Untitled Texas Attorney General Opinion

Major General Thomas S. Bishop Opinion No. M-329
The Adjutant General
Camp Mabry Re: Constitutionality of Art-
Austin, Texas icles 8.01, 8.03,~8.05~and
8.07; Vernon's Code of Crim-
inal Procedure, and Section
2 of Article 5783, Vernon's
Civil Statutes, as they may
conflict with Article IV,
Section 7, Constitution of
Texas.
Dear General Bishop:
you have requested an opinion on the above styled
matter, which reads, in part, as follows:
"It is requested that an opinion be issued from
your office relative to the constitutionality of
Articles 8.01, 8.03, 8.05 and 8.07 of the Code of
Criminal'Procedure of the State of Texas and
Section 2 of Article 5783,'Texas Revised Civil
Statutes as they may conflict with Article 4,
Section 7 of the Texas Constitution.
This Department is seriously concerned relative
to such Statutes as they apparently de,legate
authority to various public officials through-
out the State to mobilize units of the militia
of the State without prior approval of the
Governor.
This apparent delegated authority, as exercised,
would seriously jeopardize orderly military proce-
dure, chain of command, payment of claims, pension
rights and many other details which require well
defined chain of command."
Article IV, of the Constitution of Texas creates for
Texas, like every other state, a separate executive department
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Major General Thomas S. Bishop, Page 2, (M-329)
in recognition of the well-settled doctrine of separation of
powers. The governor is made the chief executive officer in
the execution and enforcement of our laws. Section 7 of Article
IV uses mandator language with respect to making the governor
commanded n-c ief of the state's military forces:
"He shall be Commander-in-Chief of the Military
forces of the State, except when they are called
into actual service of the United States. He
shall have power to call forth the militia to
execute the laws of the State, to suppress in-
surrections, repel invasions, and protect the
frontier from hostile incursions by Indians
or other predatory bands." (Emphasis supplied).
This similiar common law power has come down to the
executive in America, and is in accord and'not conflicting
with the United States Constitutional provision. It is a
common provision in other state constitutions and all of the
constitutions of Texas have contained such a provision granting
to the governor in the executive department of the state the
power to call out the militia of the state, of which the
Texas National Guard is a part.
The militia-is subject to the orders of the governor;
as commander-in-chief, except in the sole instance when it is
called into the service of the United States. Its officers
are appointed and commissioned by the governor.
93 Cr.R. 68, 246 S.W. 91 (1922). In time-e,
wr he governor has the power to prescribe the regulations
for the militia. Manley v. State, 62 Cr.R. 392, 137 S.W. 1137
(19111.~
The "Interpretive Commentary" concerning Article IV,
Section 7, Constitution of Texas, in Vernon's Texas Constitution,
at page 789, states the following:
"The governor is vested with discretionary
powers in determining whether an emergency re-
quiring military aid in the execution of the
laws has arisen, and his decision upon the sub-
ject is conclusive. However, his judgment as
to measures to be taken to suppress the violence
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Major General Thomas S. Bishop, Page 3, (M-329)
and restore order are not above judicial review.
Sterting v. Constantin, supra." '57 F.2d 227
(193~21 appeal dism. 53 S. Ct. 190, 287 U.S. 378.
(EmphaLis supplied).
No such power whatever to order or call forth the
militia is granted by the Constitution of ~Texas under Article
V, which creates a separate and distinct Judicial Department
and states in what department the judicial power shall be
vested by declaring that it shall be vested in the courts
named. This is the power to adjudicate upon and protect the
rights and interests of individual citizens, construing and
applying the laws to that end. It is the power of the courts
to decide and pronounce judgments and to carry them into effect
between persons and Parties who brina cause before them for
decisions. Morrow v: Corbin, 122 Tex. 553, 62 S.W.Zd 641
(1933).
Nor is any power to delegate to other state officers the
authority to call forth and command the state militia mentioned
under Article III governing the separate and distinct Legisla-
tive Department of our state. While the power or authority of
the legislature is general'to enact laws and it is full and
complete and subject to no restrictions except those provided
by the Constitution of the state, it is without power to usurp
those powers expressly granted to the executive or judicial
departments. Legislation is not permissible where the parti-
cular matter is expressly or impliedly withheld'by the Con-
stitution. 12 Tex.Jur.Zd 397, Const.Law., Sec. 52. As stated
in 12 Tex.Jur.26 403; Cbixtittitihal Law, Section 57,
"The constitution of Texas is the permanent law of
the state operating as a limitation on the powers
of government and a restraint on the exercise of the
legislative prerogative. Whenever the provisions
of the constitution are violated, and officers,
either ministerial, executive, or legislative,
attempt action violative of its provisions, the
courts, anchored close to the Constitution, have
never hesitated to call them back within its limits."
Article II of the Constitution of Texas specifically pro-
vides that ". . . no person, or collection of persons, being of
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Major General Thomas S. Bishop, Page 4, (M-329)
one of these departments, shall exercise any power properly
attached to either of the others, except in the instances
herein expressly permitted."
With these principles before us, we may examine the
constitutionality of that portion of those statutes in question
which, in effect, purport to grant power to other officials
to call forth and order the state militia into state service.
Article 8.01, Vernon Code of Criminal Procedure
"When any officer authorized to execute process
is resisted, or when he has sufficient reason to
believe that he will meet with resistance in execut-
ing the same, he may command as many of the citizens
of his county as he may think proper; and the sheriff
may call any military company in the county to aid
him in overcoming the resistance, and if necessary,
in seizing and arresting the person engaged in such
resistance."
Article 8.03, Vernon's Code of Criminal Procedure
"Whenever, for the.purpose of suppressing riots
or unlawful assemblies,,the aid of military or
militia companies is called, they shall obey the
orders of the civil officer who is engaged in sup-
pressing the same."
Article 8.05, Vernon's Code of Criminal Procedure
"In order to enable the officer to disperse a
riot, he may call to his aid the power of the
county in the same manner as is provided where
it is necessary for the execution of process."
Article 8.07, Vernon's Code of Criminal Procedure
"The Articles~of this Chapter relating to the
suppression of riots apply equally to an unlawful
assembly and other unlawful disturbances, as defined
by the Penal Code."
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Major General Thomas S. Bishop, Page 5, (M-329)
Article 5783; Section 2, Vernon's Civil Statutes
"When there is in any county, city or town in
this state tumult, riot or body of men acting to-
gether by force with intent to commit felony, or
br-eachof the peace, or to,-do,violenceto person
or property, or by force to break or resist the
laws of this state, or when such tumult, riot,
mob or other unlawful act'or violence is threatened
and that fact is made to appear to the Governor, he
may issue his order to any commander of a unit of
the State Military Forces of this state to appear
at the time and place directed, to aid'the civil
authorities to suppress or prevent such'violence
and in executing the laws, provided,'whenever the
necessity for military aid'in preventing or suppress-
ing such violence is immediate and urgent, and when
it is impracticable to furnish such information to
the Governor in time to secure military aid'by his
order, the district judge of'the judicial district
in which the disturbance occurs, or the sheriff of
such county, or the mayor of such city or town may
call in writing for aid upon the commanding officer
of the'State Military Forces stationed therein, or
adjacent thereto; and the civil officer making the
call shall at once notify the Governor of'his action."
Of like tenor to the provisions of the Vernon's Code
of Criminal Procedure mentioned in your request is Article
43.26:
"The sheriff may, when he supposes there will be
a necessity, order such number of citizens of his
county, or request any military or militia company,
to aid in preventing the rescue of a prisoner."
It is apparent that the above statutes do conflict
with the Constitution of Texas, particularly Article IV,
Section 7, thereof, wherein they vest authority in persons
other than the Governor to call out, or issue orders to,
the state militia.
It is well settled that constitutional provisions in
this state are mandatory and when a power is expressly granted
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Major General Thomas S. Bishop, Page 6, (M-329)
by the constitution, which prescribes the means by which or
the manner in which that power is to be exercised, the same
is deemed~exclusive of any or all~others. Houchins v. Plainos,
130 Tex. 413, 110 S.W.2d 549~(1937); 12 Tex.Jur.Zd 361, Constitu-
tional Law, Section 13;~P. 406, Sec. 61, and many cited cases
at footnote 12. The basis of such a construction finds its
roots in our constitutional system of separation of powers,
designed to prevent usurpations and encroachments between de-
partments of government and the various jurisdictional sub-
divisions thereof.
As stated in 12 Tex.Jur.2d 401, Constitutional Law,
Section,55,
"The powers properly belonging to one branch of
government may not be exerted by another. And it
is presumed that the constitution, in selecting
the depositary of a given power, unless it be
otherwise expressed, intended that the depositary
should exercise an exclusive power. . .'I In accord,
State v. Moore, 57 Tex. 307' (1882);
It is further a recognized rule of constitutional in-
terpretation that, “Every positive declaration found in the
constitution contains by implication a prohibition both
against anything contrary thereto and against everything that
could effect a frustration of its objectives and purposes. . .'I
12 Tex.Jur.Zd 404, Constitutional Law, Sec. 58.
It is the opinion of this office that insofar as the
above quoted statutes confer the power upon persons other
than the Governor, including persons serving in other de-
partments of state government, or in county or municipal
government, to call forth the militia of the state, a part
of the Executive Department of the State under the command
and control of the governor, who is vested with this ex-
clusive power and discretion, such statutes must,be held
to be unconstitutional.
In Neff v. Elgin, 270 S.W. 873, 875 (Tex.Civ.App. 1925,
error ref.) IS found a pertinent statement applicable to this
question, wherein the Court said:
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Major General Thomas S. Bishop, Page 7, (M-329)
II
.Our government, national and state, has
. .
been divided into three coordinate branches, one
of equal dignity and'responsibility with the others,
and each supreme within the exercise of’its proper
functions, and cannot while so acting, directly or
indirectly, be controlled, meet with interference,
or be under the supervision or dictation of any
other branch. Such assumption of supervision of
one branch of the government would be subversive
of the system and lead to inextricable confusion. . ."
In accord, see 12 Tex.Jur.Zd, 395; Constitutional Law, Section
50, stating that, "Due regard for the powers and jurisdictions of
the governmental departments by each other is essential to
the solution of governmental and public problems and the
effective carrying out of their respective functions."
However, when members of the state militia or national
guard are not on active duty or in the performance of their
duties pursuant to orders of the Governor or higher authority,
they are subject to being called by a mayor or sheriff or other
peace officer as members of a posse comitatus.
SUMMARY
Articles 8.01, 8.03, 8.05, 8.07 and 43.26 of
the Code'of Criminal Procedure, and Section 2 of
Article 5783; Vernon's Civil Statutes, insofar as
they grant authority to a sheriff of a county, or
a mayor of a city, or a district judge of a judicial
district, to call out and issue orders to the state
militia or state military forces, including the
Texas National Guard, without prior approval of the
Governor of Texas, the Chief Executive of the State,
are unconstitutional.
truly yours,
rney General of Texas
Prepared~by Brandon BickettY
Assistant Attorney General
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Major General Thomas S. Bishop, Page 8, (M-329)
APPROVBP:
OPINION COMMITTEE
Kerns Taylor, Chairman
Alfred Walker
Jim Swearinger
John Banks
Roger Tyler
EXECUTIVE ASSISTANT
Hawthorne Phillips
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