Untitled Texas Attorney General Opinion ( 1945 )

-.
Honorable Bascom Giles, Commissioner
General Land Office
Austin, Texas
Dear Sir: Opinion No. O-6827
Rer H.C.R. 41, 49th Legislature
of Texas, does not confer au-
thority upon the Land Com-
missioner to sell the land
described therein.
Your request for opinion has been received and
carefully considered by this departmerit. We quote from your
request a8 follows:
"I muld appreciate your advise and opinion
regarding the sffeot of House Conourrent Resolution
No. 41 passed by the 49th Legislature. Please inform
mo as to whether or not this Resolution has the
effect of law in aonfsrring the authority upon me to
aall the land descrlbed therein."
Said House Conaurrent Resolution reads as follows:
"H.C.R. No. 41.
"ROUSE CONCURRENT RESOLU'JkON
"WHEREAS, There is a tract of land located in
Waller County near Prairie View Normal and Industrial
College of approximately one hundred (100) acres,
whioh has never been used for any purposs,by the State
of Texas: and
%VHEREAS, Said one hundred (100) acres of land
have been within the enclosure of a private oitizen
and have been in constant use for over twenty-five
(25) years; and
"WREREAS, The said land has never brought any
revenue whataoever to the State of Texas; and
"WHEREW, the said land was given as a gift to
the Governor of the State of Texas when the site of
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Hon. Basoom Giles - Page 2, O-6027
Prairie View Normal and Industrial College was
purchased; and that said land does not adjoin the
land used by Prairie View Normal and Industrial
College; theref,ore, be it
"RESOLVED by the House of Representatives, the
Senate concurring, That the Commissioner of the
General Land Office is hereby authorized to advertise
for sale and award to the highest bidder the said one
hundred (100) acres of land in the Solomon Smith
Survey in Waller County, Abstract 254, described as
follows:
"Be inning in the center of road at a point
South.&%Ev-w est 6.84 varas and north Oo 39' East
5.22 varas from an iron pipe set under fenoe corner
near bend of county road, the Northwest corner of
this tract; thence along osnter of road North 890
43' East 812.9 varas to the upper west line of the
N. W. Bush survey; Thence south loo west 76n.o varas
to an interior comer of the N..W.,Bush survey and
the upper southeast corner of the Solomon Smith Surveyg
thence west 688.86 varas along and with the boundary
line of the N. W. Bush survey to a point in the center
of North-South road; thence North Oo 39' East along
the center of said road 747.2 varaa to the place of
beginning, containing 100 acres; and, be it further
"RESOLVED,That all minerals be reserved for the
use and benefit of the Permanent Public Free School
Fund; and, be it further
"RESOLVED, That the consideration for this land
shall,be paid to the Commissioner of the General Land
Office of the State of Texas for the benefit of the
Permanent Public Free School Fund; that a patent to
the said land shall be issued to the suocessful bidder
by the Governor and the Commissioner of the General
Land Offioe to the State of Texas. Upon the payment
of said consideration and the issuance of said patent,
the title of the successful bidder to said land shall
beoome absolute, subject to the reservations herein
made.
John Lea Smith C. H. Gilmer
President of the Senate Speaker of the House
"I hereby certify that H.C.R. No. 41 was adopted
by the House on April 12, 1945,. and ,that the House
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Hon. Basoom Giles - Page 3, O-6827
oonourred in Senate amendment to H.C.R. No. 41
on May 22, 1945, by the following
_ ._voter Yeas 110,
Nays 0, and 2 present and not voting.
Clarence Jones
Chief Clerk of the House
"I hereby osrtify that H.C.R. No. 41 was
adopted by the Senate, as amended, on May 22, 1945,
by a viva vooe vote.
Noel K. Broan
Secretary of the Senate
APPROVED: May Z&e1945
Coke R. Stevenson
Governor
"FILED IN THE OFFICE OF THE SECRETARY OF
TEXAS, THIS 29TH DAY OF MAY, 1945, AT 9 O'CLOCK
AND 30 MINUTES A.M.
Claude Isbell
Secretary of Statet'
Artiole 3, Section 29 of our State Constitution
provides that the enacting clause of all laws shall bet
"Be it enacted by the Legislature of the State of Texas".
Section 35 of this Article provides that the
subject of a bill shall be expressed in its title.
Said H.C.R. No. 41, supra, contains no enacting
clause and does not express its subject in its title.
Said H.C.R. No. 41, supra, is not a bill. Section
30 of Article 3 of our State Constitution provides in part
as follows:
"No law shall be passed except by bill. . . .I1
We call your attention to the case of the State
of Texas v. Delesdenier, 7 Tax. 76. The facts in this case
show that the Congress of the Republic of Texas passed a
joint resolution purporting to authorize the President to
sell islands owned by the Republic of Texas. Under the
resolution patents were issued on certain lands in Galveston
Island. The Supreme Court of Texas in 1851 held that the
purported,patents were void and that the joint resolution
Han, Easoom (files, Page 4, O-6827
was not a law and was ineffsotive to authorize the sale
of such land in Galveston Island.
The Supreme Court of Texas in the case of City
of San Antonio v. Micklejohn, 33 S.W. 753* 89 Tax. 79,
citing State v. Delesdenier, 7 Tex. 76, said2
"A resolution proper is not a law."
In Moshiem v. Rollins, 79 S.W. (2)-672, the
court said:
"However, if we be mistaken in this conclusion,
this resolution cannot be given the effect of a law.
Our constitution (Article 3p Sec. 30) provides that
Sno law shall be passed, axeept by bill e a 0 City of
San Antonio vs. Miaklejohn, 89 Tax. 79, 33 9-W. 735,
YChis resolution contained the following
paragraph: 'Resolved by the House of Representa-
tives, the Senate concurrin that said corporations
use the necessary care and F??
iligence in keeping their
right of ways clear of any'grassea, weeds or other
plants that tend to spread, to the end that the
increased burdens incident to the enforcement of
this Conservation Act shall not add unnecessary oost
to the farmer in his efforts to protect and conserve
the potential productivity of his aoil.'
"This resolution cannot be regarded as a law
prohibiting tha highway department from planting
or permitting Bermuda Grass to grow along the State
highways,"
In Conley v0 Texas Division of United Daughters
of the Confederaay, 164 S.W. 24, the Court saids
"The chief distinction between a resolution
and a law seems to be that the former is used when-
ever the Legislative body passing it wishes to merely
express an opinion as to some given matter or thing,
and is only to have a temporary effect on such
particular thing; while by the latter it is intended
to permanently direct and control matters applying to
persons or things in general. See 34 Cyc. p* 1667;
25 Cyc. po 163."
Also, see Rumble Oil & Refining Co. v0 State,
104 S.W. (2) 174.
You are respectfully advised that invisw of the
above authorities, it is the opinion of this department
Hon. Baaoom Giles - Page 5, O-6827
that House Concurrent Resolution No. 41 of the 49th
Legislature of Texas is ineffective and does not authorize
the Land Commissioner of Texas to sell the land described
in the Resolution. For the Commissioner to be so authorized
an Act of the Legislature would be required and a mere
resolution is wholly insufficient.
Very truly yours,
ATTORNEY GENEXAL OF TEXAS
s/ Wm. J. Fanning
By Wm. J. Fanning
Assistant
WJP:BT-og
Approved Sep. 26, 1945
s/ Carlos C. Ashley
First Assistant Attorney General
Approved opinion committee
By BWB, Chairman
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