-.




     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
--




     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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