Untitled Texas Attorney General Opinion

Harch 27, 1951

Hon. Bogera gslley, Chairman Senate Uater Rights, Irrigation and Drainage Comnlttee 521.MLegislature Au&In, Texas opinion Ro. v-1158 Be: Conetltutlonallty of Section 24a of ‘Senate Bill Ho. 28, 52nd Leg- islature, the ?urfape Water Code, exempting any stream subject to an international treaty from certain vater’ap- propriatlon requlre- Dear Sir: ments In thle bill. Your request Sor the opinion of this office Is a8 follovst “As Chairman of the Senate Water Rights, Irrigation and Drainage ComUttee, I respect- fully request your opinion concern a pro- posed amendment to Senate Bill Ho. “ft 2 now pending In the Senate. ,Attached is a copy of this bill and the suggested amendments for your conelderatlon. “The Comnittee desires to k~ov whether or not an amendment to thls’blll, by lnaert- lng a section to be knovn as Section 24a pro- viding that the provlsiona of Sections 22, 23 and 24 of the bill shall not apply to any stream or portion thereof which is subject to a treaty between the United States of America and any foreign nation, Is aonatltutlona1. “The purpose of this amenmnt Is to 6x- ’ elude the waters of the Rio ffrande River and lta tributaries belov Fort Qultman from the provisions of these section8 of the bill be- cawe of the existence of the treaty between the United Statea and the Republlo of I~OXICO, known as the 1944 Water Treaty; Seotlon 9b

Hon. Rogers Kelley, page 2 (v-1158)

whereof provides that befare ._ any _ additional _ __ water may De dlvertea on tne American side of the river in excess of that which was be- ing diverted at the time the treaty vas adopt- ed the International Boundary Commissioner must certify its avallablllty. It is thought by the proponents of this amendment that be- cause of the existence of this treaty which restricts the diversion of the waters of the Rio Grande the exemption of those waters from..'~,.i the provisions of the above named sections would not be in violation of any constltu-~ ticnal provision. "The Committee desires your opinion as to whether or not the insertion of said Sec- tion 24a will render the bill, or any of its provisions, tomany extent invalid, and if so to what extent." The constitutional provision applicable to your question is Section 56 of Article III, Constitu- tion of Texas, which provides in part that " in all other cases where a general ',' law'c& be made applicable, no local or special law shall be enacted. . . -" In construing the above provision of the Con- stitution, It has been held that "It is the sole province of the Legislature to determine whether a general law can be made applicable." Lamon v: Ferguson, 213 S.W.28 86 (19481, and cases cited therein. It is our opinion, however, that the,amendment in question Is a general law and not a local or special law within the meaning of Section 56 of Article III, Con- stitution of Texas. In Reed v. Ro n 94 Tex. 177, 59 S.W. 255, 257 (1goo), the coup - cons dered the validity of an act pro- viding that in a certain section of the State the school lands which have been leased shall not be subject to sale during the existence of the lease. In construing Sec- tion 56 of Article III, it was stated: "This brimus to the second questron, is it a local law, within the meaning of section 56 of article 3 of the constitution? Local it Is in the sense that it applies to

Hon. Rogers Kelley, page 3 (V-1158)

the lands of the state situate in a partlcu- lar locality. But, ln our opinion, it is not local within ._. the meaning . - of the term ae uaea in our con8tltutlon. l3-m question as to what constitutes a local law in the lat-, ter sense came before UB at the last term of thla court, and it VPS there held that the act of 1897, restricting the compensation of certain offloers In a designated class of counties In the state, and ccmmonly known a8 the ‘Fee Bill, l was not a local lav. Clark v. Finley, 93 .%3x. 173, 54 S .W. 343.. The effect of that decision was the holding that the mere fact that a law was made to oper- ate upon certain counties of the state, and was not operative as to others, did not make It either a local or special law; and It seems to us that the point there decided 1s deze;te of the question now under consid- . While the determination of the counties in which the law should have ef- fe.ct depended upon the population of the respective counties of the state, it vaa dlatlnotly aa local in Its operation a0 the orovialon the validity of which 1s nov in- Solved ln thle suit. -It has been well said that Ia law ia not local that operates upon a subject ln which the people at large are 3ntereated. 1” .’ (Rmphasl~ added. ) In Stephensen v. Wood, 119,Tex. 564, 34 S.W.2d' 246, 249 (&mm. App. 1931) the court was considering the validity of an act to make’it unlavful for any y&son to use a seine net or other device for catching fish or ahrlmp ln numerous bays, streams, bayous, kud eanale,of the State and specifically exempted from lta provlaiona Watagorda Bay, San Antonlo Bay, part of Aransaa Bay, and a part of Corpue Christ1 Ray. It vas contended that by exoladlng these waters from the provisions of the act and not advertising same vas in violation of Sectiona 56 and 57 of Article III, Constitution of Texas. After disc cussing at length the holding In Reed v. Roman. 6uDca, the oourt stated: %nder the above authorities we hold that the act ln question Is a general and not a local or special law wlthln the meaning of sectlona 56 and 57 of article 3 of our state Constitution. The statute operates upon a subject-matter in which the people at large

Hon. Rogers Kelley, page 4 (v-1.1.58)

are interested; it applies with equal force to all persons everywhere; and the fact that It only operates in certain localltles grows out of the subject-matter. To say that the Legfslature cannot enact laws to protect the fish along a certain part of the coast line of the state because such a lav would be local or special would be to say that all such regulations must apply to every part of the state. A regulation protecting fish In the coastal waters vhich la made to apply to the entire state would be an Idle and use- less thing, as most of our counties have no coast llne at all. Also the protection of fish and their spawning grounds along any part or all of the coast line of the state is a matter of general public interest. FOP the reasons stated, Ye hold this to be a general law.” Also, in McGee Irrlxating Ditch Co. v. Hudson, 85 Tex. 587, 22 S.W. 967 (1893) th e Supreme Court h Id that an act providing that una&ropriated water of Ay river or natural stream within the arid Rortlons of the State in which by reason of insufficient rainfall lrrl- gation is necessary for agricultural purposes, may be diverted from its natural channel for Irrigation, was not a local or special lav within the meaning of the Constitution. 54 S.W. 343 (18 ;:2%;)g1 T::ll. Tex. 1931). In the instant case, the amendment appllea to the waters of the Rlo Grande River, a subject in which the people at large are Interested. Moreover, this la the only river separating the State of Texas from a foreign country. Thus the amendment does not exclude any waters or persons similarly situated from Its pro- visions.

Section 24a of Senate Bill Ro. 28 of the 52nd Legislature, which excludes the waters of the Rio Grande River from the provisions of the act, is not a local or special lav within the meaning of Section

.HOIl. Roger6 Kelley, page 5 (V-1158)

56 of Article III, Constitution of Texas. Reed v. Ropbll 94 T;ti t'f7i059S.W. 255, 957 119001; Cde@ma 554; 34 S.W.2d 246 (C01110: Lfmcn v. Feruuaon, 213 S.W.2d 86 Elv.App. 1948). APPROVED% Yours very truly, J. C. Davis, Jr. PRICE IULWIRLI Couaty'AffalraDlvlalon ,AttorneyCieneral Jesse P. Lutcn, Jr. Rhvlering Assistant Charles D. lbthewa BYkLL4.L Bruce Allen First Assistant Qalatant