Untitled Texas Attorney General Opinion ( 1968 )

THE .L%TIWDRNEY GENERAL
OPmXAS
Honorable R. H. Cory, Chairman Opinion No. M-309
Vending Machine Investigating Committee
House of Representatives Re: Whether the House
State of Texas Interim Investigating
Austin, Texas Committee, created
pursuant to provi-
sions of House Simple
Resolution 32, First
Called Session, 60th
Legislature, 1968,
is presently legally
constituted, with
the power to issue
subpoenas, compel
attendance of wit-
nesses, production
Dear Mr. Cory: of records, etc.
Your recent letter requests our legal opinion concerning
the above captioned question and states that as Chairman of
the House Vending Machine Investigating Committee the same
is presented to this office by the unanimous request of this
committee.
It is suggested that the committee was not duly and
legally constituted; that such committee's authority, if any,
terminated at the end of the special session at which the
resolution was passed; that the power, if any, of this com-
mittee is limited to the topics of the special legislative
session at which it was created and that it did not extend
to the scope of the hearing involving the vending machine
industry.
The First Called Session, a soecial session. 60th Leuis-
lature, commenced at noon, June 4,-1968, (pursuant to exe:
cutive proclamation issued May 16, 1968) and adjourned at
12:45 P.M. on July 3, 1968 (pursuant to Senate Concurrent
Resolution No. 23).
Pertinent sections of Article III of the Constitution
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Hon. R. Ii.Cory, Page 2 (M-309)
relating to the legislative department of Texas read as
follows:
"Section 1. The Legislative power of this
State shall be vested in a Senate and House of
Representatives, which together shall be styled
'The Legislature of the State of Texas.' (All
emphasis herein has been supplied unless other-
wise specified).
"Sec. 11. Each House may determine the
rules of its own proceedings, . . .
"Sec. 40. When the Legislature shall be
convened in special spusion, there shall be no
elation upon subjects other than those desig-
nated In the proclamation of the Governor calling
such session, or presented to them by the Gover-
nor; and no such session shallbeof longer duration
than thirty days."
The special interim investigating committee in question
here was created pursuant to the provisions of House Simple
Resolution No. 32, adopted by the House of Representatives
on July 1, 1968, which reads as follows:
"WHEREAS, Recently there have been criticisms
and comments relating to the undisclosed financial
interests held in the businesses of permittees and
licensees under the Texas Liquor Control Act of
such a nature as to allow certain persons to
exercise undue and improper influence over the
businesses of said permittees and licensees;
and
"WHEREAS, Sufficient information about the
existence of any undisclosed financial interests
is not available, nor is sufficient information
available on the effect of such undisclosed
financial interests, if any, on the businesses of
permittees and licensees under the Texas Liquor
Control Act upon which to base a decision as to
the need for statutory regulation; now, therefore,
be it
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Hon. R. H. Cory, Page 3 (M-309)
"RESOLVED by,the House of Representatives of
the State of Texas, That an interim .committee is
hereby created to make a study of the financial
and business relationship if any, between permittees
and.licensees under the T:xas Liquor Control Act
and their suppliers of services, mechanical equip-
ment, or merchandise, the character and nature of
any such relationship, if any, for the purpose
of discovering if any supplier of services, mech-
anical equipment, or merchandise is able to exercise
any undue or improper influence as a result of such
relationship over the businesses of permittees and
licensees under the Texas Liquor Control Act; and,
be it further
"RESOLVED, That.this special committee shall
consist of five members of the House of Represen-
tatives, to begappointed by the Speaker of the House;
the committee shall organize and begin its delibera-
tions and research immediately after appointments
to its membership have been made, and shall continue
its study and investigations at such time and in
such places as may be considered necessary during
the interim prior to the convening of the 61st
Legislature; and, be it further
"RESOLVED, That the Texas Legislative Council,
the Texas Liquor Control Board, the Texas Department
of Public Safety, and other state departments or
agencies concerned with the matter, as well as
certain officials of cities and counties, be re-
quested to cooperate with the committee; and, be it
further
"RESOLVED that members of the committee shall
receive no pay for their services but shall be
reimbursed for necessary expenses actually incurred
in the discharge of their duties from the Contingent
Expense Fund of the House of Representatives; and,
be it further
"RESOLVED, That the committee shall make a
complete report to the Clst~Legislature when it
convenes in January 1969, to include findings
and recommendations, and any drafts of legislation
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. 1
Hon. R. H. Cory, Page 4 (M-309)
considered'necessary to implement them." 0Imphasis
enrolled in the Resolution).
In the case of Ex
-_ .parte
.._ Wolters, 64 Cr.R. 238, 144 S.W.
531 (19121, it was held that the Legislature at a special
session has all the power it has at a regular session, ex-
cept so far as restrained by the Constitution and the limita-
tion by Article III, Section 40. The Court held that the
word "legislation" as used in Section 40 had a well-defined
meaning and included only the enactment, repeal, and amend-
ment of laws; consequently the Court further held that the
said constitutional provision did not preclude the appoint-
ment of an investigative committee to obtain information
for future use, even on a subject not submitted by the
Governor. In disposing of the question, the Court affirmed
the proposition that a single branch of the Legislature has
the powers to appoint a committee to gather information
and report recommendations as to the enactment of laws.
In the case of Terre11 v. King, 118 Tex. 237, 14 S.W.2d
786, 789 (1929), the Court held:
"The Senate and the House are separate bodies,
charged with duties, most of which are to be per-
formed by each house separately, despite the fact
that the concurrence of both houses is requisite
to enact laws or certain resolutions. In declaring,
in Section 11 of Article 3, that 'each house may
determine the rules of its own proceedings,' the
Constitution plainly delegates to each house the
choice of methods for the most advantageous use
of its functions in the exercise of the state's
'legislative power,' which Mr. Cooley defines as
'authority under the Constitution to make laws
and to alter and repeal them.' Cooley's Consti-
tutional Limitations (8th Ed.) p. 183. Having
such choice of methods each house is fully auth-
orized to appoint committees to make investigations
and conduct inquiries and gather information
with respect to the operation of subsisting laws
and the need for their improvement, alteration,
or repeal. McCulloch v. Maryland, 4 Wheat. 409,
4 L. Ed. 579."
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Hon. R. H. Cory, Page 5 (M-309)
The Court further stated:
"Since each house continues in existence after
the end of a legislative session, as determined
in Ferguson v. Maddox, 114 Tex. 93, 95, 96, 263 S.W.
888, and since each house is invested with indepen-
dent responsibilities and duties, and is the sole
judge of its own rules of procedure, we think the
power of each house or of the Legislature cannot
be denied to name committees to sit, either during
sessions of the Legislature or in-recess, for the
purpose of gathering information considered requisite
or helpful to enlightened or efficient legislation.
"The authority~of each house to use legisla-
tive committees of inquiry and investigation is
affirmed in Cooley's Constitutional Limitations
(8th Ed.) at page 275, where the author says:
'Each house must also be allowed to
proceed in its own way in the collection
of such information as may seem important
to a proper discharge of its functions
and whenever it is deemed desirable that
witnesses shon!d be examined, the power
and authority to do so is very properly
referred to a committee, with any powers
short of final legislative or judicial
action as may seem necessary or expedient
in the particular case."'
Section 7 of the "Legislative Reorganization Act of 1961,"
Article 5429f, Vernon's Civil Statutes, provides, in part:
"Each House of the Legislature acting in-
dividually, or the two Houses acting jointly, shall
have full power and authority to provide for the
creation of special committees to perform such
functions and to exercise such powers and res-
ponsibilities as shall be determined in the
Resolution creating such committee. During the
life of a special committee, it shall have and
exercise the same powers and authority as are
herein granted to standing committees, subject
to such limitations as may be imposed in the
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Hon. R. H. Cory, Page 6 (M-309)
Resolution creating such special committee, and
shall have such other and additional powers and
authority as may be delegated to it by the Re-
solution creating the committee, subject to
the limitations of law."
In view of the foregoing, it is well settled that each
house of the Legislature is authorized to appoint committees
to gather information requisite or helpful to enlightened
or efficient legislation; that such a committee may be created
by one house during a special session and such creation does
not constitute "legislation" necessary to be designated in
the proclamation of the Governor calling such session; and
that such a committee has the powers and authority as deter-
mined in the Resolution creating it together with the same
powers and authority granted to standing committees, sub-
ject to such limitations as may be imposed in the Resolution
during the life of such special committee.
Therefore, it is the opinion of this office that the
House Interim Investigating~Committee, as created by House
Simple Resolution No. 32, First Called Session, 1968, 60th
Legislature, was a duly and legally authorized committee
on the date of your inquiry (November 20, 1968). It is our
further opinion that the "life" of this committee is that
designated in the Resolution, to-wit, ". . . during the'
interim prior to the convening of the 61st Legislature;
. . .' and that such committee has the power to issue sub-
poenas, compel the attendance of witnesses, compel the
production of records and documents and to swear in wit-
nesses and hear testimony under oath pertaining to the
operation of the vending machine industry in Texas and
its control and/or influence, if any, on the businesses
of permittees and licensees under the Texas Liquor Control
Act.
By further request you inquFr.eabout the proper procedures
for prosecution of a person who, having been summoned as a
witness by a committee, willfully makes default, or who,
having appeared, refuses to answer any question pertinent
to the matter under inquiry, or refuses to produce any
books , papersI records or documents, as required, when
ordered to do so.
Contempt of this nature is described in Section 14 of
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Hon. R. H. Cory, Page 7 (M-309)
Article 5429f, Vernon's Civil Statutes, together with the
penal provisions upon conviction.
Section 15 of said Article provides the proper proce-
dures in prosecution for contempt of a House Committee which,
in part, reads as follows:
Whenever a witness summoned as mentioned
in Section 12 hereof fails to appear to testify,
or fails to produce any books, papers, records
or documents, as required, or whenever any witness
so summoned refuses to answer any questions per-
tinent to the subject under inquiry'before either
House of the Legislature, or any committee thereof,
and the fact of such failure or failures is re-
ported to either House while the Legislature is
ih session, or when the Legislature is not in
session, a statement of facts constituting such
failure is reported to and filed with . . . the
Speaker of the House, it shall be the duty of
. . . the Speaker of the House . . . to certify,
and he shall so certify, the statement of facts
aforesaid under the Seal of the . . . House, . . .
to the District Attorney of Travis County, Texas,
whose duty it shall be to bring the matter before
the Grand Jury for its action, and it shall further
be the duty of said District Attorney to see that
any indictment returned by the Grand Jury is pro-
secuted in the manner prescribed by law."
SUMMARY
The House Interim Investigating Com-
mittee, created pursuant to provisions
of House Simple Resolution No. 32, First
Called Session, 1968, 60th Legislature,
is presently legally constituted, with
the power to issue subpoenas, compel
attendance of witnesses, production of
records and documents and to swear wit-
nesses and hear testimony under oath
pertaining to the operation of the vending
machine industry in Texas and its control
and/or influence, if any, on the businesses
of permittees and licensees under the Texas
Liquor Control Act.
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. * .
.
Hon. R. H. Cory, Page 8 (M-309)
The procedures for prosecuting con-
tempt of a ,House investigating committee
are set forth in Section 15 of Article
5429f, Vernon's Civil Statutes.
truly yours,
Prepared by Monroe Clayton
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
John Grace
Houghton Brownlee, Jr.
Roger Tyler
Alfred Walker
STAFF LEGAL ASSISTANT
Hawthorne Phillips
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