Honorable George G. Roane            opinion No. o-4609
County Attorney                      Re: Constitutionality of Joint Leg-
Fort Bend County                          islative Advisory Committee set
Richmond, Texas                           up by House Bill No. 284, Acts
                                          Regular Session, 47th Legislature.
Dear Sir:

          We have your letter of May 13th, requesting the opinion of
this department upon the constitutionality of the provisions of House
Bill No. 284, Acts Regular Session, 47th Legislature, the Rural Aid Ap-
propriation Bill, creating and prescribing the powers and duties of a
"Joint Legislative Advisory Comittee."

          So much of the caption of House Bill No. 284 as relates to the
Legislative Advisory Committee reads as follows:

          "AN ACT . . . creating a Joint Legislative Advisory
     Committee; defining its powers and duties and giving it
     supervisory powers for the administration of said appro-
     priation and allocation; . . . giving the Joint Legisla-
     tive Advisory Committee certain appellate powers and au-
     thorizing said committee to employ certain persons to aid
     it in carrying out its dutiesj making certain allocations
     for the payment thereof; requiring said committee to make
     certain investigations for recommendations to the legis-
     lature; . . . providing for the duties of the State Board
     of Education in the event said Joint Legislative Advisory
     Committee becomes inoperative for any purpose. . . ."

          The provisions of the Act itself relating to the Joint Legis-
lative Advisory Committee are as follows:

            Article I, Section 1, provides in part as follows:

          "Districts maintaining a school at home and having
     less than an average of one enumerated scholastic per
     square mile are exempt from said minimum scholastic re-
     quirement and are eligible for aid for only one teacher
     unless a geographical barrier necessitates the operation
     of two schools for the same race in said district, such
     geographical barrier to be determined by the State De-
     partment of Education subject to the approval of the
     Joint Legislative Advisory Committee."
    Honorable George G. Roane, page 2 (0-4609)



             Article I, Section 4, provides in part as follows:

             "The sixty-five per cent average daily attendance shall
        be determined by a rule provided therefor by,the Department
        of Education with the approval of the Joint Legislative Ad-
        visory Committee."

             Article II provides in part as follows:

             "The trustees of the districts authorized to apply for
        aid under the provisions of this Act shall send to the State
        Superintendent of Public Instruction on forms provided by
        said authority, and which have been approved by the Joint
        Legislative Advisory Committee, a list of the teachers em-
        ployed in the schools, showing the monthly salaries, experi-
        ewe, and training of each, together with an itemized state-
        ment of all anticipated receipts and budgeted expenditures,
        the length of terms, and such other information, as may be
        required."

             Article III, Section 1, provides in part as follows:

             "Where unusual or extraordinary conditions cause an
        actual increase in enrollment so that the average daily at-
        tendance of the school reaches a point in excess of the net
        scholastics remaining in the district after transfer, an
        adjustment for the remainder of the school year as to the
        number of teachers may be made by the State Superintendent
        subject to the approval of the Joint Legislative Advisory
        Committee, in which case said average daily attendance be-
        comes the basis for the teacher-pupil quota."

             Article IV, Section 1, provides in part as follows:

              "Provided further that school districts whose area
         does not exceed sixteen square miles and having an accred-
         ited high school of sixteen units or more which serve Tea-
         cher Training Institutions as practice teaching laboratories
         shall upon approval of the Joint Legislative Advisory Com-
         mittee receive a tuition payment of not to exceed seven dol-
         lars and fifty cents ($7*50) per month for not to exceed five
         months on all high school pupils enumerated in said district."
.
             Article V, Section 1, provides in part as follows:

              "And providing further that   all school districts con-
         taining one hundred (100) square   miles of territory or more
         may receive Two Dollars ($2) per   month per pupil as trans-
         portation aid when there is need   shown therefor as provided
Honorable George G. Roane, page 3 (0-4609)



    herein and when same is recommended by the Director of
    Equalization and approved by the Joint Legislative Ad-
    visory Committee."

         Article V, Section 2, provides in part as follows:

         "No transportation aid shall be granted for a pupil
    being transported out of his home school district if two
    or more receiving schools are applying for transportation
    aid from such pupil's home district unless the bus routes
    through such districts have been approved by the State
    Department of Education, and such approval confirmed by
    the Joint Legislative Advisory Committee."

         Article V, Section 3, provides in part as follows:

         "A school requesting transportation aid on a stu-
    dent who is not an approved scholastic of his home dis-
    trict, shall list such student separately on the appli-
    cation, giving such information as may be requested by
    the Department of Education and the Joint Legislative
    Advisory Committee. The Department of Education, sub-
    ject to approval of the Joint Legislative Advisory Com-
    mittee, shall formulate rules to determine the eligi-
    bility of students who are not approved scholastics of
    their home district."

         Article VI provides in part as follows:

         "It shall be the duty of the State Superintendent
    of Public Instruction, and he is hereby authorized, to
    take such action and to make such rules and regulations
    not inconsistent with the terms of this Act as may be
    necessary to carry out the provisions and intentions of
    this Act, subject to the approval of the Joint Legisla-
    tive Advisory Committee created in this Act, and for the
    best interest of the school for whose benefit the funds
    are appropriated. . . . In the event the appropriations
    and allocations of aid made herein are insufficient to
    pay the total of all applications showing need, the
    State Superintendent and the Director of Equalization
    subject to the approval of the Joint Legislative Ad-
    visory Committee shall reduce all applications pro rata
    so as to bring aggregate of all applications approved
    within the appropriations and all allocations herein
    made, and in order to accomplish this, said Director
    shall reduce the authorized expenditures of all schools
    applying for salary aid pro rata; shall lower the tui-
    tion rate of all schools applying for tuition pro rata;
Honorable George G. Roane, page 4 (G-4609)



     and decrease the transportation aid of each scholastic
     transported pro rata, so as to bring the total salary
     aid, tuition aid and transportation aid within the al-
     locations herein eet forth. Appeals from the decision
     of the State Superintendent shall be made to the Joint
     Legislative Advisory Committee for adjustments and the
     decisions of said Committee shall be final."

         Article VIII, Section 1, provides in part as follows:

         "For the school year 1941-42,upon the agreement
    of the board of trustees of the districts concerned or
    on petition signed by a majority of the qualified vo-
    ters of the district and subject to the approval of the
    county superintendent, state superintendent, and Joint
    Legislative Advisory Committee, the trustees of a dis-
    trict which may be unable to maintain a satisfactory
    school may transfer entire scholastic enrollment, or
    any number of grades thereof, to a convenient school
    of higher rank, and in such event, all of the funds of
    the district, including the State aid to which the dis-
    trict would otherwise be entitled under the provisions
    of this Act, or such proportionate part thereof as may
    be necessary shall be used in carrying out said agree-
    ment; provided that no aid shall be allowed for teachers
    that are not actually employed in the contracting schools."

         Article IX, Section 1, provides in part as follows:

          "Warrants for all money granted under the provi-
     sions of this Act shall be approved and transmitted by
     the State Superintendent of Public Instruction to treas-
     urers of depositories of school districts to which aid
     is granted in the same manner as warrants for state ap-
     portionments, are not transmitted. Initial payment of
     not more than 56 of salary aid, tuition aid, and trans-
     portation aid may be made by the State Superintendent of
     Public Instruction after September 1st of each year of
     the biennium as soon as a basis for payment can be de-
     termined, and approved by the Joint Legislative Advisory
     committee.... Final payment by warrant of the total amount
     allotted to any one school shall then be made not later
     than June lst, or as early as possible thereafter, after
     the approval and upon the order of the Joint Legislative
     Advisory Committee, except high school tuition."

          Article XII provides as follows:

          "There is hereby provided a special Joint Legislative
     Advisory Committee composed of five (5) members of the
 .    -




Honorable George G. Roane, page 5 (0-4609)



     Senate to be appointed by the President of the Senate and
     five (5) members of the House of Representatives to be ap-
     pointed by the Speaker of the House of Representatives.
     Said Committee shall promptly organize and select from its
     membership a chairman and a secretary and keep a permanent
     record of its proceedings and shall vote as a unit on all
     propositions coming before it for consideratioa. Said Com-
     mittee shall concur with the State Superintendent of Public
     Instruction in regulations and interpretations governing
     the administration of this Act. Said Committee shall also
     receive and adjust appeals from the decision of the State
     Superintendent. Said Committee is also directed to study
     the school laws of this State in order that said laws may
     be recodified. Said members are to be reimbursed for their
     actual and necessary expenses from the Contingent Fund of
     the House of Respective members for the actual and neces-
     sary expenses in performance of their duties as members of
     said Committee on approval of the Chairman of said Joint
     Advisory Committee and the Chairman of the respective Con-
     tingent Expense Committee of each House, not to exceed Five
     Thousand, Five Hundred Dollars ($5,500)for the first year
     of the biennium and Two Thousand, Five Hundred Dollars
     ($2,500) for the second year of the biennium, provided that
     any unexpended balance occurring at the end of the fiscal
     year 1941-42 in any allocation may be transferred and added
     to the appropriation for the year ending August 31, 1943.
     Should for any reason the Joint Legislative Advisory Com-
     mittee fail or refuse to perform the duties herein imposed
     upon it, or should the duties, powers, and functions of said
     Joint Legislative Advisory Committee become inactive or un-
     enforceable, then, and in that event, such duties as are
     herein imposed on said Joint Legislative Advisory Committee
     shall be performed by the State Board of Education the sane
     as if said Committee had not been created or authorized."

          Article XIII, Section 1, provides:

          "For the purpose of promoting the equalization of edu-
     cational opportunities afforded by the State of Texas to all
     emuuerated scholastics within the State as herein provided,
     and for the purpose hereinabove set out, there is hereby ap-
     propriated out of the General Revenue Fund of the State of
     Texas not otherwise appropriated, the sum of Eight Million,
     Four Hundred Forty-four Thousand, One Hundred and Ninety
     Dollars ($8,444,lp0)for the school year ending August 31,
     1942, and Eight Million, Four Hundred Forty-four Thousand,
     One Hundred and Ninety Dollars ($8,444,190) for the school
     year ending August 31, 1943, or so much thereof as may be
     necessary for the biennium ending August 31, 1943, to be
Honorable George G. Roane, page 6 (0-4609)



     allocated and expended under the provisions,of this Act by
     the State Superintendent of Public Inetructlon through the
     Director of Equalization in the State Department of Educa-
     tion and under the supervision of the Joint Legislative Ad-
     visory Corsnitteecreated herein."

          Article XIII, Section 2, provides:

          "It is herein specifically provided that out of the
    money appropriated for each school year of the biennium
    the Sum of Four Million, Three Hundred and Fifty Thousand
    Dollars ($4,350,000) is hereby set aside for salary aid;
    Nine Hundred and Twenty Thousand Dollars ($920,000) for
    High School tuition; Three Million, Thirty-nine Thousand
    and Twenty Dollars ($3,039,020) for transportation aid;
    One Hundred Thirteen Thousand, Nine Hundred and Seventy
    Dollars ($113,970) for the administration of this Act as
    provided herein; Eight Thousand, Two Hundred Dollars
    ($8,200)for the operation of the school plant division
    in the Department of Education, as permitted, authorized,
    and appropriated in the general Departmental Bill, for
    the biennium ending August 31, 1943, Five Thousand Dol-
    lars ($5,000) for the Census Division In the Department
    of Education to be expended by the Director thereof on
    order of the Joint Legislative Advisory Committee for
    checking and approving school census rolls in seasonal
    labor not to exceed forty cents (40#) per hour therefor,
    Eight Thousand Dollars ($8,000) for the purpose of em-
    ploying an auditor and for such other and necessary ex-
    penses incident to the duties of the Joint Legislative
    Advisory Committee. Such auditor shall not receive more
    than Three Thousand, Six Hundred Dollars ($3,600) per
    year out of the sum hereby allocated. The auditor and
    other authorized employees shall be appointed by the Com-
    mittee and their salary and necessary expenses be paid on
    order of said Committee and all such employees shall be
    under the direct supervision of aaid Committee or its
    order. Each of the above named allocations is for each
    year of the biennium.

         "Any unexpended balance under either of the above
    allocations at the end of the first year of the biennium
    shall be transferred by order of the Joint Legislative
    Advisory Committee to any allocation herein created and
    set up."

          So much of the Act as creates the "Joint Legislative Advisory
Committee" for the purpose of studying the school laws of this State
in order that said laws may be recodified is clearly constitutional.
Honorable George G. Roam,    page 7 (0-4609)



Terre11 v. King, 118 Tex. 237, 14 S. W. (2d) 786. The remaining provi-
sions of the Act, however, with reepect to the Joint Legislative Advisory
Committee, the effect of which are to impose upon said Committee of the
Legislature the authority to administer the law, are unconstitutional
for the reaaous to be hereinafter stated.

          Article II, Section 1, of the Constitution of the State of
Texae, provides as follows:

          "The power6 of the Government of the State of Texae shall
     be divided into the 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, or COlleCtiOn of persons, being of one of these de-
     partments shall exercise any power properly attached to either
     of the others, except in the instances herein expressly per-
     mitted."

            Article 3, Section 1, of the Constitution of the State of Texas,
provides:

          "The legislative power of the State shall be vested in a
     Senate and House of Representatives, which together shall be
     styled 'the Legislature of the State of Texas."'

          Of Article 2, Section 1, of the Constitution of Texas, the
late Chief Justice Cureton, in the case of Langever v. Miller, 76 S. W.
(2~3)1035, stated:

          "The origin of this provision is very well known. It
    first found expression, at least with clarity and precision,
    in the writings of Montesquieu with which the members of the
    Federal Constitutional Convention of 1787 were familiar,
    early appeared in the organic laws of the some of the states,
    and was adopted as a basic principle inhe    Constitution of
    the United States in 1.787, from which it entered into the
    Constitutions of nearly all the States, including Texas,
    both as a republic and as a state. Montesquieu's Spirit of
    Laws, (Collier's Edition) pages 151-152; 12 Corpus Juris,
    pages 802, 803, section 234; Sayles Constitutions of Texas,
    post.

         "Under this division of governmental power it is now au
    established and fundamental principle of constitutional law
    that the executive cannot exercise either judicial or legis-
    lative authority; the judicial department cannot be clothed
    with executive or legislative power; and the legislative
    'magistracy' cannot exercise the functions of either the
                                                                   .-




Honorable George G. Roane, page 8 (O-4609)



    Executive or the Judicial Departmenta. 12 Corpus Juris,
    page 802, eection 234, et seq. Corpus Jurie, supra, de-
    claree: 'The separation of the powers was believed by
    Montesquieu, by Blackstone, and by American Conetitution
    makers of the eighteenth century to be one of the chief
    and most admirable characteristics of the English Consti-
    tution. '

         "A principle which is the very foundation of the
    government of the United States and of the several states
    must be deemed one essential to the preservation of the
    rights and liberties of the people, and should be thought-
    fully and faithfully observed by all clothed with the pow-
    ers of government.

         "So important is this division of governmental power
    that it was provided for in the first section of the first
    article of the Constitution of the Republic of Texas, and
    alone it constituted article 2 of each succeeding Consti-
    tution. Sayles' Texas Statutes (Constitutions) Ed. of
    1888, pp. 188, 228, 302, 399, 508."

          It is the function of the legislative branch of the government
to make the laws; it is the function of the executive branch of the gov-
ernment to administer and execute those laws. In the statute under con-
sideration, the Legislature of the State of Texas has undertaken not only
to declare what the law shall be, which is clearly its prerogative, but
has also undertaken to clothe a portion of the membership of the Legis-
lature, the Joint Legislative Advisory Committee, with the authority
to execute and administer the law passed by the Legislature. Under
Article 2, Section 1, of the Constit,utionof the State of Texas, the
Legislature is powerless to clothe itself, or a portion of it5 members,
with executive authority.

          The following language, quoted from the case of People v. Tre-
maine, (New York) 168 N. E. 822, has application to the situation under
consideration:

          "The Legislature has not -de only a law -- i.e., an
     appropriation -- but has made two of its members ex officio
     its executive agents to carry out the law; i.e., to act on
     the segregation of the appropriation. This is a clear and
     conspicuous instance of an attempt by the Legislature to
     confer administrative power upon two of its own members.
     It may not engraft executive duties upon a legislative of-
     fice and thus usurp the executive power by indirection.
     Springer v. Phillipine Islands, 277 U. S. 189, 48 SUP. Ct.
     480, 72 L. Rd. 845.
Honorable George G. Roane, page 9 (0-4609)



         "Should the question arise whether the appointments
    under consideration are legislative or admini5trative, a
    dilema presents itself either side of which is fatalto
    the contention of the reepondent. If they are legisla-
    tive in character, the appointment amounts to a delega-
    tion of the legislative power over appropriations. The
    Legislature cannot secure relief from its duties or re-
    sponsibilitieB by a general delegation of legislative
    power to someone else. People v. C. Krinck Packing Com-
    pany, 214 N. Y. 121, 108 N. E. 278, Anno. Cas. 1916B,
    1051. The power to itemize legislative appropriations
    is the legislative power which it may exercise if it sees
    fit as long as the matter is in its hands. If the power
    to approve the segregation of lump Bum appropriations may
    be delegated to anyone, even to one or two members of the
    Legislature, it necessarily follow6 that the power to seg-
    regate such appropriations may also be conferred upon such
    delegates. The conclusion would then inevitably be that
    the Legislature could make lump sum appropriations and
    delegate the power to two of its members to segregate the
    same, not only within a department but among departments.
    To visualize an extreme cazle,one lump Bum appropriation
    might be made to be segregated by the committee chairmen.
    Such a delegation of legislative power would be abhorent
    to all our notiona   of legislation on the matter of ap-
    propriations. It would amount to a casting on others of
    a great measure of legislative reBponsibility assumed by
    the members themselves by their oath faithfully to dis-
    charge the duties of their office. If, on the other hand,
    the power is administrative, it has no real relation to
    legislative power. The head of the department does not
    legislate when he segregates a lump sum appropriation.
    The legislation is complete when the appropriation is made.
    The Legislature might make the segregation itself, but it
    may not confer administrative powers upon its members with-
    out giving them, unconstitutionally, civil appointments to
    administrative offices. It might by general law confer the
    power of segregation or approval of segregation upon any
    one but its own members subject to the provisions of the
    Constitution (Article~5), hereinafter discussed, if appli-
    cable, but the Constitution (Article 3, Section 7, supra)
    makes its own members ineligible to such an appointment.~

         "It follows that so much of the appropriation bills
    in question as confers powers on the legislative chairman
    to approve segregations is unconstitutional and void."

         See also the caBe of Stockman v. Leddy, 129 Pac. 220.
                                                                     -   .,   .




Honorable George G. Roane, page 10 (0-4609)



          Though 50 much of the Act as purport5 to confer upon the Joint
Legislative Advisory Committee power to execute and administer the pro-
visions of the Act is unconstitutional, nevertheleee those duties, powers,
and function5 of the Joint Legislative Advisory Committee do not wholly
fail. This is 50 because the Legislature anticipated that the attempt
to confer such authority upon the Joint Legislative Advisory Committee
would probably violate the Constitution of the State of Texas, and, in
recognition of that, provided in Article XII of the Act that should the
duties, powers and function5 of the Joint Legislative Advisory Committee
become inactive or unenforceable, then and in that event, "such duties
as are herein imposed on said Joint Legislative Advisory Committee shall
be performed by the State Board of Education the same as if said Commit-
tee had not been created or authorized."

          It follows, therefore, from what has been said above, that
the duties, powers, and functions of the Joint Legislative Advisory Com-
mittee, save and except the duty imposed upon it to study the school
laws of this State in order that said laws may be recodified, devolve
upon and are to be executed by the State Board of Education the same
as if the Joint Legislative Advisory Committee had not been created or
authorized by the Act.

            We trust that the foregoing sufficiently answers your inquiry.

                                                  Your5 very truly

APPROVED JDR 12, 1942                        ATTORNEY GENERAL OFTEXAS

Id   Gerald C. Mauri
                                             By   /s/ R. W. Fairchild
ATTORNEY GENERAL OF TEXAS                             R. W. Fairchild
                                                            Assistant

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                                      APPROVED
                                      OPINION
                                     COMMPPIEE
                                     BY /s/ BWB
                                       CHAIRMAN
