Untitled Texas Attorney General Opinion

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