part as
follows :
“Th8 county CommisslonePs courts or
this itate are authorlsed and directed to
. . .
On April 9, 1947, the House amended the bill
by 641etlng the words "and dirroted'. On A~F11 23, 1947,
the Seaafi amended the bill by striking out the words
*are authorized" and substituting therefor the words *are
eir00okd.” The bill vau then adopted b$ the Senate and
rrent back to the House. Thr &we concurred in Senate
anrenQlrnt8 dprii 23, 1947, ~4 xx01380ml 501 ~88 ii104
with& the OovoPnoP'8 elgnaturr May 14, 1947.
It is readily apparent that lt'was the Leglsla-
ture%4 'Lntation by aaoptlag the Senate’s amendment of
A 11 239, to ma$e t% ~ovlrlow of LB. 501 mandatory.
& woldr direct or dlrrated" are generally construed
to be mm5atoPgs 12 Words and Phrases (Porn. Ird.) 442,
466; 26 C.J.S. 1316.
Hon. F. E. Mitchell - Page 3, V-293
We deem It pertinent to quote the following
well settled rules of statutory constructiona
'+ Act should be given a fair,
rational; reasonable and sensible con-
stmction, conslderlng its language and
subject matter with a view o? aoocopllah-
lng the legislative Intent and puTpose.
In other words, construction shoti
comport with ccumuonsense and justice,
ana irrational conclusions or deductions
should be avoided." 39 Tex. Jtiup. 172,
173.
"Prlmarlly the intention and meaning
of the Legislature must be ascertained
from the lsnguage of the statute as a
whole, that is, from the entire context
of the law." 39 Tex. Jur. 176, 177.
"Doubtless a court will have regard
to the language wee in,& statute or pro-
vlslon,thereof In determining whet,her It
Is mandatory 0~ merely directory. Words
of permissive or mandatory character will
o~dina~lly be given their natural effect,
but when there 1s room for.constructlan
permissive words will be given a mandatory,
significance or mandatory words will be
held to be directory as appears to be neces-
sary to effectuate the legislative intent.
"The w0res Quay@ and DshaPl" a~0 Zre-
quently used interchangeably, and the use
of one or the other of these w0res in a
statute la not conclusive of the question
whether it ehould be construed a8 nranda-
tory or dlscretk8aary.~ Ordinarily, 'shall
or ‘must.’ Is of mandatory effect; but a
statute 1s eaetQaes held to be dlreotory
notwithstanding the use of theword *ah~4ll.~
Thus where no right'& benefit depbnda upon
its imperative usa, the word 'shall' Is
held to be merely dirsctorg au4 as havUag
been used in the sense of may.', On the
other hand, 'may' oPQinaPlly conmtss dia-
cretion or permlsrlan; and it VilL not be
treated as a w@re of command unless there
Han. F. k, Mitchell - Page 4 V-293
la something In the context of eubjsot-
mattep of the act $ indicate that it -8
wee in that stime. 39 Tex. SUP. 36, 37*
In view of the foFegolmg It Is our opinion
tint Eouee Bill 50116 mandatory, and the Comialesioners~
Couvt must determine under which subdivision of the Act
1x11 furnish the sheriff and his deputies transporta-
.
Ve wish to call to you attention t&M. liouee
B&l1 501 passed the lioumoriglnally April ~9 1947, by
112 Yeas and 4 Rap. It was amended hy the k!iate and
6884 Ap~ll 23, 1947 by 24 Year end 0 l%ys aad the
&ee aoacurree zl.n Se&ate Amendnest Appll 23, 1947, by
69._rssa and 52 ISame
Article III, Saction 39, of our State Coastltu-
tlon provldest
"Ho law paseed~bftbe Legislatum'ax-
cspt the general approprtclation act, sha11
take errect Or go into fbrcs unta aiawtt
day0 after the adjourmnt of tke sesslo~
at whLch It was enaated, unless In ease of
an emergency, which emergency must Abe q-
presred In a prqkmble or in the bod$ or the
aat, th# Leglalatua?e ahall, by a vo e or
two thirds a? alZ the members elected to
each Xi+e)e, othetiS6 dirdctf aaid vote to
be taken b y$ae and nays, and entered Won
the journe LB*
4oil. w, 2pe;p ca&eat&rrt" Mayi l+l!l &x. CP* IL 1165,
OHalar A~ealis hwld that a
aubatitute bill*clWi~reBt rrom the cd.@.amX bill a&b mot
plsood w 8 record oats showing conc~Wnc0 of two-thirds
of tk Legislate *be inerfectlve a8 an energency measure
and that the power to make an emergeflog meaeuPe muat be
la wlsed when the Legielatrr beoomer aware of the terms
aarrlta&ml in the bill a8 finally agreed upon and paseed,
Wrda ven wu folluuod by the Supremecourt of Texar in the
oan of Oeplar v9 @o&a, 129 Pu. 370, 102 S.Wu2d 173, where-
la the suprim Corult aaldr
*In the May Oar8 the Cotrrt oi bri&lnal
Ap eals held In iubrtanoe, that a substitute
ME, dlfferint frdSII,the original bill, and
Hon. F, E. Mitchell - Page 5 V-293
not passed by a PecoPd vote sho&ng ooa-
currence of two-thL.rds of the 'PegfslatuPe,
was lneffectlve as an dme~gencg measure;
and that the power to make an timergamy
measwe must be exerofsed when the Legfs-
latau-e becanes awaPe of the terns centaWed
fn the bill as finally agmed upon and
passed, The Court of Civfl Appeals follbwed
the rule annimnced by the Colrpt of C~fminal
Appeals In the May Case, and hePa that the
vote upon.Che amendments, and not the vote
upon the original bill, would cont;Po& e 0 0
“It is clear that the object of We
provfslon of ‘the Constftutfon above quoted
is that if a bill fs to take effect inmwdf-
ately on Its passage, it must contain an
emergency clause and such Mlf must be
passed by a vote of two-thirds of all. the
members elected to each house, an8 such
vote to be taken by yeas aud nays and
entered upOn the journals. Ue think the
rule ploescpibed by the Conatltutlon also
applies to amendments and repo&e of con-
ference comnlttees . . .”
In view of the fopego Houm EM11 501, Aots
of the 50th &egislatuFe, 19Q70 vf
9 i become e.ffective on
September 5* 194T7, (ninety da e,afte~ date atadjou~t-
nent of the 50th Legfslature. 7
SW
The pPotislow3 of H. Be 501 (50th
Leg.~, 1947, provfdfng the pIIB!mePof
ooaqtensatlon to sheriffs and thati depu-
ties for transportation, @Pe mandatory,
8. B. 501 not having passed wfth the
necessary 2/3 vote of each House, will
lmcome effective on September 5, 1947
(ninety day8 after date of ad,journme*~ of
the 50th Legislature.)
truly youre
GmL OF TBXAS
JR%djmrmv Assistant