Untitled Texas Attorney General Opinion ( 1957 )

. .
Hon. Wade Soilman, Chairman
House Judiciary Committee
House of Repre~sentatives
Austin, Texas
Opinion No. W-31
Re: Constitutionality of House Bill No.
13, 55th Legislature, relating to
charges that may be assessed on
small loans.
Dear Mr. Spilman:
Upon initially perusing the above captioned Bill
several items were noted that appeared to be typographical
errors. Your ‘attention was directed to them in a letter to
you of January 29, 1957, a copy of which is attached to this
opinion. Subsequently, the Honorable Tony Korioth on behalf
of the committee advised this department in writing that the
assumptions were correct, and that our opinion as to the con-
stitutionality should be based upon the language set out in
our letter to you. Accordingly this opinion will be based
upon the Bill as so modified.
The basic subject matter of the proposed Bill has
been he subject of several prior Attorney General’s opin-
ions. 1 The Bill fixes a maximumrate or ceiling upon all
charges that may be received, except by such persons as are
exempt from the Act, on all loans which have an original loan
principal of $500.00 or less. The proposed Bill does not au-
thorize any charges whatsoever, but merely places a limitation
;;inA;;l charges that may be assessed by persons subject to
.2 In short, it is a limitation and not an authorisa-
tion Bill. Some of the prior rulings of this office have been
based upon Bills that authorized certain charges in addition
L/ Opinions 16187, dated March 15, 1955; V-804,dated April
7, 1949; ~-2283, dated January 31, 1951; O-5384,dated August
4. 194~3: 0-3206 and O-726.
‘u-s-’ -
Bill;
ee Sections 3(a), 3(b), 3(c) and 3(d) of the proposed
the term “charges I’ is defined in Section 3(d) (1).
Hon. Wade Spilman, page 2 (WW-31)
to the constitutional rate of interest.3 Several of these
bills have been held to be unconstitutional. See Attorney
General’s Opinion No. MS-187 where it was held that the
substantially identical feature set forth in House Bill 573
of the 54th Legislature was constitutional.
The Act is not without its unconstitutional vices.
Article III, Section 3.5 of the Texas Constitution requires
that all subjects included within the Act be expressed in the
title thereof. “The purpose of the constitutional require-
ment is to reasonably apprise the Legislature of the contents
of the Act.” The caption of the Bill in question enumerates
a number of specific provisions, w ich do not logically in-
clude other provisions of the Qct, 5 while it does not fairly
apprise the Legislature of the presence of the provisions
enumerated in footnote 5. These provisions are therefore of
doubtful constitutionality.
Section 36, Article III of the Texas Constitution
provides , “No law shall be revived or amended by reference to
its title when in such case the Act revived or the section or
sections amended shall be re-enacted and published at length.”
Section l(e) of the proposed enactment attempts to amend a
number of statutes therein recited. The at tempted amendment
comes within the proscription of Article 36 and is void.
1/ See Opinion O-726, 0-3206, R-2283, and O-5384, for a full
discussion of these enactments.
4/ State v. Rodrw, 213 S.W.2d 877 (Tex.Civ.App. 1948).
9 Section 11 (relating to the making, obtaining, and intro-
duction in evidence of certified copies of official documents);
Section 12(a) and (b) (relating to advertising and posting a
schedule of charges by the licensee.licensed pursuant to the
Act)j Section 13(a) (relating to other businesses in the same
office) * Subsection 13(b) (relating to pawnbrokers); Subsec-
tion 13fc) ( requiring the licensee to confine his business to
the place stated in the license); Subsection 13(d) (forbidding
the licensee to take a lien upon real estate as security for
the loan); Subsection 14(a) (relating to the requirements for
making and payments of loans) j Subsection 14(b) (relating to
confession of judgment and incomplete instruments) j Subsection-
14(c) (relating to installment payments)
j Section 17 (relat-
ing to the requirements for a valid assignment of wages); and
Section 20 (relating to collection methods).
Hon. Wade Spilman, page 3 (Ww-31)
The loan business as a class may be regulated.6
Section l.(d) of the proposed Bill, thoug exempts certain
businesses from the purview of the Bill. 97 If the proposed
legislation, by such exemptions, discriminates against per-
sons of the same class ho are similarly situated, then the
legislation is invalid. 8 Regulatory statutesin other
statesalmostinvariably exempt from their provisions not
only State and Federal banks, but also trust companies and
build g and loan companies, and such Acts have been up-
held. $” The Bill, however, while exempting trust companies
doing business under the Texas Banking Code of 1943, under
Chapter 7 of the Insurance Code and under Article 1513,
Vernon’s Civil Statutes, leaves trust companies doing busi-
ness under Article 1303b subject to the purview of the Act.
Article 1303b companies are trust companies in the same
sense as Chapter 7 and Article 1513 trust companies.10 There-
fore the Act unjustly discriminates against persons of the
same class similarly situated, and the trust exemptions are
void. Noting the absence of a severability clause, it is
doubtful that it is the legislative intent to enact the bill
without exempting trust companies, since trust companies be-
long to the same class of lending institutions as the ex-
empted businesses. The Act therefore falls in its entirety.
&/ Juhan v. State, 216 S.W. 873 (Tex.Crim.App. 1918) .
z/ Exempted institutions are State banks, rural credit un-
ions, agricultural and livestock pools, mutual loan companies,
co-op credit associations, farmers co-ops, trust companies
incorporated under Article 1513, agricultural finance corpor-
ations, marketing and warehouse corporations, building and
loan associations, and surety and trust companies organized
under Chapter 7 of the Insurance Code. (A Bill is now pend-
ing in the Senate which would divest Chapter 7 of the Insur-
ance Code of the surety and trust company features.)
x carte Georse, 215 S.u’.2d 170; Ex oarte Smvth, 28 S.W.
2d?6!?-163.
w See annotation 69 K.L.R. 582, and annotation 125 A.L.R.
holding that such statutes do cot violate the due process and
equal protection of the law clause of the Federal Constitution
or the following provisions of the State Constitution: the due
process clause, uniform operation of laws of general nature,
prohibition against local and special laws, prohibition against
a special law attempting to regulate interest, and prohibitions
against the granting of special privileges and immunities.
w Carney v. Sam Houston Underwriters, 272 S.W.2d 942 (Tex.
Civ.App. 1954, writ ref. n.r.e.1
. .
Hon. Wade Spilman, page 4 (WW-31)
Since this vice can be easily remedied by amendment, and since
a fair answer to the questions propounded requires examination
of further sections, other items raising substantial questions
will be discussed.
There are a number of problems presented by reason of
the fact that Section 21 makes every violation ‘of the proposed
Act a misdemeanor. Each provision of the Act must be carefully
examined to see whether it meets the stringent requirements of
the due process clauses of the Fourteenth Amendment of the
United States Constitution and of Article 1, Section 19 of the
Texas Constitution, and the provisions of Section 10, Article I
of the Texas Constitution, wherein it is stated:
“In all criminal prosecutions the accused
shall have speedy public trial by an impartial
jury. He shall have the right to demand the
nature and cause of the accusation against him,
and to have a copy thereof. . . .‘I
These two provisions set out certain criteria regarding the cer-
tainty in definition of an offense which any enactment must meet
which purports to be a penal enactment. Such criteria would not
necessarily be applicable were the violations not denounced as
criminal. Several of the provisions are unconstitutional for
failure to meet such requirements. The familiar rule is:
ItA statute which either forbids or requires
the doing of an act in terms so vague that men of
common intelligence must guess as to its meaning
and differ as to its application cks the first
essential of due process of law.” ff
Article 6 of the Penal Code provides:
“Whenever it appears that a provision of the
penal law is so indefinitely framed or of such
doubtful construction that it cannot be understood,
either from the language in which it is expressed,
or from some other written law of the State, such
penal law shall be regarded as wholly inoperative.”
Article 3 provides:
“In order that the system of penal law in
force-in this State may be complete within itself,
+/ 14 Am.Jur., Criminal Law, Section 22. Lone Star Gas CQ.
v. ellv, 165 S.W.2d 446 (Tex.Comm.App. 1942, Opinion Adopted) .
. .
Hon. Wade Spilman, page 5 (WW-31)
and that no sy~stem of foreign laws, written or
unwritten, may be appealed to, it is declared
that no person shall be punished for any act or
omission, unless the same is made a penal of-
fense, and a penalty is affixed thereto by the
written law of this State.”
While these Penal Code provisions are not contained
verbatim in the Constitution of the State of Texas, the crimi-
nal courts have frequently invalidated statutes which did not
meet the requirements of Article 6 and Article 3; and in
Williams v. State, 176 S.W.2d 177 (Tex.Crim.App. 1943) the
Court, in discussing the meaning of Article 3, stated that such
was the meaning of due process as guaranteed under the State
and Federal Constitutions’. Other decisions by the Court of
Criminal Appeals indicate that Article 3 and Article 6 have been
regarded by the Court-as being declarative of the constitutional
requirements of due process.
In making applications of these general rules your
attention is directed first to Section 14(c) of the proposed Act
in which it is provided:
“And all installments shall be so arranged
that no installment is gubstantiallv greater iq
amount than any preceding installment.” (Empha-
sis added).
The case of Cogdell v. State, 193 S.W. 675 (Tex.Crim.
KPP* 1917) involved almost identical language to that in Sec-
tion 14(c) of the proposed iict. In that case the Court held
that the phraseology “substantially a larger percentage” was too
indefinite and too uncertain to proscribe an offense for the
reason that it left to the finders of fact the task of defining
the term “substantially larger percentage,” which was an essen-
tial element of the offense, and thereby allowed the court or
the jury to define and set out the limits of the crime. The defi-
nition of a crime is, of course, a purely legislative function,
and if the crime is not sufficiently defined by statute the court
cannot supply the defects of statutory construction by extension
of the statute, for as previously pointed out, each crime must
be denounced in writing. When the purported standard of criminal-
ity is such that such standard will vary depending upon who is
finding the facts, then the statute sets forth no standard at all,
Hon. Wade Spilman, page 6 (WW-31)
and the crime is not sufficiently defined.12 To allow a court
and a jury to make an application of a given set of facts to a
given and well defined standard of guilt is one thing; it is
quite another to allow a jury or court to set up the limits of
that standard of guilt. The latter procedure allows variance
of the law and is proscribed by the Constitution, and that is
exactly what would be done by this section when a court or a
jury would try a defendant for making a loan in which one in-
stallment is “substantially greater in amount than any preceding
inst aliment .‘I
What has been said concerning Section 14(c] is also
true of Section 14(d) (33 of the proposed Act in which it forbids
any licensee to “induce any person to enter into any loan con-
tract which provides payments to be madera; Fch time and at
such period as will make it reasonablv D o a 1% that there will
be numerous defaults in payments.” Furthermore, “In order to
constitute a crime the act must be one which the p
to know in advance whether it is criminal or not.” YjY ;,s,;g-
able probability” is a flexible concept that means one thing
to one person and something else to another. A licensee could
not ascertain in advance what constituted reasonable probability
of defaults, particularly in the marginal loan field which this
statute endeavors to regulate. (Emphasis added).
Section 10(a) requires each licensee to keep and use
in his business “such books, accounts and records as will en-
able the Secretary to determine whether such licensee.,is com-
plying with the provisions of this Act and with the orders and
regulations lawfully made by the Secretary hereunder.” There
W This rule is further sup orted by Ex ua te Sl uehte 92
Tex.Crim.App. 212, 243 S.W. 478 (19X?), involting aastatuii
forbidding any person to operate a motor vehicle on the public
highway “where the territory contiguous thereto is closely built
up, at a greater rate of speed than eighteen miles per hour.”
The phrase, “closely built up” was held to be so vague and in-
definite as to make it impossible to establish any standard of
guilt. Every individual could easily have a different concept
as to what constituted a territory “closely built up.” There-
fore the statute was void.
86 Tex. Crim.
v. United
Hon. Wade Spilman, page 7 (WW-31)
is no way that a licensee may in advance ascertain what records
will enable the Secretary t,o determine whether the licensee is
complying with the Act. The statute must contain its own stand-
ard of guilt and not be rn?Ge dependent, upon’subjective factors
or limitations of others. The Secretary of State is, in ;t;tsh
and in fact, defining what nonfeasance shall be criminal.
is an unconstitutional attempt to delegate to the Secretary of
State the legislative prerogative and duty to define a penal of-
fense. Analogous cases are t forth in the footnote which amply
illustrate this rule of law. %
I&/ In Anderson vi Stat< 21 S.W.?d 499 (Tex.Crim.App. 19291,
the Court was concerned witi the statute prohibiting any person
who is “masked or disguised in such a manner as to hide his or
her identity or to render same difficult to determine from going
into or near any private house.” In considering whether the
statute was too vague to define an of~fense the Court noted that
the act prohibited is made to depend largely upon the peculiari-
ties that may affect the vision of the person or persons offended,
and offends against Article 6 of the Penal Code and is therefore
inoperative. Griffin v. State 218 S.W. 494 (Tex.Crim.App. 19201,
involved the validity of a staiute prohibiting any person to oper-
ate an automobile , motorcycle, or bicycle upon the public high-
ways of the State at night time whose front lamp shall project
forward a 1’ of ar 1 -
terfere,with themt of or temoorarilv blind the vision of the
driver of a vehicle aooroachinp from an oooosite direction.” ‘The
Court pointed out that the determining factor of the guilt or
innocence of the accused in this ‘instance was to be determined by
the effect of the light upon the vision of each individual driver
of a vehicle proceeding in the opposite direction, and not upon
any definite legal standard. The law requires a certain degree
of definiteness ,in denouncing an act as criminal. “Our statute
declares that those penal laws that are of such doubtful construc-
tion that they cannot be understood, either from the language in
which they are expressed or from some written law of the State,
are wholly inoperative .‘I Citing Penal Code, Article 6.
w Stephens vt Wood, 35 S.W.2d ‘794 (Tex.Civ.App. 1930). Suit
to enjoin the members of the Game, Fish & Oyster Commission, and
all others charged with the administration and enforcement of ;ir-
title 941 of the Penal Code, on the grounds that the statute was
invalid. The, statute prohibited anyone to have in his posses-
sion any seine, net or trawl without a permit issued by the Game,
Fish and Oyster Commissioners or by their authorized deputy in
any or on any of the waters of certain designated bays, streams,
bayous or canals named in the Act. The plaintiffs insisted that
this was an attempt on the part of the Legislature to confer upon
Hon. Wade Spilman, page 8 (W-31)
Section 20 penalizes the use or threat of use for the
purpose of compelling or inducing payment ‘fany means which the
licensee is not legally entitled to use for such purpose.” In
effect this section makes it an offense to use any unauthorized
or unlawful means to compel or induce payment. Nowhere in the
Act does it specify exactly what means aPEeprohibited, but leaves
the definition and scope of the prohibited method to the general
law, including not only extraneous statutory law but also the
common law. The lender is unable to look to the statute itself
to find out what acts are prohibited, but must be thoroughly ac-
quainted with a complex system of law about which even courts
are frequently puzzled in order that he may ascertain whether an
act is criminal. It is apparent that “men of common intelli’gence
must guess as to &he meaning and differ as to the application of
such a statute.“’ It therefore lacks the first essential of due
w (continued)
the Commissioners authority to determine when and under what cir-
cumstances this possession should constitute a penal offense by
granting or refusing to grant the permission mentioned. Ha:
The contention of the plaintiffs should be sustained. The Legis-
lature has no power to confer upon a commission, bureau or agent
of the State power to make a law. Citing Article III, Section 1
of the Texas Constitution, and other authorities. The portion of
the Act cited was then held to be unconstitutional and void for
want of due process.
&/ 14 Am.Jur., Criminal Law, Section 22. Dockerv v. State, 247
S.W. 508 (Tex.Crim.App. 19231, requiring the erection of a fire
escape to be erected in accordance with the minimum specifications
promulgated by the State Fire Marshall. H&&&s“If the Act under
discussion be upheld, it would seem clear that the law requiring
fire escapes would be such as that an essential part of it, i.e.,
the kind and character and specifications necessary, might be
changed, modified, added to or taken from by a power other than
the Legislature at the will, wish, or whim of such foreign power .‘I
It is an attempt to delegate to the State Fire Marshall power to
make or unmake the element necessary to make out an offense, and
is obnoxious to the Constitution. The conviction was reversed
and prosecution ordered dismissed. Ex aarte Willmouth 67 S.W.2d
289 (Tex.Crim.App. 1933) involved the val?dity of a p&al ordi-
nance prohibiting the operation of an automobile for hire unless
the same shall have attached thereto a taximeter of standard
size and design to be aaaroved bv the Chief of Police. HA: An
offense denounced by statute or ordinance must be plainly written
to be effective. In other words, a completed law, if penal in
its effect, must define the act or omission denounced as criminal
with some degree of certainty. If the ordinance would be upheld
it is clear that the size and design of the taximeter might be
Hon. Wade Spilman, page 9 (WW-31)
. The holding of Stated v. Gaster, 45 La.Ann. 636, 12
~~I)ce?$ (S.Ct .La. 1893) is applicable. In that case a statute
penalizing any judge, justice of the peace, sheriff, or any
other civil,officer for committing a misdemeanor in the execu-
tion of their offices was held to contravene the provisions of
Article VIII of the Louisiana Constitution which states that
“In all criminal prosecutions the accused shall enjoy the right
to be informed of the nature and cause of the accusation.” In
that case the court also held the statuteunconstitutional on
the ground that it was an unlawful delegation of legislative au-
thority to the judiciary. Article XIV of the Louisiana Consti-
tution is, similar to Article II, Section 1 of our Constitution. 17
Section 20 also provides that “any such action which,
under the laws and court decisions of the State heretofore or
hereafter made (which) amounts to an invasion of any leaalle
protected interest of the borrower will also be a violation of
this Act and shall subject the per98 n guilty of this violation
to the penalties herein provided.” The term “legally protected
w (continued)
changed at the will, wish, or whim of the Chief of ?olice. The
Constitution forbids the delegation of law-making power by the
Legislature. The section in question attempts to Yelegate to
the Chief of Police law-making power, which is obnoxious to the
constitutional requirement and is therefore invalid.
12/ Article XIV of the Louisiana Constitution divides the pow-
ers between the Executive, Judicial, and Legislative branches,
and provides: “No one of these departments shall exercise power
properly belonging to one of the others.” iirticle II, Section
1 of the Texas Constitution provides:
“‘The powers of the Government of the State of
Texas shall be divided into three distinct depart-
merits, each of which shall be confided to a separ-
ate body of magistracy, to wit: Those which are
Legislative to one; those which are Executive to
another, and those which are Judicial to another;
and no person, or collection of persons, being of
one of these departments, shall exercise any power
properly attached to either of the others, except
in the instances herein expressly permitted.”
&/ Parenthetical matter and emphasis supplied.
Hon. Wade Spilman, page 10 thw-31)
interest” is nowhere defined in the Act, and does not have a
well-established common law meaning. It is a rather nebulous
concept. It is evident that this does not meet the tests
previosly cited by which men of common intelligence would not
have to guess as to the meaning of the term ttlegally protected
interest,” and differ as to its application.- Furthermore, a
criminal statute, to be valid, must contain within it the defi-
nition of all essential terms, or those te s must be defined
elsewhere in the written law of the State. 55 The objectionable
language also attempts to authorize an enlargement of the term
“legally protected interest It by judicial decisions any time in
the future, thereby allowing the courts from time to time to
enlarge by definition the proscribed conduct. This is nothing
more than judicial legislation and is prohibited.
Section 6(c) requires licensees to maintain at all
times “total assets of at least $25,000.00, either actually on
loan or readily available for immediate loan.” Failure to
maintain the required assets can cause two possible results,
suspension or revocation of license and/or criminal penalties
set out in Section 21. Should a licensee’s assets be depleted
or placed beyond his control so as not to be ??eadily available
for immediate loan,” even without the licensee’s fault or agency,
as in the case of a wrongful garnishment or a bank failure, the
licensee is criminally liable. He may not escape the conse-
quences by surrendering his license immediately, for Section 8(c)
provides that “such surrender shall not affect his civil or crim-
inal liability for acts committed prior thereto.” The effect
of this Bill is to make it a crime for a licensee to be so unfor-
tunate as to have his assets tied up by some circumstance beyond
his control. This is palpablv “arbitrary and unreasonable” and
contrary to the due process clause of the Fourteenth Amendment
to the Federal Constitution.
Section 8 of the Act deals with revocation, suspension,
and reinstatement of licenses. Subsection (b) provides ;;re ~2
three days notice of a hearing to suspend the license.
is to run from the day the notice is deposited in the mail. It
is conceivable under such a provision that the letter would be
deposited late Friday and received on Tuesday, the day set for
the hearing . Does this constitute procedural due process? If the
w The well recognized rule for construing a penal statute is,
“that if the statute is so indefinitely drawn, or if it is of such
doubtful construction that it cannot be understood, either from
the language in which it is expressed or from some written law of
the State it is invalid and void." Ex oarte Meadow%, 109 S.W.2d
261 (Tex.Crim. App. 1937).
, .
Hon. Wade Spilman, page 11 (WW-31)
Legislature means to require rsBsonable notice, such is not
reasonable and not due process for it fails to meet the leg-
islat ive, nlandate. If the Legislature does not intend reason-
able notice, the result differs, for no notice is required to
suspend the license. The right to lend money at j&e est is a
creature of statute and is not an inherent right. Jruhanv.
StaQ, suora, note b. Therefore the privilege to loan money at
the higher rate of charge provided by Section 3(b) is a privi-
lege which the~Eegislature grants to anyone licensed under the
Act 9 The Legislature has the power to compel all persons sub-
ject to the .Act to charge the lower rate specified in Section
3(a) of the Ac,t. Suspension of the licensee’s license simply
prohibits him from making the charges at the higher rate as
specified undoer Section 3(b) D It does not prohibit him from
loaning money. The license is granted to him pursuant to a
general gr~ant of police power to regulate the small loan busi-
ness* ,If, in the interest of the enforcement of the police
power vested in the Secretary by the Legislature, the Secretary
chooses to revoke the license by a long standing rule in the
&ate, he may do so without notice.21 The licensee is not en-
titled to notice except that which may be granted to him by the
statute. If the Legislature did not intend to provide reason-
able notices, it would~ be a matter of legislative grace whether
he received any notice at all, and compliance with the notice
provided by the statute would be procedural due process.
Section 9(b) and (c) of the Bill gives sweeping in-
vestigatory powers to the Secretary of State, the Attorney Gen-
eral, and to any District Attorney or County Attorney, or to
their respective representatives for the specific purpose of de-
tecting violations (all of which are made criminal by Section
21) or securing information required by the Act. This authority
is not limited to licensees and persons engaging in the loan
2Q/ Unless notice is given a reasonable time in advance of
the hearing, it is insufficient. 1 Fed.Adm.Law § 295 (Van Baur
1942). See also, Bellinsham Bav & BCR Co. V. Citv of New What,
w., 172 U.S. 31& 43 L.EdL. 460, 19 S. Ct. 205.
2lJ Baldacchi v. Goodlet, 14~5S.W. 325 (Tex.Civ.App. 1912, er-
ror den.) involving the suspension of a license granted by the
City of Austin to sell milk in the city. The ordinance did not
provide for notification prior to revocation of the permit. The
court reasoned that when the city was justified in regulating the
occupation in the interest of public health, morals, safety, or
welfare, by requiring a license, the power to revoke the license
whenever in the opinion -of the municipal authorities the public
interest requires it, is inherent, and may be exercised without
notice to the holder of the license, or affording him opportunity
to be heard.
Hon. Wade Spllman, page 12 (WW-31)
business, ‘but may beeasserted to Investigate anyone whom the
investigating officer has reasonable cause to believe Is vio-
lating; or event about to violate, any provision of this ,Act.
This sweeping authority~~contravenes the constitutional provi-
dions against unreasonable search8 and seisures. In the lead-
ing case of @ovd v; Ut@ed Statag j2 the Supreme Court of the
United State,s in construing the search and seleure provisions
of the Federa i Constitution, which are substantially identical
to Section 9, Article I of the Texas Constitution, held a Fed-
eral statute requiring production of private books and papers
of~a defendant in a suit to forfeit goods, unconstitutional as
authorizing an unreasonable search and’seizure. The Court
pointed out that the proceeding was quasi-criminal, and that the
production of such documents would be compulsory self-incrimina-
tion and therefore unreasonable. There is no distinction be-
t,-ieen compelling the production of incriminating papers and
records, as ins the Bpyrl case, m, and allowing inspection of
incriminating documents as is here authorized. Both are unrea-
sonable searches and seizures. The distinct ion should, however,
be drawn between what is here proposed and a statute which re-
quires the production of records and authorities inspection
thereof by an administrative agency, but which does not impose
criminal penalt es. Such statutes have on occasion, been held
constitutional. 3 3 gllowlng administrative officials to exer-
cise such sweeping invest!@ory powers against the persons
named in Sections 9(b) (3) is of questionable constitutional-
ity even if no criminal penalties were involved. Our holding
does not make it necessary to discuss that question in this
opl.ni,on . Section 9(c) contains the same vice as Section 9(b).
In addition thereto, it authorizes the investigating authority
to compel attendance of witnesses and to examine them under
oath, but does not provide for subpoena power or any pr,ocess to
implement the examination, The witness has no way to knou of
the investigator’s authority, nor is he apprised of the extent
thereof, while at the same time he is asked to determine at his
peril whether he will testify and reveal the information de-
manded .
116 U.S. 616, 29 L.&d. 746, 6 S.Ct . 524, 29 L.R.A. -19
,(1226)
a$ .E
W Culver v. Smith , 74 S.W.2d 754 (Tex.Clv.App. 1934, ,mit
ref .)
w ‘*Any person who the Secretary, Attorney General, or Dis-
trict or,County Attorney has reasonable cause to believe i‘s vio-
lating or is about to violate any provision of this Act, whether
or not such person shall claim to be within the authority ‘or be-
yond the scope of this Act.U
.* .
Hon. Wade Spilman, page 13 (WW-31)
It is doubtful that Sections 11, 12(a) and (b),
13(a), (b),~ (c) and (d), 14(a), (b), and cc), and -
17,and 20.are included-in the.caption; Amendments
provided in Section l(e) are void; Sections 6(c),
9(b) and cc), 10(a), 14(c) and 14(d)(3) are void;
Section 8(b) is of doubtful constitutionality; Sec-
tion l(d) (Exemptions) is unconstitutional and can-
not be severed, causing the entire Act to be uncon-
stitutional; Section 3,, fixing maximumrates of charges
would be cunstitutional if severable.
Very truly yours,
WILL WILSON
Attorney General
By @&
Wallace P. Finfr
Assistant
WPF:wb
APPROVED:
OPINIONCOMMITTm
H. Grady Chandler
Chairman