                         February 3, 1958

Honorable Wm. J. Burke          Opinion No. ~~-358
Executive Dlreqtor
State Board of Control          Re: Authority of the 36th
Austin, Texas                       lJ~visloq Association   of
                                    the Texqs Vatlopal    Guard
                                    to erect a Monument as a
                                    memor$al to the Members
                                    of 'the36th Division'
                                    under the provisions of
                                    Senate Bill 437 of the
                                    55th Legislatureand
                                    House ConcurrentResolution
Dear Mr. Burke:                     76 of the 54th Legislature.
          You have requested an opinion from this office
concerning the interpretationof House ConcurrentResolution
76 passed by the 54th Legialature,andits present validity
since the passage of Senate Bill 437 passed by the 55th Legis-
lature. House ConcurrentResolution 76, whloh was passed by
the 54th Legislature,provided In part as follows:
         "RRSOLVRDby the House of Representativesof
    the State of Texas, the Senate concurring,that
    the 36th Division Assoaiatlonbe and it Is hereby
    authorized to erect on the Capitol grounds in
    Austin, a suitable monument as a memorial to the
    members of the 36th Division, Texas Natgonal
    Guard, who served during World Wara 5 and II, the
    monument to be created under the supervisionof
    and at a location seleated by the State Board of
    Control, without any cost to the State of Texas."
          You are concerned with whether or not this resolu-
tion is still in force and effect since the passage of Senate
Bill No. 437 passed by the 55th Legislature,codified as
Article 861b, Vernon's Texas Penal Code, and which Aat reads
in part as follows:
                                                             --




Honorable Wm. J. Burke, Page 2 (~~-358).


          "Section 1. It shall be unlawful, without
     the prior express consent of the Legislature,
     for any officer of this state or any employee
     thereof or any other person to construct,build,
     erect or maintain any building, structure,
     memorial, monument, statue, concesslonor any
     other structure including creation of parking
     areas or the laying of additionalpaving on Zny
     of the grounds that surrounded the State Capitol ,,
     . . .
          " . . .
          "Sec. 5. All laws or parts of laws in
     conflict herewith are repealed."
          Article 861b further provides that It shall be a
misdemeanor for any officer or employee of this State or
other person to violate Section 1 of'the above mentioned
article.
          You have propounded to this office the following
questions to be answered:
          "(1) Since the authority was granted by
     resolution,Is the authority for the erection
     of the monument to the 36th Division valid with
     the passage of S.B. #437?
          "(2) Since the passage of S.B. #k37 which
     became effectiveWay 31, 1957, provided for,prior
     express consent, should the 36th Division of the
     Texas National Guard renew its request before the
     LegislatureAndyobtain a new authorization?
         "(3)  Since it appears that it will be some
    time before the 36th Division monument plans are
    ready for examinationand the final determination
    of the site made, for what approximateperiod is
    the authority granted by resolution or other
    action of the Legislatureconsidered effective
    and/or valid as it relates to the erection of
    monuments, etc., on the Capitol grounds?
Honorable Wm. J. Burke, Page 3 W-358).


          ” 4   Would the Board of Control be in riola-
     tion 0$4 he provisions of S.B. ,#37 to permit the
     tentative selection of a site on the Capiol
     grounds with the speelfic understandingw!th the
     36th Division that final approval was not to be
     granted for the permanent use of any site selected
     until after the approval of plans and specifica-
     tions by the Board of Control?'
          It,was the purpose of the Legislature,in passing
Senate Bill 437, to prevent haphazard constructionof buildings,
monuments and other edifices on the Capitol grounds without
prior approval of the,Leglslature,in order that the Capitol
grounds might retain their attractiveness.
          It is the opinion of this office that Rouse Concur-~
rent Resolution 76, passed by the 54th Legislature,meets the
neoesaary requirementsas set out in Senate Bill 437. In the
situationyou pose, the consent haa already been obtained
from the Legislature. It is olearly the intent of the Legis-
lature that consent of the Legislaturebe the only requirement
necessary before the erection of any typeof structure,and
since the 36th Division has already obtained consent, it would
be foolish to require them to go through the proaedure again.
          Further, It is the opinion of thia office that the
resolution passed by the 54th Legislature Is still in force
and effect and that the Board of Control has authority under
that resolution to permit the tentative selection of a site
on the Capitol ground5 by the 36th Division Associationof
the Texas National Guard. The Board of Control, after the
selection of the site, still has the right to approve the
final plans and specificationsof the monument to be erected
by the Association.

                             SRMMARY

               Since the 36th Division Association
               of the Texas National Guard has
               obtained legislativeconsent to
               construct a monument on the Capitol
Honorable Wm. J. Burke, Page 4 (~~-358).


                grounds, the requirementset out
                in Artiale 861b of Vernon's Texas
                Penal Code has been met.
                                Yours very truly,
                                WILL WILSON
                                Attorney General of Texas



                                 - Llnward Shivers
                                   Assistant
LS:Jl
APPROVED:
OPINION COMMITTEE
Geo. P. Blaakburn, Chairman
Jack Goodman
J. Mark McLaughlin
Ralph R. Rash
REVIEWED FOR THE ATTORNFiYGENERAL
BY:
     W. V. Geppert
