Untitled Texas Attorney General Opinion ( 1972 )

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’
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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.
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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
A. 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 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! cln 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,titi46
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. ”
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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
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