                        T%~EA'ITORNEY    GENERAL
                                OF TEXAS
                                     Aus-rm.      TRKAe          78711




                                              January    17, 1974


    The Honorable  Bill Meier,  Chairman                            Opinion No.    H-    217
    Convention Organization   Committee
    Texas State Senate                                              Re:   May Constitutional
    Austin, Texas                                                         Convention propose
                                                                          additions to Texas
    Dear     Delegate     Meier:                                          Bill of Rights?

           Your letter requesting our opinion, after quoting subsection                    (8) of
    Sec.    2 of Article 17 of the Texas Constitution, continues:

              “Some interest has been exhibited in the Constitutional
              Revision Commission        hearings and in correspondence
              to convention delegates in expanding the Texas Bill of
              Rights to include such items as a right to work, a right
              to live, and a right to a clean environment,       among
              others.   So that we may proceed to plan for an orderly
              convention,   at the request of the Convention Organ-
              ization Committee    members,      it is desirable  that we
              establish at this time whether or not items may be
              added to the Texas Bill of Rights.
                                    ..~.

               “The     specific   question    I propose   is:

                   “In light of your earlier        opinion      (H-121) which stated
               . . a

                          ‘Therefore,    it is our opinion that the
                          Constitutional    Convention has only those
                          powers which are expressly      granted
                          to it by Article 17,    0 2,and must oper-
i                         ate in the framework which that provision
                          prescribes.    ’

               “and in view of the limiting         language       of subsection   (g)
               which states , . .




                                                    p.   1010
The Honorable    Bill Meier,   page 2        (H-217)




                ‘(g)  The Bill of Rights of the present
                Texas Constitution   shall bs retained
                in full. ’

        “may the Constitutional  Convention,   convening in January,  1974,
        propose additions to the Bill of Rights, which is Article I of
        the present Texas Constitution? ”

    Your question and our answer to it obviously are limited          to the powers
of the Constitutional  Convention functioning pursuant to Sec.        2 of Article 17
of the Constitution,  adopted in November,    1972.

    Rights guaranteed by the Bill of Rights have the same constitutional
dignity as rights guaranteed      elsewhere in the Constitution.       The lang-
uage of subsection    (g) clearly indicates that. at a minimum,         the present
Bill of Rights must be carried forward in    -- full  into any new   Constitution.
Nothing in that subsection would prevent addition of other tights,           else-
where in the Constitution,      so long as those newly added rights do not alter
or modify rights guaranteed by the Bill of Rights.          Otherwise     much alter-
ation or modification    would result in not carrying the Bill of Rights
forward “in full”, whether such modification         occurred   directly or indirectly

     This much is clear.    What is not totally clear from the language
of subsection  (g) is whether such new rights as you have mentioned may be
included in the new Constitution &as        a part of the general provisions,
or whether they might be added as additions to Article I. the, Bill -of Rights.

     We have found no case directly in point on this question, and must therefore
utilize general rules of statutory construction including determination of legis-
lative intent, to arrive at an answer.

    Our attempt to determine   the intent of the Legislature   in proposing
subsection (g) of Article 17, Se.c. 2, and of the people of the State in adopting
it, requires that we look to the background of the provision,    to the words
used, and to subsequent interpretations   given it.

    In the course of our inquiries,      Senator Nelson A. Wolff,   one of the
sponsors of the resolution  leading     to the adoption of Sec. 2 of Article 17.
has advised us:




                                        p.    1011
,




    The Honorable     Bill Meier,   page 3   (H-217)




              “The intent of the subsection was to guarantee that the
              existing language of the Bill of Rights of the 1876
              Constitution would not be altered by deletion or revised
              language   of existing provisions.

              “I do not believe that the intent of subsection    (g) was
              to prohibit any additions but rather to insure     retention
              of all eldsting rights and language.

              “While,    . . . that provision was probably not
               necifically   designed to prohibit any addition, but
              zather to preserve     intact the language of the 1876
              Bill of Rights, I am firmly convinced that many of
              the legislators   who voted for the resolution and the
              amendment which added this language intended that
              the Bill of Rights should not be altered in any way,
              either by addition or by deletion     I’

        We are advised     by Sam Coats,     a sponsor   of the subsection   (gl language:

              “As a co-sponsor    of HJR 61, I felt it essential  to leave the
              present Bill of Rights in the Texas Constitution      completely
              intact in order to assure passage    of HJR 61. It was my
              intention in sponsoring the amendment      to the resolution
              that the present Bill of Rights be left completely     alone by
              the Constitutional  Convention.   Consequently,    the amend-
              ment was designed to remove the present Bill of Rights
              from the purview of the Convention and prevent it from
              being changed in any way, either by addition or deletion. ”

              Ben Bynum, a principal sponsor of H. J. R. 61 of the 62nd Legislature,
    calling   for the submission of Article 17, Sec. 2, to the voters, has written us:

              “I feel compelled to make several observations        relating to
              the adoption of this amendment      since in retrospect,    I
              realize that there could be some confusion as to the precise
              meaning of the provision.     At the time of adoption and indeed;
              subsequent to that adoption,    the intent of the House of Rep-
              resentatives,   which added the language was clear.        In
              appxting    the amendment by Mr. Coates,       with whom I worked
              closely on the resolution,   I intended to prohibit the changing



                                             p.   1012
The Honorable     Bill Meier,   page 4       (H-217)




       in anv manner.    either bv addition or deletion,   of any portion
       of the Bill of Rights.   It was my feeling then, as it is now,
       that the fundamental guarantees     afforded to all the citizens
       of Texas by the Bill of Rights contained in the 1876 Consti-
       tution have not changed and should not be altered in any
       fashion.    What the Legislature   proposed in H. J. R. 61 was
       a Convention which would re-evaluate        our framework of
       State and local government     in Texas and the divisions of
        responsibilities  among the branches of government;       it was
       not, in my opinion, the intent of the Legislature      to alter
       in ‘any way fundamental principles     of human rights. ” (Em-
       phasis added)

      The public’s understanding    of the meaning of Article 17. Sec. 2, was doubt-
less shaped in significant part by media statements preceding the election.
We have looked to newspaper articles         advising the public on the proposed
amendment prior to its adoption in November,           1972, and find statements  such
as:    “Only the Bill of Rights is exempted from consideration.       ” (Mike
Kingston,    Dallas Morning News, October 17, 1972); ” . . . any new docu-
ment produced by the legislature       in 1974 must contain the current constitution’s
bill of rights . . . “, (Sam Kinch, Jr.,      Dallas Morning News, August 12.
1972);    “The existing Bill of Rights,    for example,   would be preserved   untouched
by the draftsman”      (Stewart Davis,    Dallas Morning News, September 2, 1972);
 I7 . . . requires that the constitutional    convention not disturb the bill of rights,
which must be retained, ” (Clay Robinson,        San Antonio Light, September  24,
1972); “One thing would be held out of reach to the convention - the 29 -
section bill of rights . . . .‘I (Robert Heard, Corpus Christi Caller,     October 24,
1972);   “The bill of rights now in the constitution would not be altered or revised,
but fully retained in any new document”      (Bill Coulter,  Houston Post, October 27,
1972).   Others might be cited.

    Various     interested   groups   have    suggested   varied   interpretations.

     The Constitutional  Revision Commission,    created by authority of Sec. 2            _
of Article 17, did not itself determine  the precise meaning of subsection    (g).
It did not add to or delete from the Bill of Rights in its proposed revision.
Its published commentary      states:




                                             p.   1013
The Honorable   Bill   Meier,   page 5        (H-217)




        “The Commission      did not undertake any changes in the
        Bill of Rights (Article   I of the Constitution  of 1876)
        since the constitutional   amendment which initiated
        the revision procedure     requires that the Bill of Rights
        be retained in full.    Therefore,  no commentary     for
        the Bill of Rights is provided in this report.”

    When we consider all of the evidence which has been made available
to us we are compelled    to conclude that it was the general intent of the
Legislature   and of the people of Texas in submitting and adopting,     res-
pectively,  subsection  (g) that the provision would prohibit any change
in the Bill of Rights either by deleting or altering the existing sections
or by adding new ones as a part of the new Constitution’s     Bill of Rights.

    We do not interpret    the language as prohibiting the insertion of “rights”
provisions   in other Articles   of the Constitution.     We must add, however.
that the admonition   of subsection (g) that the Bill of Rights “shall be retained
in full” is a substantial   one and, no matter where a provision may be in-
serted or what right it may protect,      no provision appearing in the proposed
Constitution may either directly or indirectly        alter or modify the effect of
any existing provision    of the Bill of Rights.

                                SUMMARY

            Article  17, Sec. 2, subsection     (g) of the
        Constitution   of 1876 requires that any new
        Constitution   proposed by the Constitutional
        Convention retain the present Bill of Rights
        exactly as it is, without addition or deletion,
        and that no other provision elsewhere       in the
        Constitution   may in any way alter the effect of
        any provision    of the Bill of Rights.    “Ri ghts”
        provisions   which do not alter or modify the
        Bill of Rights,   may be placed in other approp-
        riate articles   of a proposed Constitution.

                                     Very       truly yours,




                                         OHN     L.   HILL
                                                      General   of Texas

                                         p.    1014
The Honorable   Bill Meier,   page   6   (H-217)




DAVID M. KENDALL,        Chairman
Opinion Committee




                                          p.   1015
