Untitled Texas Attorney General Opinion ( 1971 )

THE ATTORNEY GENERAL
OFTEXAS
AUSTIN. TEXAS 78711
CRAWFOHD c. MARTlN
*x-rORNEY GEN&R*l- May 25, 1971
Honorable Preston Smith Opinion No. M-874
Governor of Texas
Austin, Texas Re: Whether the Governor may
veto proposed constitutional
amendments
Dear Governor Smith:
Your request for an opinion on the above subject matter
asks the following questions:
"1. Does the Constitution require that all
proposed House Joint Resolutions and Senate Joint
Resolutions be submitted to the Governor for approval?
May the Governor veto a proposed House Joint
"2 .
Resolution or Senate Joint Resolution in like manner as
he may veto a bill?
"3 . Are the same Constitutional requirements
applicable to the overriding of a veto of a proposed
House Joint Resolution or Senate Joint Resolution as
are applicable to a bill?
"4 . If a proposed House Joint Resolution or
Senate Joint Resolution is received by the Governor
within the final ten days of the Session, may he,
after adjournment of the Legislature, file same, with
his objections, in the Office of the Secretary of
State and give notice thereof by public proclamation
within twenty days after adjournment and thereby prevent
same from becoming law?"
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. .
Honorable Preston Smith, page 2 (M-874)
Our answers to your questions are based on the
assumption that the House Joint Resolutions or the Senate
Joint Resolutions concerning which you inquired propose
Constitutional amendments. Therefore, our answers to
your questions are limited to a consideration only of
those House Joint Resolutions or Senate Joint Resolutions
which propose Constitutional amendments.
Pursuant to the rules of the Texas Legislature all
proposed Constitutional amendments must be submitted in
the form of either House Joint Resolutions or Senate
Joint Resolutions. We are advised that this has been
the constant practice of the Legislature.
Section 14 of Article IV of the Constitution of
Texas provides:
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Honorable Preston Smith, page 3 (M-874)
"Every bill which shall have passed both houses
of the Legislature shall be presented to the Governor
for his approval. If he approve he shall sign it: but
if he disapprove it, he shall return it, with his
objections, to the House in which it originated, which
House shall enter the objections at large upon its
journal, and proceed to reconsider it. If after such re-
consideration, two-thirds of the members present agree
to pass the bill, it shall be sent, with the objections,
to the otherRuse. by which likewise it shall be re-
considered: and, if approved by two-thirds of the members
of that House, it shall become a law; but in such cases
the votes of both Houses shall be determined by yeas and
nays, and the names of the members voting for and against
the bill shall be entered on the journal of each House
respectively. If any bill shall not be returned by the
Governor with his objections within ten days (Sundays
excepted) after it shall have been presented to him, the
same shall be a law, in alike manner as if he had signed
it, unless the Legislature, by its adjournment, prevent
its return, in which case it shall be a law, unless he
shall file the same, with his objections, in the office
of the Secretary of State and give notice thereof by public
proclamation within twenty days after such adjournment.
If any bill presented to the Governor contains several items
of appropriation he may object to one or more of such items,
and approve the other portion of the bill. In such case
he shall append to the bill, at the time of signing it, a
statement of the items to which he objects, and no item so
objected to shall take effect. If the Legislature be in
session, he shall transmit to the House in which the bill
originated a copy of such statement and the items objected
to shall be separately considered. If, on reconsideration,
one or more of such items be approved by two-thirds of the
members present of each House, the same shall be part of
the law, notwithstanding the objections of the Governor.
If any such bill, containing several items of appropriation,
not having been presented to the Governor ten days
(Sundays excepted) prior to adjournment, be in the hands
of the Governor at the time of adjournment, he shall have
twenty days from such adjournment within which to file
objections to any items thereof and make proclamation of the
same, and such item or items shall not take effect."
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. .
Honorable Preston Smith, page 4 (M-874)
It has been judicially determined that the executive
veto power is found alone in Section 14 of Article IV of the
Constitution of Texas. Fulmore v. Lane, 104 Tex. 499, 140 S.W
405 (1911); Annotation, 35 A.L.R. 600, and cases cited therein
In Fulmore v. Lane, supra, the Court stated:
...The executive veto power is to be found alone
in section 14, art. 4 of the Constitution of this
state. By that section he is authorized to disapprove
any bill in whole, or, if a bill contains several items
of appropriation, he is authorized to object to one
or more of such items. Nowhere in the Constitution is
the authority given the Governor to approve in part and
disapprove in part a bill. The only additional authority
to disapprove a bill in whole is that given to object
to an item or items, where a bill contains several items
of appropriation. It follows conclusively that where
the veto power is attempted to be exercised to object
to a paragraph or portion of a bill other than an item
or items, or to language qualifying an appropriation or
directing the method of its uses, he exceeds the
constitutional authority vested in him, and his
objection to such paragraph, or portion of a bill,
or language qualifying an appropriation, or directing the
method of its use, becomes noneffective. ...." (At p-412)
For additional authorities on veto powers of the Governor,
see Attorney General's Opinion V-1196 (1951) and authorities
cited therein.
Section 1 of Article XVII of the Constitution of Texas
is the only provision in the Constitution concerning the method
of amending the Constitution of Texas. Attorney General's
Opinion V-850 (1949). Section 1 of Article XVII provides:
-4263-
Honorable Preston Smith, page 5 (M-874)
"The Legislature, at any biennial session, by a
vote of two-thirds of all the members elected to each
House, to be entered by yeas and nays on the journals,
may proposed amendments to the Constitution, to be
voted upon by the qualified electors for members of the
Legislature, which proposed amendments shall be duly
published once a week for four weeks, commencing at least
three months before an election, the time of which shall be
specified by the Legislature, in one weekly newspaper of
each county, in which such a newspaper may be published:
and it shall be the duty of the several returning officers of
said election, to open a poll for, and make returns to
the Secretary of State, of the number of legal votes cast
at said election for and against said amendments: and if
more than one be proposed, then the number of votes cast
for and against each of them; and if it shall appear from
said return, that a majority of the votes cast, have
been cast in favor of any amendment, the said amendment
so receiving a majority of the votes.cast, shall become
a part of this Constitution, and proclamation shall be
made by the Governor thereof."
In construing the above quoted provision, it was held in
Attorney General's Opinion V-850:
"By this Article the Legislature is given the power
to propose amendments to the Constitution and to specify
the date upon which the proposal shall be voted upon by
the people. The mandatory formalities with which the
Legislature must comply in the exercise of this broad
power are that:
"(1) two-thirds of all members elected
must vote for the proposal, and
"(2) the vote must be entered by yeas
and nays on the journals.
"The Legislature is at liberty to choose any method
it desires for proposing constitutional amendments so
long as none of the provisions of Article XVII are violated."
4264-
. .
Honorable Preston Smith, page 6 (~-874)
The Legislature is not exercising its ordinary legislative
function when proposing constitutional amendments and the
provisions applicable to ordinary enactments are not applicable.
In Dodd, The Revision and Amendment of State Constitutions
(1910).this principle is stated as follows:
"With reference to restrictions in the constitution
itself, it may be said that the legislature as a body
for the proposal of amendments is bound only by the
rules specifically laid down in the article of the
constitution which regulates the amending process --
that is, it is not bound by the requirements that
its action as a regular legislative body be submitted
to the governor nor by the numerous restrictions usually
imposed as to the procedure on regular legislative
bills. ....I(
In view of the foregoing, you are advised that the
Governor does not have veto powers over proposed constitutional
amendments. In view of our answer to this question, it is
unnecessary to answer the remaining questions.
SUMMARY
The Governor does not have constitutional
power to veto proposed constitutional amendments.
Article IV, Section 14, Texas Constitution:
Article XVII, Section 1, Texas Constitution:
Fulmore v. Lane, 104 Tex.499, 140 S.W. 405
-4265-
Honorable Preston Smith, page 7 (M-874)
(1911); Annotation, 35 A.L.R. 600, and cases
cited therein.
Prepared by John Reeves
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
W. E. Allen, Co-Chairman
Houghton Brownlee
Jack Goodman
Scott Garrison
Pat Bailey
NBADE F. GRIFFIN
Staff Legal Assistant
ALFRED WALKER
Executive Assistant
NOLA WHITE
First Assistant
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