Attorney General Opinion WW-1117

Honorable Robert S. Calvert Comptroller af Public Accounts Capitol Station Austin, Texas Opinion No. WW-1117 Dear Mr. Calvert: Re: Constitutionality of Section 4 of Article 6243e, Vernon's Civil Statutes. You have tions: requested an opinion on the following ques- "1. "2 . Is the provisions of Section 4 of the Firemen's Pension Commission Act Bection 4 of Article 6243e, V.C.SJ still valid. Should you answer ques- tion No. 1 :n the affirmative then answer No. 2.. Is the Comptroller required to set out in a separate appropriation $5C,OOO.O0 of the $300,000.00 appropriated for each year of the biennium." Section 4 of Article 6243e prcvides as follows: "The State Treasurer shall, not later than the first day of May of each year after this Act takes effecf, apportion and pay over to the various Boards of Trustees, upon a pro rata ratio basis of the insurance written upon property within the corporate limits of such city or town, all moneys coming into his hands annually from the gross premium receipts tax herein provided; save and except, the sum of Fifty Thousand Dol- lars ($50,000) less expenses of administration as herein provided, the balance of which shall be kept and retained by the State Treasurer in the said Firemen's Relief and Retirement Fund Honorable Robert S. Calvert, page 2 (WW-1117) as an emergency reserve fund for the pur- pose herein provided." The gross premium receipts tax referred to in Sec- tion 4 was held unconstitutional in American Alliance Ins. co. v. Board of Insurance Commissioners, 126 S.W.2d 741 ‘(Civ.App. 1939, error ref.). Since the "gross premium receipts tax" from which payment by the Treasurer was to be made to the various Boards of Trustees was held uncon- stitutional, such provisions can have no force and effect and, therefore, the provisions of Section 4 of Article 6243e, Vernon's Civil Statutes, are void and unenforceable. American Alliance Ins. Co. v. Board of Insurance Commissioners, supra. In other words, the provisions of Section 4 are incapable of being severed from the provisions of Section 2, which were held unconstitutional in American Alliance Ins. Co. v. Board of Insurance Commissioners, supra. SUMMARY Section 4 of Article 6243e, Vernon's Civil Statutes, providing for an ap- portionment from the gross premium receipts tax (held invalid in 1939) is void and unenforceable, since its pro- visions are incapable of being severed from the invalid portions of the Act. Yours very truly, WILL WILSON Attorney General of Texas JR:ms .-., By &d& /jj J John Reeves Assistant . Honorable Robert S. Calvert, page 3 (WW-1117) APPROVED: OPINION COMMITTEE W. V. Geppert, Chairman Elmer McVey Morgan Nesbitt Bob Eric Shannon Thomas Burrus REVIEWED FOR THE ATTORNEY GENERAL By: Houghton Brownlee, Jr.