Untitled Texas Attorney General Opinion ( 1941 )

Honorable J. E. McDonald, Commissioner
Department of Agriculture
Austin, Texas
Dear Sir: Opinion No. o-4018
Re: Will the rice tax be collectible
on rice milled after August 1st
regardless of the fact that the
effective date of the tax Act is
established as October 2nd?
We are in receipt of your letter of September 19, 1941,
in which you request the opinion of this department on the
facts set out therein as follows:
"The states of Louisians, Arkansas and Texas
have enacted laws providing for the creation of
Rice Commissions carrying provisions for the col-
lection of a tax to be paid by millers processing
rice. The tax collected to be used for advertis-
Ing purposes to promote the consumption of the
product.
"The Loulsfana and Arkansas Acts are now in
force, however, the Texas Act does not go into
effect until October 2. Under both the Louisiana
and Arkansas Acts, it seems that the taxes levied
are now collectable. We wish to have you advise
this Department on the following.
"The Texas Law provides that rice mllled after
August 1, shall be taxed, however the Act does not
become effective until October 2. Will the tax be
collectable from and after August 1, regardless of
the fact that the effective date is established as
October 2?"
The Texas Rice Development Law was enacted as House
Bill 136 Acts of the Forty-seventh Legislature, Regular Ses-
sion, 1941, and the same was placed in the Revised Civil
Statutes of Texas as Chapter 12, Article 165-5 of Title 4.
In your letter you state that the law provides that
rice milled after August 1st shallbe taxed, and that the Act
Honorable J. E. McDonald, page 2 O-4018
does not become effective until October 2nd. The sections
of the Act levying the tax are Sections 5 and 6 and they read
as follows:
"Sec. 5. That there is hereby levied a pro-
cessing tax of Two (2) cents per hundred pounds
on all milled rice which is milled or processed
in the State of Texas which may be produced from
rice grown in the State of Texas by the process
of hulling the rice and removing the germ and
bran, or any other process which may hull, clean,
or mill rice, whether whole or broken, coated or
uncoated, so as to render the product into the
condition of 'milled rice' as that term is de-
fined herein. This Act shall also include and
such tax shall be paid on all rice grown outside
the State of Texas which may be processed or mill-
ed by a Texas rice miller, as that term is de-
fined herein; provided further that this tax is
and shall be on the act of milling the rice, and
in no manner is it or shall it be construed as
an occupation tax.
"sec. 6. That said tax shall be paid by all
rice millers in the State of Texas for all rice
milled in the State of Texas and shall be payable
within the first ten (10) days of each month for
all rice milled during the preceding calendar
month, which tax shall be remitted direct to the
Rice Development Commission hereby created. Any
rice miller failing to pay said tax within the
time specified and as herein required shall pay
a penalty of ten (10) per cent of the amount due,
plus one per cent per month for each and every
month In which said tax is not paid. ~
"Should any miller collect any such tax or
part thereof from a grower, as such are defined
In this Act, he shall be guilty of a misdemeanor
and upon conviction therefor, be punished b a
fine of not less than Twenty-five Dollars ( 25)
nor more than One Rundred Dollars ($lOO)."
It is apparent that the above quoted sections of the
Rice Development Law do not set any date when the rice will
first be taxed. However, the Legislature in Sections 13 and
14 of the Act provided as follows:
"Sec. 13. That this Act shall become ef-
fective on the first day of August after the Leg-
. .
Honorable J. E. McDonald, page 3 0 -4018
lslature of Louisiana and Arkansas shall have
adopted a similar statute, assessing a tax of
not less than Two (2) cents per one hundred (100)
pounds of milled rice which may be mllled In
said States, and creating similar commissions,
boards, departments, or other authorities with
similar powers and purposes. The provisions of
this Section and of Section 4 and Sectlon 7, or
any other Section or part of this Act in which
the valldlty of such Act depends upon, or is
connected with, similar action by the Legisla-
tures of Louisiana and Arkansas, shall be satis-
fled by the creation and vesting of such author-
ity in any state officer, board, commission, de-
partment, or other authority in the States of
Louisiana and Arkansas , provldlng the same powers
are delegated to such officer, board, commission
department, or other authority, and providing
that a tax is levied of not less than the amount
levied herein for such purposes.
"Sec. 14. That the creation of a Rice De-
velopment Commission for the State of Louisiana,
levying the same tax as herein levied in this
State, for the same powers and purposes, and
vesting the authority of the Rice Development
Commission for Louisiana, under Act No. 112 of
the 1940 Legislature, in the Department and Di-
rector of the Department of Agriculture, the
Department and Director of the Department of
Ffnance, and the Department and Director of then
Department of Revenue for the State of Louisiana
created by Act No. 47, and Act no. 48 of the
1940 Legislature, is within the terms of this
Act, so that this Act shall become effective
on the first day of August after the Legislature
of Arkansas shall have adopted a Statute sim-
ilar In purpose to this Act, or to Act No. I.12
of the 1940 Legislature of the State of Louis-
iana, and levied a tax of not less than Two (2)
Cents per hundred pounds of mllled rice for
similar purposes."
In effect the Legislature has provided that the Texas
law should become effective on the happening of a contingency
-- that is on the first day of August after the Legislatures
of Louislana and Arkansas shall have enacted similar laws. In
Section 14 it Is stated that the State of Louisiana has enacted
such a similar law. Under the facts you submitted~the State
of Arkansas also prior to August 1, 1941, enacted a law in con-
Honorable J. E. McDonald, page 4 O-4018
formity with the provisions of the Texas Rice Development Law
which under the wording of SectLons 13 and 14 of the Texas law
would make the Texas Rice Development Law effective as of
August 1, 1941.
Section 17 of the Act declared an emergency and pro-
vided thstthe Act should take effect from and after Its pass-
age.
In the case of People v. San Bernandino High School
Dist., 216 P. 959, the court stated as follows:
"It Is well settled that a statute may be
so drawn that upon the happening of some pre-
scribed contingency it.shall become operative,
or, that it may remain In force until abrogated
for like reason."
To the same effect see the cases of Le Page v. Bailey 170
S.E. 457, and Poindexter v. Pettis County, 246 S.W. 38.
Article III, Section 39, of the Constitution of Texas,
provides as follows:
"No law passed by the Legislature, except
the general appropriation act, shall take effect
or go into force until ninety days after the ad-
journment of the session at which it was enacted,
unless in case of an emergency, which emergency
must be expressed in a preamble or in the body
of the act, the Legislature shall, by a vote of
two-thirds of all the members elected to each
House, otherwise direct; said vote to be taken by
yeas and nays, and entered upon the journals."
According to the records House Bill 136, the Act in
question, did not receive a vote of two-thirds of all of the
members elected to each House of the Texas Legislature.
Therefore Section 39 is applicable and the Texas Rice Develop-
ment Law, because of such constitutional provision, could not
go into effect until ninety days after the adjournment of the
session at which It was enacted which effective date was Octo-
ber 2, 1941. While the Legislature has the authority to set
a specific date at which an Act it passes shall become effec-
tive which date is subsequent to ninety days after the ad-
journment of the session at which the act was enacted, as
held in the case of Rudco Oil & Gas Co. v. Lemasters, 146 S.W.
(2d) 806, it is our opinion that Section 39 of Article III of
the Constitution of Texas prohibits,the Legislature from in
any manner making a law become effective before ninety days
Honorable J. E. McDonald, page 5 O-4018
after the adjournment of the session if said bill upon passage
does not receive a two-thirds vote of the members elected ta
each House of the Legislature. In discussing the above quoted
constitutional provision the Supreme Court of Texas In the
case of Missouri K. & T. Rg. Co. of Texas v. State, 100 S.W.
766, the court stated,as follows:
II
. . . The Words, 'or go into force,' used
In our Constitution, emphasizes the idea that
the law is without vitality until the 90 days
shall expire."
It Is the opinion of this department that Sections 13
and 14 which in effect attempts to set the effective date of
House Bill 136 as August 1, 1941, violates Section 39 of
Article III of the Constitution of Texas.
'We call your attention, however, to Section 15 of said
Act. Said Section reads as follows:
"That lf any word, phrase, sentence, para-
graph, or portion of this Act shall be unconsti-
tutional, it shall not affect the validity of
the remaining portions of this Act, but the same
shall be Construed to be effective, as though the
unconstitutional word, phrase, sentence, paragraph,
or portion thereof were eliminated."
Without any specific provision in the Texas Rice Develo
ment Law as to when the same shall become effective said Act
would become effective on October 2, 1941. It is the opinion
of this department that because of the above reasons the sec-
tions of the Act purporting to aet an effective date are In-
operative and the Act in question becomes effective October 2,
1941, and that the tax applies only to rice milled after such
effective date.
In this opinion we are not passing upon the constitu-
tionality of the Texas Rice Development Law but are confining
our opinion to the question asked-- that is whether or not
rice mllled b8tW88n August 1, 1941, and October 2,1941, is sub-
ject to the tax levied therein.
Yours very truly
BG :LM:wc
ATTORNEY GENERAL OF TEXAS
APPROVED OCT. 9, 1941
s/Grover Sellers
FIRST ASSISTANT By s/Billy Goldberg
ATTORNEY GENERAL Billy Goldberg
Assistant