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