Untitled Texas Attorney General Opinion ( 1973 )

HE AYTORNEY GENEWAL
0F TEXAS
The Honorable Bill Meier, Chairman Opinion No. H- 121
Subcommittee on Convention Organization
Texas State Senate Re: Questions relating to
Austin, Texas the general authority
of the Constitutional
Dear Senator Meier: Convention
You have requested an opinion of this office on several questions
relative to the powers of the Constitutional Convention called by Article
17, $ 2 of the Texas Constitution and to the procedures which should be
followed by the Convention.
The Texas Constitutional ‘Convention was called by the people through
the adoption of Article 17, $ 2, as an amendment to the existing Constitution
of 1876. It was not called by an act of the Legislature and, therefore, legal
precedents construing the powers and procedures of constitutional conventions
called by legislatures with attempts by the Legislature to limit the power
of the convention are not in point. Nor did our convention result from the
institution of a new government and precedents construing the powers of
so-called revolutionary conventions are not in point either. During the
deliberations of the Convention and until whatever it produces is ratified
by the poeple of the State, the Constitution of 1876, as amended, and the
statutes enacted pursuant to it will remain the law of the land. For a gen-
eral discussion of the procedures and powers of a constitutional convention,
see Gaines v. O’Connell, 204 S.W.2d 425 (Ky. App., 1947); Note, 54 Va. Law. Rev.
995 (1968); Note, 55 Iowa L,aw Rev. 244 (1969).
Therefore, it is .our opinion that the Constitutional Convention has only
those powers which are expressly granted to it by Article 17, $ 2, and must
operate in the framework which that provision prescribes.
Specifically, Article 17, $ 2, of the present Constitution, your basic guide,
provides:
1. The Convention shall be convened at noon on the
second Tuesday in January, 1974.
p. 584
The Honorable Bill Meier, page 2 (H-121)
2. The Convention shall be composed of the members
of the 63rd Legislature.
3. The Lidutenant Governor shall preside over the
Convention until a chairman is elected.
4. The Convention shall (or may) elect other officers;
adopt rules; and publish a journal.
5. Members of the Convention shall be compensated
and receive expenses.
6. The Convention may employ a staff.
7. The Convention is automatically dissolved at 11:59 p, m.
on May 31, 1974 except (a) it may dissolve earlier by
vote of at least two-thirds of its members or (b) it may,
by the same vote, extend its duration for not more than
60 days.
The only requirement concerning the text of any proposed constitution
appears in $2(g) that The Bill of Rights of the preseti Constitution must
be retained in full. As to the method of submitting the end product of the
Convention to the people, $ 2(e) provides:
“(e) The convention, by resolution adopted on
the vote of at least two-thirds of its members, may
submit for a vote of the qualified electors of this
state a new constitution which may contain alternative
articles or sections, or may submit revisions of the
existing constitution which may contain alternative
articles or sections. Each resolution shall specify
the date of the election, the form of the ballots,
and the method of publicizing the proposals to be
voted on. To be adopted, each proposal must receive
the favorable vote of the majority of those voting on
the proposal. The conduct of the election, the can-
vassing of the votes, and the reporting of the returns
shall be as provided for elections under Section 1 of
this article. ‘I
p. 585
The Honorable Bill Meier, pa~ge 3 (H-121)
Your first question is:
“Are the members of the Constitutional Convention
scheduled to convene at noon on the second Tuesday in
January, 1974 limited in making choices pertaining to
Convention structure, Convention officers (type and num-
ber, method of selection, and duties and responsibility),
Convention committees (number, jurisdiction, rules),
and/or ~Convention schedule, by any controlling precedent
other than the resolution granting authority for the holding
of the Convention adopted by popular vote on November 7,
1972, currently appearing as Article 17, Section 2, of the
Texas Constitution, or the applicable provisions of the
Constitution of the United States of America? ”
As to the first three areas you mention, “Convention structure”, “Con-
vention officers” and “Convention committees”, the Convention will be limited
in only a few respects. Members of the Convention must be members of the
63rd Legislature. There must be a “chairman”. The Lieutenant Governor
must preside until the chairman is elected. Other than these, it is our
opinion that the Convention may organize itself as it chooses. It may deter-
mine for itself what other officers and what committees it will have and may
assign to them such responsibilities as it deems advisable. It may prescribe
its own rules including those ,for the operation of its committees.
The “Convention schedule”, on the other hand, appears somewhat more
restricted by Subsections (d) and (f) requiring the Convention to convene at
noon on the second Tuesday in January, 1974, and to be automatically dis-
solved at 11:59 p. m. on May 31, 1974, unless “extended for a period not
to exceed 60 days by resolution. . , . I’ Within that framework, the Con-
vention is free to schedule its sessions and set its own deadlines.
Your second question is as follows:
“Specifically as to Convention officers - - is the
Convention limited in choosing a Chairman of the Con-
vention from its membership, or may the Convention
choose to elect a person as Chairman who is not a
member of the Convention?”
p. 586
The Honorable Bill Meier, page 4 (H-121)
Article 17, $ 2(c), provides that “The members of the 63rd Legislature
shall be convened as a constitutional convention . . . . A person elected to
fill a vacancy in the 63rd Legislature before dissolution of the convention
becomes a member of the convention on taking office as a member of the
Legislature. ”
It is quite clear from this language that only members of the Legis-
lature can be members of, or delegates to, the Convention. That .fact
alone should rule out the election as chairman of a person other than a legis-
lator. Unless the basic ordinance constituting the body prescribes other-
wise, it is the usual and accepted custom and practice in our society in the
selection of the permanent presiding officers of, organized groups to require
by common consent and understanding, that the person selected be a member
of the organization. It should be presumed that the Legislature, in drafting
Article 17, $ 2, and the people in adopting it, intended, in the absence of
express provision to the contrary, that this usual and accepted practice
prevail in the election of a permanent chairman of the convention.
The amendment provisions themselves, when carefully analyzed, lead
to the same inescapable conclusion that the people did not intend to authorize
election of a non-legislator as chairman. The amendment authorizes the
Convention to “elect other officers it deems necessary” without expressly
providing that they be members of the Legislature. It is unreasonable to
suppose that while carefully and strictly limiting m’embership in the Con-
vention to legislators, the people, nevertheless, intended to authorize the
placing of control of the Convention ‘in non-legislator officers.
Paragraph (d) of the amendment provides that “Members of the con-
vention shall receive compensation, mileage, per diem” and that the Con-
vention may “appropriate money from the general revenue fund of the
state treasury” to’provide for the expenses of its members and the employ-
ment of a staff.” Since non-legislators could not be “members of the
convention”, and the chairmen and other officers would not be members of
a “staff”, in the generally accepted meaning of that term, there is no
authority in the amendment for compensating non-legislator officers and
no authority in the Convention to appropriate money to defray their expenses.
It would be unreasonable to assume, that, in adopting the amendment, the
people intended that all members of the Convention and its staff should receive
adequate compensation and that expenses of members should be reimbursed,
p. 587
The Honorable Bill Meier, page 5 (H-121)
but that officers of the Convention, who must bear some of the heaviest
burdens in this important work, would be ineligible to receive either
compensation or reimbursement.
We therefore answer your second question that, in our opinion, the
Convention is limited to choosing its Chairman from among its members.
Your third question is prefaced:
“Article 17, Section 2, subsection [d] of the Texas
Constitution provides that the members of the Constitutional
Convention shall receive compensation as determined by a
five-member committee to be composed of the Governor,
Lieutenant Governor, Speaker of the House, Chief Justice
of the Supreme Court, and Chief Justice of the Court of
Criminal Appeals. ”
You ask:
“May a member of this five-member committee
likewise serve as Convention Chairman without con-
flicting in duties specifically required by this Reso-
lution? ”
We see no prohibited conflict. The potential conflict of interest is no
greater in the situation posed by your question that it is in the situation
created by.other language in Article 17, $ 2(d), which specifies that the
Convention may provide for the reimbursement of expenses of its members
and may appropriate money for that purpose. In either event, it is the
Constitution itself that imposes the double responsibilities, and we cannot
state that to exercise the rights of both positions would present an uncon-
stitutional conflict.
We therefore answer your third question that, in our opinion, a
member of the five-man committee designated to determine the compen-
sation of Convention members, who also is a member of the Convention,
may serve as Convention Chairman without an unconstitutional conflict in
duties.
p. 588
The Honorable Bill Meier. page 6 (H-121)
SUMMARY
1. The Constitutional Convention initiated by
Article 17, § 2, of the Texas Constitution will be
free, within the framework of that provision and
consistent with the Constitutions of Texas and the
United States, to structure itself, to determine and
select its officers and committees, to determine the
duties, authority and powers of its selected officers
and committees, and to schedule its work as it sees
fit.
2. The Chairman of the Convention must be chosen
from the membership of the Convention.
3. A member of the five-man committee charged
with determining the compensation, mileage allowance
and per diem to be received by members of the Con-
vention who also is a member of the Convention is eligible
to serve as Convention Chairman.
Attorney General of Texas
DAVID M. KENDALL, Chairman
Opinion Committee
p. 589