Untitled Texas Attorney General Opinion ( 2002 )

OFFICE OF THE ATTORNEY GENERAL . STATE OF TEXAS
JOHN CORNYN
May 6,2002
The Honorable Phil Garrett Opinion No. JC-0500
Palo Pinto County Attorney
P. 0. Box 190 Re: Constitutionality of racial profiling statute
Palo Pinto, Texas 76484 under article III, section 35 of the Texas
Constitution (RQ-0467-JC)
Dear Mr. Garrett:
You ask whether Senate Bill 1074 of the Seventy-seventh Texas Legislature, relating to the
prevention of racial profiling by certain peace officers, is unconstitutional for failure to meet the
“title” or “caption” requirement stated in article III, section 35 of the Texas Constitution.’ See Act
ofMay 24,2001,77th Leg., R.S., ch. 947,200l Tex. Gen. Laws 1900 (codified at TEX. CODECRIM.
PROCAM. arts. 2.131-.138,3.05 (Vernon Supp. ~OO~);TEX.EDUC. CODEANN. 5 96.641(j) (Vernon
Supp. 2002); TEX. Oct. CODE ANN. $0 1701.253(e), .402(d) (Vernon Supp. 2002); TEX. TRANSP.
CODE ANN. 8 543.202 (Vernon 2002)). Senate Bill 1074 does not violate the title requirement in
article III, section 35 of the Texas Constitution.
Provisions enacted by Senate Bill 1074 provide that “[a] peace officer may not engage in
racial profiling” and define “racial profiling” as “a law enforcement-initiated action based on an
individual’s race, ethnicity, or national origin rather than on the individual’s behavior or on
information identifying the individual as having engaged in criminal activity.” TEX. CODE CRIM.
PROC. ANN. arts. 2.13 1, 3.05 (Vernon Supp. 2002). The bill establishes recording and reporting
requirements and education requirements for police chiefs and police officers. See id. arts. 2.132-
.138; TEX. EDUC. CODE ANN. fj 96.641(j); TEX. Oct. CODE ANN. $3 1701.253(e), .402(d); TEX.
TFUNSP. CODE ANN. 8 543.202. The title of Senate Bill 1074 provides as follows: “An act relating
to the prevention of racial profiling by certain peace officers.” Act of May 24,2001,77th Leg., R.S.,
ch. 947,200l Tex. Gen. Laws 1900. You argue that the title does not comply with article III, section
35 of the Texas Constitution and that Senate Bill 1074 is therefore unconstitutional in its entirety.
Article III, section 35 of the Texas Constitution provides as follows:
(a) No bill, (except general appropriation bills, which may
embrace the various subjects and accounts, for and on account of
which moneys are appropriated) shall contain more than one subject.
‘See Letter from Honorable Phil Garrett, Palo Pinto County Attorney, to Susan Denmon Gusky, Chair, Opinion
Committee, Office of Attorney General (Nov. 15,200l) (on file with Opinion Committee).
The Honorable Phil Garrett - Page 2 (JC-0500)
(b) The rules of procedure of each house shall require that the
subject of each bill be expressed in its title in a manner that gives the
legislature and the public reasonable notice of that subject. The
legislature is solely responsible for determining compliance with the
rule.
(c) A law, including a law enacted before the effective date of this
subsection, may not be held void on the basis of an insufficient title.
TEX. CONST. art. III, 5 35.
Subsection (a) of article III, section 35 was amended and subsections (b) and (c) were
adopted by the voters on November 4,1986. See Tex. S.J. Res. 33,69th Leg., R.S., 1985 Tex. Gen.
Laws 3363; “Constitution of the State of Texas Amendments Adopted in 1986 and 1987,” 70th Leg.,
2d C.S., 1987 Tex. Gen. Laws 1021. Before the 1986 amendment to article III, section 35, the
caption requirement was enforceable by the courts, which could declare void any portion of an act
not encompassed in its caption. See TEXAS LEGISLATIVE COUNCIL, ANALYSES OF PROPOSED
CONSTITUTIONAL AMENDMENTS lo- 11 (1986) ( amendments appearing on the November 4, 1986,
ballot); TEXAS LEGISLATIVE COUNCIL DRAFTING MANUAL 5 (Oct. 2000); see also Exparte Crisp,
661 S.W.2d 944,947 (Tex. Crim. App. 1983) (en bane). A caption requirement is included in many
state constitutions in reaction to the “Yazoo Act” of 1798, in which a Georgia legislature, under the
guise of an act for the payment of “late state troops,” made large land grants to private persons. See
Exparte Crisp, 661 S.W.2d at 951; 1 GEORGED. BRADEN et al., THE CONSTITUTIONOF THE STATE
OF TEXAS: AN ANNOTATED AND COMPARATIVE ANALYSIS 169 (1977). The purpose of the title
requirement was to give notice to the public and the legislature of the subject of the bill. See TEXAS
LEGISLATIVE COUNCIL, ANALYSES OF PROPOSEDCONSTITUTIONALAMENDMENTS 10 (1986). This
requirement was particularly important when bills were handwritten and copies were not readily
available, but the purpose of giving notice is now better served “by the abundance of information
available about each bill, including multiple printings, bill analyses, and fiscal notes.” Id. at 11. The
amendment to article III, section 35 “provide[d] that the legislature is solely responsible for
enforcing the rule and prohibit[ed] the invalidation of past and future enactments on the basis of a
defective title.” Id. at 10. Judicial decisions holding a law unconstitutional for a defective title do
not apply to article III, section 35 as it now reads.
The Texas Supreme Court and the Texas Court of Criminal Appeals have both addressed the
application of article III, section 35 to titles since the 1986 amendment to that provision. The Texas
Supreme Court has stated that “laws will no longer be struck down because of a deficiency in title,
no matter how egregious.” FordMotor Co. v. Sheldon, 22 S.W.3d 444,452 (Tex. 2000). The Court
of Criminal Appeals has stated that, as a result of the amendment to article III, section 35, “this court
no longer has the power to declare an act of the legislature unconstitutional due to the insufficiency
of its caption.” Baggett v. State, 722 S.W.2d 700, 702 (Tex. Crim. App. 1987) (en bane).
Accordingly, no enactment of the legislature may be held invalid under Texas Constitution, article
The Honorable Phil Garrett - Page 3 (JC-0500)
III, section 35 for a deficiency in title. Senate Bill 1074 is not unconstitutional for failure to meet
the title requirement stated in that provision.
SUMMARY
No enactment of the Texas Legislature may be held invalid
for a deficiency in title under article III, section 35 of the Texas
Constitution, as amended in 1986. Senate Bill 1074 is not
unconstitutional for failure to meet the title requirement in article III,
section 35 of the Texas Constitution.
Attorney General of Texas
HOWARD G. BALDWIN, JR.
First Assistant Attorney General
NANCY FULLER
Deputy Attorney General - General Counsel
SUSAN DENMON GUSKY
Chair, Opinion Committee
Susan L. Garrison
Assistant Attorney General, Opinion Committee