                                @ffice       of tip Elttornep @eneral
                                               Sdate of EexaG
DAN MORALES
 ATTORNEY
      GWERAL                                    December 21,199s



   The Honorable Jerry Patterson                       Opinion No. DM-495
   Chair, Committee on Veteran Affairs &
    Military Installations                             Re: Whether the legislature may authorize a state
   Texas State Senate                                  agency to construe Texas Constitution article XVI,
   P.O. Box 12068                                      section 50, the home equity amendment  (RQ-1167)
   Austin, Texas 7871 l-2068


   Dear Senator Patterson:

            You ask whether the legislature, either by statute or by constitutional amendment approved
   by the voters, may authorize a state agency to construe the provisions of article XVI, section 50 of
   the Texas Constitution.   The most recent amendment to article XVI, section 50 was approved by
   Texas voters in a general election held on November 4, 1997. The amendment added types of debt
   that may be enforced by foreclosure against a homestead, including an extension of credit secured
   by the borrower’s equity in the homestead, popularly known as a “home equity loan.” As your letter
   points out, the amendment has given rise to numerous questions regarding its construction. Section
   50 does not authorize the legislature to enact general implementing legislation or empower a state
   agency to adopt interpretive rules. Consequently, the state is faced with an environment of
   uncertainty as to how lenders, builders, insurers, borrowers, and others may properly negotiate
   enforceable home equity loans. You tell us that the legislature seeks to appoint a state agency to
   resolve these complicated questions as they arise.

            We cannot tell you in advance whether any particular legislative action you might take will
   be valid, but we can advise you of the basic legal principles governing your question.

            We begin with your proposal to grant interpretive authority to a state agency by statute.
   Article III, section 1 of the Texas Constitution vests legislative power in the Texas Legislature.’
   This means, as a general rule, that the legislature has the power to enact any law that is not in
   violation of state or federal constitutional provisions.2 And, where the legislature has established
   a sufficient standard of guidance on a particular policy of law, it may delegate power to executive



             ‘Tex. Const. art. III, 5 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.“‘).

            lDe Sham v. Webb, 113 S.W.Zd 519, 523 (Tex. 1938); Brown v. City     ofGalveston,   75 S.W. 488,493   (Tex.
   1903).
The Honorable Jerry Patterson           - Page 2              (DM-495)




agencies to prescribe and administer the details of the law.’ Any limitations on the legislature’s
power must be shown by express words in the constitution or by necessary implication.4 When
reviewing the legislature’s power to enact a particular statute, courts apply a strong presumption that
the statute is valid, and a court will not declare a statute invalid unless it is clearly unconstitutional.s

          In general, then, the legislature may enact any law that is not in conflict with the constitution.
Your particular question is whether the legislature may legally authorize and empower a state agency
to construe and interpret the provisions of section 50 of the Texas Constitution as it now stands. The
answer to your question, strictly read, is no. “[Tlhe Legislature has no authority to interpret or
declare a matter of constitutional         construction,“6 nor may it delegate such authority to an
administrative agency.’ To do so, absent express constitutional authorization, would be to usurp the
powers ofthe judiciary in violation ofthe separation ofpowers principles set out in article II, section
 1 of the Texas Constitution.’ Below we will discuss the interpretive powers that might be authorized
by the constitution.     But as section 50 now stands, neither the legislature nor any state agency has
the power to declare definitively what it means. The ultimate power to construe constitutional
provisions lies solely with the courk9

         This does not mean, however, that the legislature or a state agency may not in fact construe
the constitution.  Some provisions of the Texas Constitution give the legislature, a state agency, or
a court the power to regulate in the subject area of the constitutional provision. For example, article
V, section 24 provides that certain county officers may be removed from office “for incompetency,
official misconduct, habitual drunkenness, or other causes defined by law,” impliedly authorizing
the legislature to construct causes for removal. (Emphasis added.) Other grants of regulatory
authority are more explicit. Article III, section 47(b), provides: “The Legislature by law may



           ‘Railroad Commh    v. Lone Star Gas Co., 844 S.W.Zd 619,689.90       (Tex. 1992),

           ‘Brown Y. City of Galveston, 75 S.W. 488,493 (Tex. 1903).

           ‘Shepherd v. San Jacinto Jr. College Dist., 363 S.W.2d 742,743,750-51 (Tex. 1962).

        6PoweN v. State, 17 Tex. Ct. App. 345,350 (1884); seeBarnettv. State, 62 S.W. 765.769-77 (Tex. Grim. App.
1900) (Davidson, J., dissenting); Attorney General Opinion M-1201 (1990) at 8.

          “‘The legislature has no strictly judicial functions; and has no power to delegate to a hoard a function which
it does not itselfpossess.”  Sun Gil Co. v. Potter, 182 S.W.2d 923,928 (Tex. Civ. App.--Austin 1944), rev’d on other
grounds, 189 S.W.2d 482 (Tex. 1945).

          ‘Article II, section 1 of the Texas Constitution provides: “The powers of the Government ofthe State of Texas
shall be divided into three distinct departments, each of which shall be confided to a separate body of magistracy, to wit:
Those which are Legislative to one; those which are Executive to another, and those which are Judicial to another; and
no person, OI collection of persons, being of one of these departments, shall exercise any power properly attached to
either of fhe others, except in the instances herein expressly permitted.”

           ?Yee Hays County AppraisalDist.   v. Mayo Kirby Springs, Inc., 903 S.W.2d 394,397 (Tex. App.--Austin      1995,
no wit).



                                                               p.   2821
The Honorable        Jerry Patterson   - Page 3               (DM-495)




authorize and regulate bingo games          .” When given the power to implement constitutional
provisions, the legislature may define terms that are not defined in the constitution itself, provided
the definitions constitute reasonable interpretations of the constitutional language and do not do
violence to the plain meaning and intent of the framers.‘0

         Thus in Schwenke v. State the court held that an administrative agency designated by the
legislature could define the causes for which a county officer could be removed from office under
article V, section24.” AndinAerospace       Optimist Club v. Texas Alcoholic Beverage Commission,‘z
the court upheld the legislature’s interpretation of the term “proceeds” as used in the constitutional
provision regarding bingo proceeds, saying:           “The legislature’s practical interpretation of a
constitutional term can be a valuable aid in determining the meaning and intention of that term in
cases of doubt.“13 In ways such as these, the legislature construes the constitution.         While not
binding on the courts, these constructions are given weight. Whether a legislative construction is
a reasonable interpretation ofthe constitutionultimately    remains amatter for the judiciary to decide.

         Even where no implementing authority is given, a construction of a constitutional provision
given by the legislature or an executive agency will be given weight by a court in determining the
meaning of the provision. I4 A contemporaneous          construction that has been acquiesced in and
adhered to for a long period of time is entitled to great weight.15 For example, the court in Panas
v. Texas Breeders & Racing Associution’6 considered a law regulating horse racing. The law was
challenged on the grounds that it violated article III, section 47 ofthe constitution, which at that time
prohibited “the establishment of lotteries          or other evasions involving the lottery principle,
established or existing in other States.“” The court ofappeals held that the legislature’s legalization
of horse racing constituted an interpretation that horse racing did not violate the constitutional




          ‘%vearingen Y. CiiyofTaarkana,596S.W.2d        157,160n.l (Tex.Civ.App.--Texarkana 1979,mitref           dn.r.e.)
(citing San Antonio Conservation Sot ‘y, Inc. v. City ofSun Antonio, 455 S.W.2d 743 (Tex. 1970)).

            “Schwenke v. State, 960 S.W.2d 227,233 (Tex. App.--Corpus Christi 1997, pet. denied) (“Incompetence     is
merely one of the four grounds for removal from oftice set out in article V, section 24. Each of these grounds:
incompetence, official misconduct, habitual drunkenness, or other causes defmed by law, requires interpretation. That
interpretation is left to the legislature and the courts.“).

         “886 S.W.2d 556 (Tex. App.--Austin       1994, no wit).

         “Id. at 560.

         “Walker v. Baker, 196 S.W.Zd 324,327       (Tex. 1946)

         “Director    ofthe Dep’t ofAgric.   & Env’t v. Printing Indus. Ass’n, 600 S.W.2d 264,269   (Tex. 1980).

         I680 S.W.2d 1020 (Tex. Civ. App.--Galveston       1935, wit dism’d w.o.j.),

         “Id. at 1024.



                                                               p.   2822
The Honorable      Jerry Patterson     - Page 4              (DM-495)




prohibition against lotteries. Unless clearly wrong, the court said, a legislative construction                    of a
constitutional provision will not be set aside.”

          Certain provisions in the home equity amendment authorize legislative action, creating
avenues for legislative       or executive interpretations    of those provisions.        For example,
section 50(a)(6) provides that an enforceable home equity loan is one that “permits a lender to
contract for and receive any fixed or variable rate of interest authorized under statute.” (Emphasis
added.) And section 50(b) prohibits the sale or abandonment of a homestead without the consent
of each owner and spouse of each owner “given in such a manner as may beprescribed by law.”
(Emphasis added.) The legislature has already incorporated into statutory law someofthe provisions
of section 50, even though not expressly instructed by the constitution to do so. Section 41.001 of
the Property Code exempts homesteads from seizure for the claims of creditors, except for those
claims listed in the statute, which claims mirror the debts listed in section SO(a)(l) through 50(a)(5)
of article XVI.‘9 And section 53.254, regarding the requirements of a lien on a homestead for a
residential construction     loan, incorporates some of section 50’s requirements           for a home
improvement      loan. To the extent that they construe the constitution, laws such as these are
legislative interpretations and will be given weight by a court, unless clearly wrong?O

         The home equity amendment gives no general implementing authority to the legislature.
Nevertheless, given the legislature’s plenary powers, we see no constitutional prohibition on the
legislature authorizing a state agency to adopt rules implementing the requirements of section 50.
Any such delegation of power would have to be consistent with the provisions of section 50,
including those directing the state supreme court and the state Finance Commission to take certain
actions with respect to home equity lending. *’ Again, while not binding on the courts, executive
constructions will be given weight by a court in construing the constitution. Whether an agency’s
interpretation of section 50 conforms to the requirements of the constitutional provision ultimately
will be a question for the courts.

         This brings us to your proposal to amend the constitution. The constitution may be amended
to create any law that the voters see fit to approvez2 and that is not inconsistent with the United States


         ‘8Id.

          ‘The debts enforceable against a homestead listed in section 41.001 are debts for: (1) purchase money; (2)
taxes; (3) home improvements;   (4) owelty of partition; and (5) refinance of a lien. Curiously, section 41.001 does not
include as permissible encumbrances home equity loans or reverse mortgages as provided for in section 50(a)(6) and
50(a)(7) of the constitution.

        “See In re Bradley, 960 F.2d 502,Sl     I 11.18 (5th Cir. 1992), cert. denied, 507 U.S. 971 (1993); In reMoody,
862 F.2d 1194, 1201 (5tb Cir. 1989).

         “See infrn note 26.

         “The    power to amend,   revive or re-enact a   law rests with the people of the State. They can amend the
                                                                                                         (continued...)




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The Honorable        Jerry Patterson        - Page 5                  (DM-495)




Constitution.”   While the purpose of a constitution normally is to establish the basic and general
foundation of a governmental system, in Texas, as one court has noted, “[o]ur Constitution is
distinguished for the particularity of its provisions and the details into which it enters in reference
to matters of government.“*4 This statement is no more clearly evidenced than by the home equity
amendment, which, in nineteen paragraphs with over forty subsections, prescribes in detail the
requirements for debts enforceable by foreclosure on a homestead. Although the wisdom of writing
such details into the constitution has been questioned,25 it is nevertheless not prohibited.

         As we discussed above, the legislature, a state agency, or a court may be given the power to
implement constitutional provisions. While section 50 contains no general grant of implementing
authority, it directs the state Finance Commission and the state supreme court to take certain specific
actions with respect to home equity lending. x We see no prohibition on section 50 being similarly
amended to include a grant of authority to the legislature or to a state agency to regulate with respect
to some or all of its provisions, and in this way construe the constitution. Still, in such a case, the
courts must decide whether any statute or regulation is consistent with the constitution.

         In theory, the state constitution                   could be amended to give a state agency definitive
interpretive powers over constitutional                     provisions, subject to the requirements of the federal




Constitution   in any particular    they desire.”    Stephens v. Sfate, 133 S.W.2d 130, 131 (Tex. Grim. App. 1939).

         21A state constitutional     provision     is invalid if it conflicts with the federal Constitution.    See Reynolds v. Sims,
377 U.S. 533, 584 (1964).

          2’Brown, 75 S.W. at 493.

          2“‘Procedural details should not be written into constitutions, but state constitutions should provide for
reasonable procedural regulations by legislative enactment.” Exparte Davis, 574 S.W.2d 166,169 1x4 (Tex. Grim. App.
1978).

          The United States Supreme Court said inM’Cu~/och                 Y. Mmyland,    17 U.S. 316,407       (4 Wheat.) (1819):

                A constitution, to contain an accurate detail of all the subdivisions of which its great powers
                will admit, and of all the means by which they may be carried into execution, would partake
                of the prolixity of a legal code, and could scarcely be embraced by the human mind. It
                would, probably, never be understood by the public. Its nature, therefore, requires, that only
                its great outlines should be marked, its important objects designated, and the minor
                ingredients which compose those objects, be deduced from the nature of the objects
                theIIlSelVeS.


           ?See Tex. Const. art. XVI, 5 50(r) (directing supreme court to promulgate rules for expedited home equity loan
 foreclosure proceedings);   id. 5 50(s) (directing Finance Commission to research availability, quality, prices, and
 practices of home equity fmancial services and report annually to legislahue).




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The Honorable Jerry Patterson           - Page 6              (DM-495)




Constitution.27 As we discussed above, a statute authorizing a state agency to construe section 50
of the constitution as it now stands would usurp the power of the judiciary branch. However, article
II, section 1 provides for the separation of legislative, judicial, and executive functions “except in
the instances       expressly permitted” in the constitution.      The interpretive commentary to the
constitution explains:

           The Texas Constitution itself vests in each of the three departments certain
           powers which, in their essential nature, have not belonged to it. Article II
           recognizes this when it states that “no person, or collection of persons, being
           of one of these departments, shall exercise any power properly attached to
           either of the others, except in instances herein expressly permitted.”

                       .


                       Thus, it is not exactly correct to state the principle of separation of
               powers as absolutely prohibiting performance by one department of acts
               which by their essential nature belong to another.          Rather, the correct
               statement is that a department may constitutionally        exercise any power
               whatever its essential nature, which has, by the constitution, been delegated
               to it; but that it may not exercise powers not so constitutionally      granted
               which from their essential nature do not fall within its division of
               governmental functions.28

In other words, each branch of government may exercise those powers that are essentially within its
area of function-legislative,   executive, or judicial-and may exercise powers outside of its area if
expressly authorized by the constitution to do so. The interpretive commentary cites such grants of
power already in the constitution:

               [T]he Constitution expressly permits the Supreme Court to exercise the
               essentially legislative power of making certain rules of procedure, and the
               executive power to appoint a clerk. The executive has been granted the
               legislative veto, and the judicial right of pardoning. The legislature has been
               given the judicial powers of impeachment and the right to judge of the
               qualifications   and elections of its own members; and the Senate, the
               essentially executive power ofparticipating in the appointment of ofticials.29




        27See supra note 23.

        28Tex. Const. art. II, 5 1 (intap.   commentary)   (Vernon   1997).

        “Id.




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Thus the constitution could be amended to give to an executive agency judicial-type         interpretive
powers with respect to the home equity amendment.

       We do not advise you on the wisdom of this or any other particular action. We believe,
however, that both statutory and constitutional avenues exist for the legislature to authorize a state
agency to regulate with respect to the home equity amendment.

                                         SUMMARY

                 The legislature has the power to enact any law that is not in violation of
            state or federal constitutional provisions. It may not, however, infringe upon
            the power of the judiciary to construe and interpret the constitution.      Thus
            while the legislature may not, absent express constitutional           authority,
            empower a state agency to definitively construe article XVI, section 50 ofthe
            Texas Constitution-the         home equity amendment-the       legislature may
            authorize a state agency to adopt rules implementing the requirements of the
            home equity amendment. Whether any legislative or administrative action
            is consistent with the requirements ofthe constitution is ultimately a question
             for the courts to decide.

                The constitution may be amended to create any law that the voters see fit
            to approve. The legislature may propose, and the voters may approve, a
            constitutional   amendment authorizing a state agency to implement or
            construe provisions of the constitution.

                                                 Yours very truly,              /




                                                 DAN     MORALES
                                                 Attorney General of Texas

 JORGE VEGA
 First Assistant Attorney General

 SARAH J. SHIRLEY
 Chair, Opinion Committee

 Prepared by Barbara Griffin
 Assistant Attorney General




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