Untitled Texas Attorney General Opinion

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HE A~-~oRNEY GENERAL OFTEXAS

Honorable Price Daniel Opinion ~~-163. Governor of Texas Capitol Station Be: Constitutionalityof H.B. 317, Austin,,Texas regarding the authority of the San Antonio River Authorityto take lands not heretoforeused but merely dedicated for ceme- Dear Governor Daniel: tery purposes. You have requested an opinion of the constitutionality of House Bill 317 of the 55th Legislaturerelating to the au- thority of the San Antonio River Authority consisting of Bexar and several other counties to condemn lands not heretoforeused but merely dedicated for cemetery purposes when such land is located in Bexar County, only. House Bill 317 amends Subdivisione of Section 3, Acts of the 45th Legislature 1937, Chapter 276, as amended, codified in Vernon’s as Article 8280419, Vernon’s Civil Statutes by add- ing the following provisionsto Subdivision e of Section 3: “. . . the power to condemn lends not hereto- fore used,,but merely dedicated,for cemetery pur- poses is hereby fully and specificallyconferred, in addition to the existing power to so condemn such land, if any, without any limitation except that in the case of land which is actually being used for such purpose it must be shown and found in the course of the condemnationproceedingwith respect thereto, which shall be conducted in the manner provided by General Law, that there i,sa practical necessity to take such land in order to exercise the powers and fulfill the functions of the District, and, further, in the case of land merely dedicated for cemetery purposes, that such land, even though not therefor~enecessary, will at least be convenientand useful to the District in the exercise and fulfillmentof its said powers and functions. Provided further that when lands actually in use as cemetery lands with graves thereon be condemned as provided above, said graves shall be removed to appropriatelocations, if re- quested by heirs of the deceased at the expense of

.^ Honorable Price Daniel, page 2 (w-163)

the condemning *. authority. .. conaemnation Provided however, that tne powers nerein granted in so far as cemetery lands are concerned,will be appli- cable only to Bexar County." The 45th Legislature,pursuant to the provisions of Section 59 of Article XVI of the Constitutionof Texas, created the San AntonioRiver Authority and prescribed its powers, du- tiersand functions. Although this Act constitutesa local or special law, such Act, being enacted under the specific author- ity of Section 59 of Article XVI of the Constitution,did not violate the provisions of Section 56 of Article III of the Con- stitution of Texas prohibitingthe enactment of local or special laws of various subjects. See -1 L e .W.2d 629 (1935); Lower Nechex Tex. 294, 167 S.W.2d lol;c;;9 3); ReclamationDistrict vs aW of Aransas Piss vs. ) 3); Atwood vs. WI1 cy , 284 S.W.2d 275 (Tex.Civ.App.1$?5,

In construingthe power of the Legislature to grant Districts, created pursuant to the provisions of Section 59 of Article XVI and Section 52 of Article III of the Constitutionof Texas certain pow;;; and rights, the Court, in Deason vs. Oranpe Countv Wat r ont and IpgprovementDistrict, 151 Tex. 29, 244 S.W.2d 981e(lt522),stated: "Both constitutionalamendments specify the circumstancesand purposes for which water control and improvementdistricts may be organized and the Legislatureis without power to add to or withdraw from the circumstancesand purposes specified. Arnold v. Leonard et al., 114 Tex. 535, at page 540, 27 S.W. 799, 802; Thompson et al. v. Kay et al., 2 Tex. 252, 77 S.W.2d 201, 214. ,12 "The Legislature can.onlv erant the distric uowers -rights as come wit%&--- tion or nrovisions of th art1 1 s f the Constiu- ." s(Bmpha%: o:rs) Thus, while the Legislaturemay create by a local or special law various river authorities,and prescribe their powers and duties without violating the provisions of Section 56 of Article III of the Constitutionof Texas, it cannot enact a local or special law which deals with a subject specificallyprohibited by its provi- sions. As illustrativeof this principle of law, the Legislature

Honorable Price Daniel, page 3 tkf+l63)

may by a local or special law create various courts and pre- scribe their powers functions and duties pursuant to the pro- visions of Section 3 of Article V of the Const~itutlonof Texas without violating the provisions of Section 56~of Article III; Lvtle vs. HalfP 75 Tex. 128 12'S.W~., 610 (1889);Harris Countg gs. Crooker, 113 Tex. 450 2ft8S.W. 652 (1923)*~ Tom Green-C.%- vs. ~, 195 S.W;2d 845 (Tex.Civ.App.194&J., Travis Countv vs. Matthews, 235S.W.2d 691 (Tex.Civ~.App. 1950, error ref. n.r.e.1. However, the Legislature cannot enact a local or special law authorizingor empaneling Grand or Petit Juries since it is specificallyprohibited by the provisions of Section 56 of Article III of the Constitutionof Texas. Rios vs. State, 288 S.W.2d 77 (Tex.Crim.1955). Section 56 of Article III of the Constitutionof Texas prohibits the Legislature from enacting any local or special law "relatingto cemeteries,grave-yardsor public grounds not of the State;". Since House Bill 317 of the 55th Legislatureamends Article 82804.19, Vernon's Civil Statutes, so as to specifically authorize San Antonio River Authorityto condemn lands not here- tofore used but merely dedicated for cemetery purposes when such lands are located only in Bexar County, it is our opinion that House Bill 317 constitutesa local or special law relating to cemeteries and is,therefore,uuconstitutional, being a violation of the provisions of Section 56 of Article III of the Constitu- tion of Texas.

House Bill 317 of the 55th Legislature authorizing the San Antonio River Authorityto condemn lands not heretofore used but merely dedicated for cemetery pur- poses is unconstitutional being in violation of Section 56 of Article III of the Constitutionof Texas, prohibit- ing the enactment of any local or special law relating to cemeteries. Yours very truly, WILL WILSON Attorney General of Texas

JR:pf:wb Honorable Price Daniel, page 4 Uw-163)

APPROVED: OPINION COMMITTEE H. Grady Chandler, Chairman James N. Ludlum C. K. Richards J. C.:Davis, Jr. APPROVEDFOR THE ATTORNEY GENERAL BY: Geo. P. Blackburn