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                                       Novet&r     18, 1957
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     Honorable.'W.,:S.~ Heatly,                       Opinion No. WW-323
     Chairman
     State Affairs    Committee                       Re: Constitutionality     of House
     House:of Representatives            !,             ~' Bill No. 1 and House Bill
     Austin,.Texas                                         'No.,,2 of the Second Called
                                                            %&ion,    55th Legislature,
     Dear Mr. Heatly:~                        "                   .
               " You have,requested      the:Opinion  of this office  on the
     constltutLonality     of House ,Bi;ll No. 1 and House Bill No, 2, now
     pendingbefore     'the State Affairs     Committee of,the House.
                                        ,~,
              ", We shall 'first    consider '3% provisions    of House.,Bill
     No. 1.' Section 1 of the latter bill recites          the purpose of the
     bill~in   the following    terms:
                         " yThe'purpose'Of,this"Act      isto'further     pro-
                ~" video for the maintenance,,of law, peace, and~order
                   in.the operation of the public schools without re-
                   sort to military     occupation or control.        The duties
                   ~arid'powers vested ,in,public   ,officlals     and school
             : : ,'boards under this Act shall be in addition to and
                   cumulative of those with which they are vested un-
              ,' der existing      law for accomplishment of the purpose
                   of this Act or any Section thereof.'!
                   Section 2 provides insubstance          that the Governor,
     through the Department of Public Safety, shall provide assist-
     ance whencalled       upon by local authorities        to maintain peace and
     order :in the operation of public schools.             Said section further
     provides ~that'the Texas National Guard and other 'military
     forces:.shall    not be used for the foregoing         purposes.     There is
     further provision      that when a school board finds that violence,
     or the dangerthereofj;      ,~catslot ;be $revetited'except~ by resort to
     mlXLtary~;~force! o$.ioccupatiion'.'of ;a !ptiblic .~sehool, ,the school
     board.&!y.4loi$e     the sohoof'!atid ~suspe.ndft;s ;operat%on for such
     pepf:&c ai&cfbH&  :ib&&?r~&;fi+&&#,m
                                      ,pt.'m,+&@
                                               g$a'p$ td ,ims;':f&at:n order and
     th~~p~~biQld~i.p~'be~'~rl'~~~eaIld~~e         :~~~&,i$h@:~t~~~~     ,of::t;his Act,
       ..,
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Honorable W. S. Heatly,   ~page 2.        (w-323).


           Section 3 provides that fin the event the National
 Guard or any other military   troops or personnel are employed
or used upon order of any Federal authority on public school
property or in the vicinity    of any public school for direc-
tion or control of the order, operation or attendance at such
,school, the school board~havlng~Jurisdlction    may close the
 school and suspend its operation    so long as said troops re-
main on or within the vicinity     of the school for any such
purposes.
           Section 4 provides that when a school is closed,
pursuant to the provisions   of Section 2 and 3, the salaries
of school personnel shall not be affected    and neither shall
such closure affect  state aid nor accreditation,
            Section 5 provides that the school board shall use
all resources    of the district    to provide out-of-classroom
instruction   for the pupils concerned and for the reopening
of school at the earliest      possible  time that peace and order
can be maintained without the use or occupation of military
forces.
          Section 6 authorizes  the Attorney General to assist
public school boards In the defense of certain suits in the
Federal Courts and further authorizes   the Governor to transfer
funds to the Attorney General for such purposes.
            The foregoing   are the provisions     of House Bill No.1,
with which we are primarily        concerned in passing upon the
constltutionality~of     the bill.      There are other provisions
which we have carefully     considered but, in the interest        of
brevity,   have not mentioned.
           In 78 C.J.S.   p. 624,    it    is   stated:
                   “The power to establish   and maintain
           systems of common schools,     to raise money for
           that purpose by taxation,     and to govern, con-
           trol and regulate such schools when established
           is one of the powers not delegated to the Unlted
           States by the federal conetltutlon,      or prohibited
           by it to the atatea, but,ia reserved to,the       state0
           respectively   or to the people, and the,people
           through the legislature    and the constltutlon     have
           the right to oontrol,and    prescribe   the limits to
           which they will go tn. eupplylng eduoatlon at pub-
           lic expense, ”
Honorable W. S. Heatly,    page 3.    (w-323)



            As early as 1845, provision    was made In our State
Constitution   for the establishment    and maintenance of a system
of public free schools.     ,Our present constitutional  provision
is embodied In Section 1 of Article VII, which reads as follows:
                   “A general diffusion    of knowledge being
           essential   to the preservation     of the liberties
           and rights of the people,     It shall be the duty
           of the Legislature    of the State to establish
           and make suitable provision      for the support
           and maintenance of an efficient       system of public
           free schools. ’
           The foregoing    constitutional   provision  devolves the
duty of establishing    and maintaining public free schools upon
the Legislature.     In defining the authority of the Legislature
In the field of public education,       the Supreme Court of ,Texas,
ins the case of MwMlea               40 S.W. 2d 31, said:
                    “Since the legislature     .has the mandatory duty
           to make suitable provision       for the support and
           maintenance of an efficient        system of public free
           schools,    and has the power to pass any law relative
           thereto,    not prohibited    by the constitution,     it
           necessarily     follows that it has a choice In the
           selection     of methods by which the objects       of the
           organic law may be effectuated.          The Legislature
           alone Is ,to judge what means are necessary and
           appropriate     for a purpose which the constitution
           makes legltlmate.       The legislative    determination
           of the methods, restrictions,         and regulations    IS
           final,    except when so arbitrary      as to be vloiative
           of the constitutional      rights of the citizen.
             The provisions     of House Bill No. 1 are founded upon
the premise that the presence of military          troops In or about
the public schools of the State is not conducive to the maln-
tenance of an “efficient”        system of public free schools.      The
bill,   accordingly,    provides that when troops are employed or
used upon or in the vicinity         of public school property or when
such conditions      of violence    and disorder exist in connection
with the operation of a public school that violence           or the
danger, thereof cannot be prevented,         except by resort to mili-
tary force,    the school may be closed for 80 long as either of
the foregoing     conditions    exist.   By Its express terms, the bill
operates exclusively       against the evil sought to be avoided or
corrected,     The authority     granted thereby comes Into existence
with the evil and ceases to exist when the latter has been
eliminated.      Its provisions     apply alike to all of our schools
and all of our citizens.
Honorable   W. S. Heatly,   page 4.   (W-323)



           With the exceptions  hereinafter    noted, we think
the bill contravenes no provision     of either our state or
federal constitution.    Its provisions   are entirely    consistent
with the constitutional   mandate directed    to the Legislature
for the support and maintenance of an efficient         system of
public free schools.    It also constitutes    a legitimate    exercise
of the police powers of the State.
            The foregoing   conclusion Is based upon the assumption
that the terms of the bill will be observed and enforced In the
manner and only for the purposes as set forth therein.         An act
constitutional    on its face may become unconstitutional     in the
manner of its enforcement,     but It is not within the province
of this office    to assume that an act will be enforced,     or sub-
verted to the accomplishment of unconstitutional       purposes, con-
trary to its express terms.
           A serious constitutional    question is presented In
connection with that portion of Section 2, which prohibits
the use of the Texas National Guard or other military      forces
to prevent violence  and maintain peace and order in the oper-
ation of public schools.     It Is our view that this prohibition
violates  Section 7, Article    IV of the Constitution  of Texas,
which, in speaking of the powers of the Governor, provides:
                     "He shall be Commander-in-Chief of the mill-
            tary forces of the,state,     except when they are
            called into actual service of the United States.
            He shall have the power to call forth the militia
            to execute the laws of the state, to suppress ln-
            surrections,    repel invasions,   and protect the
            frontier    from hostile Incursions by Indians or
            other predatory bands."
            As written,    Section 2 would constitute an infringe-
ment upon the executive powers of the Governor.       We understand,
however, from your supplemental letter,      dated November lbth,
that this section will be amended by the State Affairs       Com-
mittee, pursuant to the request of both the Governor and the
author of the bill,     to provide that the "Texas National Guard
and other military     forces shall not be called or used for
such purposes by the Governor, or any other official      authoriz-
ed by the laws of this state, except as a last reSOrt”.         It IS
our view that the proposed amendment would render said section
constitutional.
Honorable W. S. Heatly,     page.5..   (Ww-323)



            This.conclualon    finds support in the case of Neff et
al v. E&in, 270 S. W. 873 (Writ of error ref.),       which med
the constitutionality      of the Act creating the Texas Banger Force.
The Court said:
                   "The Governor is empowered to call forth
           the militia     to execute the laws of the state, to
           suppress insurrections,      repel invasions,      and
           protect the frontier      from hostile    incursions   by
           Indians or other predatory bands; but it is not
           intimated that the laws shall be executed by the
           militia    alone, but the plain inference       is that
           the militia     is to be used in ,executing the laws
           as against organized violation         of laws, and the
           commission of crime. '. . .
                   II       The Constitution    .    . nowhere limits
           the authoriiy     of the Legislature-in     providing
           means to enforce the laws.        . . .'
It is entirely  consistent  with both our Constitution   and our
form of government thatthe    use ~of the militia be limited to
those circumstances   where the civil  arm of the State is in-
adequate to cope with the situation.
            It has been suggested that Section 6, which authorizes
the Attorney General to assist local school boards in the de-
fense of certain law suits,       and makes funds available      for such
purposes,   is not germane to the general subject matter of the
bill and hence constitutes       a separate subject,    contrary to
Section 35 of Article       III of the Constitution    of Texas.     We do
not subscribe to this view.        Incorporation   in the body of an
Act of the means by which its object may be accomplished does
not render the Act obnoxious to the constitutional           inhibition
against bills    containing more than one subject.        Accordingly,
an Act with one leading subject,        which is expressed in its
title,   may contain appropriate,provisions       designed or tending
to accomplish,     effectuate   or enforce the general object or pur-
pose of the law.       39 Tex. Jur. 90 and the cases there cited.
Although it is our view that Section 6 can be sustained as a
part of House Bill No. 1, the Legislature         might wish to incor-
porate the provision       in a separate bill to remove any doubt
relative   thereto.
            It is noted that the last sentence.of     Section 6,
authorizes   the Governor to transfer   certain funds ~to the office
of the Attorney General. : This:is    a.matter ,which.is notinclud-
ed in.the~caption   of the bill and should be so included.
Honorable   W. S. Heatly,   page 6.   (w-323)



          It is also noted that the caption Indicates  that
either the Governor or the local school board may close a
school, but the body of the Act vests such authority  solely
in the school board.   This is a discrepancy which you will
doubtless wish to correct.
           You are accordingly  advised that it is the opinion
of this office  that House,Blll  No. 1, subject to the adoption
of the proposed amendment to Section 2 thereof and other ,matters
mentioned, is constitutional.
            It is also our view that the same general principles
which sustain the constitutionality       of House Bill No. 1 are ap-
plicable   to House Bill No. 2.    Section 1 of the latter bill,
z;ro;i     provides in substance that when federal troops occupy
            its grounds or yards, or adjacent property,      either
public o$ private,    that the school shall close and remain closed
so long as the troops remain.      As written,   the language Is suf-
ficiently   broad to place school districts     which are adjacent to,
or inclusive    of, military reservations    in a doubtful status.
The school would be compelled to close even though the presence
of the federal troops be in no way connected with or related to
the operation of the school.
             Section 1 of House Bill No. 2 would require and Sec-
tion 3 of~House Bill No. 1 would only authorize a school board
to close the schools when federal troops were used.        If a board
should determine that the presence of the troops rendered the
school inbfficient     and ineffective to carry out its educational
purpose, then in our opinion the board could close the schools
and in doing so would not make Seotion 3 of House Bill No. 1,
unconstitutional.      However, if the troops did not impede the
efficiency    of the school nor render ineffectual    its educational
purpose, it could not close the schools simply to thwart the
federal order.      Because Section 1 of House Bill No. 2 would re-
quire the school to close irrespective      of any effect  the pre-
sence of federal troops might have upon the operation of the
school, the bill is unconstitutional      to this extent.   The bill
could, of course, be amended to remedy this defect.
           Section 5 of House Bill No, 2 provides that no state
funds shall be paid to any school district      which fails to com-
ply with the provisions    of the Act.   This provision    cannot have
any effect   upon the distribution   of the state available    school
fund.   Section 5 of Article    VII of the Constitution   of Texas
renders it mandatory that this fund be distributed       annually to
the several counties according to their scholastic       population.
Honorable W. S. Heatly,     page 7.   (w-323)



This constitutional   provision   may be satisfied only by the dis-
tribution  and application    of the funds and not by withholding
them. Attorney-General's      Opinion No. O-4052 (1942);   Jurnigan
V. Finley,   90 Tex. 205.
            We would suggest that a section be added to clearly
exempt the normal operation of the Reserve Officers     Training
Program, National Guard and Texas State Guard, from in any
manner calling   into effect the provisions   of either bill and
also exempting school districts     operating on Federal Military
Reservations   or adjacent thereto.

                                   SUMMARY

                   House Bill No. 1 of the Second Called
                   Session of the 55th Legislature, is
                   constitutional subject to the matters
                   noted.
                     House Bill No. 2 is unconstitutional
                     for the reasons stated.
                                       Very truly   yours,
                                       WILL WILSON
                                       Attorney General of Texas



LP:zt                                   "Leonard Passmore
                                         Assistant
APPROVED:
OPINION COMMITTEE
Geo. P. Blackburn,      Chairman
Wayland Rivers,   Jr.
John H. Minton,   Jr.
Joe Carroll
Riley   Eugene Fletcher
Grundy Williams
REVIEWED FOR THE ATTORNEY
                        GENERAL
BY: James N. Ludlum
