Untitled Texas Attorney General Opinion

July 6,~ 1972

Honorable Preston Smith Opinion No. M-1167 Governor of Texas State Capitol Building Re: Necessity for subject matter of Austin, Texas 78711 resolutions to be included in the calI of a Special Session of the Legislature in order for their Dear Governor Smith: consideration and passage.

You ask our opinion in answer to the f,ollowing questions:

“( 1) Does the Texas Constitution (Article III, Section 40 and Article IV, Section 15) re- quire the Governor to enlarge the call for the Third Called Session, 62nd Legislature, to enable the Legislature to consider re- solutions, the subject matter of which were not included in the present call, particular- ly if a point of order is raised based on this fact?

“(2) Would different constitutional gro,unds apply to consideration of joint resolutions Andy con- current resolutions? ”

You state that one of the reasons for your inquiry is that,

“The question, however, has recently risen as to whethe; or not the Legislature can consider certain resolutions pending before each of the Houses unless the Governor does open the Session by amending the call to include these subjects, one of which is a request tc the Congress of the United States to call a convention to amend the United States Constitution to prohibit forced busing to achieve integration of our schools. I’

-5688-Honorable Preston Smit~h, page 2 (M,-1167)

You fwther stat:e,

“There have been numerous requests to this office to opens the c,tirrexit Legislative Session (62nd ‘Legislature, Third Called Session) tq allow the Legis- lature to adopt certain resolutions on various subjects. It h,as not been considered necessary in the past to in- clude the subject, matter of resolutions in the call for a Special Session in order for their consideration and passage by either or ‘both Houses of the Legislature. ”

‘Your req.uest inquires specificall:y of two Sections of our Texas C;r;ri stitution. The first is Article III, Section 40 which restricts legislation ai a special ses~sion:of the legislature. It reads:

“When the Legislature shall be convened in special ses,sion, there shall be no legislation upon subjects other than those designated in the proclama- tion of the Governor calling such s.ession, or presented to them by the Governor; and no such session shall be of longer durat:ion than thirt:y days. ” (Emphasis added. )

The second is Article IV, Section 15 which requires approval of the Govcr- nor to certain actions of the Legislature; it reads:

“Every order, resolut~ion or vote t.o which the concurrence of both Ho,uses of the Legislature may be necessary, except on questions of adjournment, shall be presented to the Governor, and, before it shall take effect, shall be approved by him; or being disapproved,~ shall be passed by both Ho-uses,” and all the rules, pro- Visions and limit,ations shall apply thereto as prescribed in the last preceding section in the case of a bill. ”

We must first consider the word “legislation” as it is used in Artlcli. III, Section 40. In Ex parte Walters, ._I Ex parte Gray, 144 S. W. 531, 533. iii? 574 (Tex. Crim. 1912) the court: held that the therm “legislation” 2:~ used ir, this Section 40 comprehends u:nly the enactment: of new laws or the an‘end- ment or repeal of existing ones.

.-5689-Honorable Preston Smith, page 3 (M-1167)

The term “legislation ” in constitutional provisions, so far as our research shows, is uniformly used with, reference only to the en- actment, amendment or repeal of laws. Commonwealth v. Griest, 46 Atl. 505 (.Pa. Sup. 1900); State v. Hyde, 22 N. E. 644, 646 (Ind. Sup. 18&9); State v. Skeggs, 46 So. 268, 271 (Ala.Sup. 1908); and Hatcher v. Mere- dith, 173 S. W. 2d 665 (Ky. Ct. of App. 1943).

The case of Sweeny v; King, 137 A. 178 (Pa. Sup. 1927) is directly in point. We quote from that decision:

“At its special session held in 1926, the Legis- lature adopted a resolution proposing an amendment to article 15, of the state constitution, by adding a new set - tion to it, though the subject-matter, thereof was not re- ferred to in the Governor’s proclamation calling the ses- sion. . . . Plaintiff’s only contention is that a resolution for a proposed amendment to the Constitution cannot be adopted at a special session of the Legislature, unless the subject-matter thereof is included in the Governor’s pro- clamation. The court below did not agree with this, and dismissed the bill. We are in a,ccord with that conclu- sion. ”

We are of the opinion that a resolution is not legislation; therefore, Article III, Section 40 of the Texas Constitution does not prohibit the Legis- lature from passing resolutions.’ The subject of a resolution need not be set out in the Governor’s call for a special session in order for the Legis- lamre to validly act upon the resolution.

We turn now to consideration of whether or not Article IV, Section 15 of the Texas Constitution requires that a resolution applying to Congress to call a convention to amend the United States Constitution is required to be presented to the Governor for his approval. In our opinion a resolution. of the Texas Legislature making such an application to the Congress is not r‘c- quired to be submitted to the.Governor for his approval and does not <alI wi:o- in the provisions of Article IV, Section 15 of the Texas Constitution. I+.- marily, this question is resolved by Article V of the Constitution of the Unii<.:d States. In its relevant portion, it reads:

-5690-Honora~ble Preston~S,m,ith. page 4 (M-1167)

“The Gngress, whenever two thirds of both Houses shall deem ,it ‘necessar), shall pwpose Amendments to t111s Constitution, on the Applications o*, -_- of the Legislatures of two thirds uf the -___- sever3S St:ates., .,,.-- -.--_ sha.11 call a Convention for proposi,ng Amendmwts. . . . ” (Emphasis added. )

This provision of the IYa,rional Cczstitution provides for application of the Legislat:izre and the Legisldt~~~re only. The most recent court decision on this point which we fiend is PetuskeEv. Rampton: 307 F. Supp. 235, (D. C1., Utah., 1969),~ rev’d. 0.1, ,,r:her gro,nds 231 F. 2d 378, cert. denied. 401 IJ. S. 913. We q’uote frum that case:

“3. The Actwn uf the 1965 Utah State Legislature, in adoptmg a resol,&ion calling for a feder’al constitutional con-- vention, constitutes an exercise of a federal constitutional function under Article V of the Constitution of the United States . . . (at p. 256. )

(1. . . .

“Th,e word ‘leglslatdres’ i,n the rd,tificatlon cl&use of Article V does not, mean t,hc whole~legislative process of the state -- as defer rd in the state constitution. Hawke v. Smith says it means i:he representative lawmaking body only, ‘because Eratification by a state of a constit.utionai amendment is not an act of leglslatloo wit.hi:c the proper sense of thz word ’

“No doubt: the wurd ‘leglsl&ures! has the same :nean- rag in the applicat:ior! cl<ulse that it bears ,in the ratification clause of Article V. The applicati,>n is nut ‘an act of Icgis lation’ within, the proper sense of the wr:rd. I’ (at, p. 250 .251. )

This opinion cites .-.-.-- Y. Smith, Hawke ---“ 253 ‘U.S. 221 (1920~), IO A. L. R. 1504 as having esta’blished this pri,nciple; see also Wise --_--._-- v. Chandler, IO8 S. W. Zd 1024, 1033 (Ky. Cf:. of App. 1937.)

No provisiti,n. of the Strlte ConstltJtion can contravene 3. prov~s.~or~ o: the Federal Const1t~.&iun because of rhe supremacy clause of Arllcle Vl of I:,(. I Federal Cunstit~utiw~. The Federal CvgslIt,titi<ir. is the supreme law of the i:jl:d

-5691,. Honorable Prest~on Smith, page 5 (M-l 167)

The above view of t,he requirements of federal law is con:3isLcnt with the procedure for amending the State Constitution provided by AL ticit. XVII, and is consistent with t:he reasoning of a prior opinion of this ,Jffiz;:, issued in 1917. That opinion 1 held that Article IV, Section 15 of our ‘I’Y.~L: Constitution relates only ‘I. . . to matters of ordinary legislation ” (Emphasis added) and,

1,. . . that a resolution,-, proposing an amendment to the Constitution /of Texas / is not a bill or a resolution within t,he coritemplaticm of-section 34 of Article 3 -- and is not to be controlled by the ordinary legislative procedure. ” (Emphasis added. ) (at p. 763,-764) 2

The 1917 opinion was issued in answer to the inquiry,

(1. . . whether or not Article XVII of the Constitution. which authorizes the Legislature to propose amendments to the Constitution to be voted on by the people, is related to or is limited by any other provision of the Constitutiou in regal d to legislative procedure. ” (at p. 760. )

The 1917 opinion was based upon the case of Commonwealth v. Griest, 46 A. 505 (Pa. Sup. 1900) (supra), and the case of Hollingsworth v. Virgins, 3 Dall. 378, 1 L. Ed. 644. The latter case was in reference to the power Q:’

I/Opinion of Attorney General B.,F. Looney, to Hon. I;‘. 0. Fuller, Speakei of the House, Fe’bruary 13, 1917, Op. No. .1705-BR 48~, p. 480, contained in Attorney General Looney’s Report of Attorney General a,t p. 760.-765. A copy of this opinion is attached.

2/ Sec. 34 of Art. III reads as follows: “After a bill has been considered and defeated by either House of the Legislature, no bill containing the saili.: substance, shall be passed into a law during the~eame session. After ri ?:L- solution has been acted on and defeated, no resolut:ion containing the same substance, shall be considered at the same session. ”

-5692.. Honorable Preston Smith, ~page 6 (M-1167)

the President PDFthe,?Init:ed St.&es under the language of Article I, Section; 7, Sdbdivisior. 3 of the Federal Constitution that is similar to Article XVII. Texas Constitution. This Attorney General Opinion was cited and followed in At:torne)r General Opcnion No. 2761, d&ted March 9. 1929, to Hurl. Fred H. Minor, Speaker Pro Tern of the Texas House of Representatives.

This former opinion of this office issued by Attorney General Looney correctly advises that a resolutioa propusing an amendment to the Constilutior. of Texas is not, subject to the approval of th’e Governor under Article IV, S’ec- tion 15 of the Texas Constitution. We point out, however, that there is one material difference b&weea the authorization of the State Constitution in Article XVII and the a,uth,)rizarion +f the National Constitution in Ar;icle 1’. Article XVII of the St:ate Consr~ituiion lunit~s to the regular biennial session of the Legislature, the authority of the Legislature to propose amendments by resolution. Hence,, a resolution in special session proposing an arnend- ment to the State Constitution would not be proper. There is no such lirnita- ,tion in Article V of the Nat,ional Constitution, and the Legislature may validly pass d resolution applyiag to Congress to call a convention for amend- ing the National Const:it&o:n even t,hough it is sitting in special s&sslon.

An interest,ing case i?, which t.he Legislature acted by resolution, where the subject matter of the’ resolution certainly was not in the call of the special session, was the impeachment of Governor Ferguson. See -Fer- guson v. Maddox, 114 Tex. 85, 263 S. W. 888 (1924. ) In this case the Supreme Court sustained the power of the Legislature to bring, prosecute and try im- peachment proceedings against Governor Ferguson at its special session. See also the case of Ex parte Wolters, Ex pa~rte Gray, 144 S. W, 531 (Tex. Crim l9l2), wherein the court upheld the validity of a resolution creatillg a leg~s- lative investigating cormnittee at a special session although the particular subject matte :. was not in t:he Governor’s call.

Our opi&xis m the abuve matt.ers obviuitsly mean that no valid point of order may be raised t,o question the act of the Legislatlire in pass- ing a resolution request.ing t:he Congress tti ca,ll a convention for the purpose of amending the National Co,nstit:ution.

Your second question a~sks whether different constitutIona grounds apply to consideration of joint resolut,iuns ar!d concurrent resolutions. The

..5693-Honorable Preston Smith, page 7 (M-1167)

terms “concurrent resolution” and “joint resolution” do not appear in the constitutional provisions under. discussion. These terms of nomenclature have nothing to do with what the Constitution requires or does not require. In the past,~ the term nconcurrent resolution” has generally been used to apply to those resolutions to which the concurrence of both Houses of the Legislature is necessary, and to which Article IV, Section 15, providing for approval by the Governor, is applicable. The term “joint resolution” has in the past been applied solely to those resolutions proposing Consti- tutional amendments. These latter resolutions are not subject to the ap- proval of the ,Governor. As to them, Article IV, Section 15 has no appli- cation.

Insofar as the terms “concurrent res,olution” and “joint resolution” provide a ready means of distinguishing between the two types of legisla-. tive actions, they z+re useful. Insofar as they might be thought to indicate some different manner of action by the Legislature, they are meangingless. There is nothing in the Texas Constitution to prevent the Legislature from calling a resolution proposing a constitutional amendment a concurrent re- solution, nor is there anything to prevent the Legislature from ca,llmg an amendment subject to the approval of the Governor, a joint resolution. R?- gardless of what a resolution is called, if its purpose is to propose a con- stitutional amendment, and it is passed by both Houses of the Legislature, it is not subject to the Governor’s approval.

SUMMARY

The Texas Legislatur~e, sitting in special session. may request the Congress of the United States to call a c‘ox>- vention to amend the United States Constitution even though this subject was not included in the proclamation of the Go\ ei - nor calling the session, and provided the resolution passes both Houses of the Legisiature,~ no valid objection may be made to it.

The terms “concurrent resolution” and “joint rtso lution” are matters of nomenclature only and it is necessar.y to look at the content of the resolution itself to determine what constitutional provisions are applicable.

Yours very truly,

Attorne#General of Texas

-,5694-Honorable Preston Smit.h, page 8 (M,.1167)

APPROb’ED: OPINlON COMMIT TEE

Kerns Taylor, Chairman W. E. Allen, Co-Chairman

Houghton Brownlee J. C. Davis Milton Richardson John Reeves

SAMiJEL D. MQANIEL Staff Legal Assistant

ALFRED WALKER Executive Assistant

NOLA WHITE First Assistant

-5695-