                    HE       AYTORNEY                    GENEWAL
                                  0F          TEXAS




The Honorable Bill Meier,  Chairman                      Opinion No.     H-    121
Subcommittee  on Convention Organization
Texas State Senate                                       Re:    Questions  relating to
Austin, Texas                                                   the general authority
                                                                of the Constitutional
Dear Senator        Meier:                                      Convention

     You have requested an opinion of this office on several questions
relative to the powers of the Constitutional  Convention called by Article
17, $ 2 of the Texas Constitution and to the procedures  which should be
followed by the Convention.

     The Texas Constitutional     ‘Convention was called by the people through
the adoption of Article 17, $ 2, as an amendment to the existing Constitution
of 1876.   It was not called by an act of the Legislature    and, therefore,     legal
precedents    construing the powers and procedures      of constitutional   conventions
called by legislatures    with attempts by the Legislature    to limit the power
of the convention are not in point.     Nor did our convention result from the
institution of a new government      and precedents  construing the powers of
so-called   revolutionary   conventions are not in point either.     During the
deliberations   of the Convention and until whatever it produces is ratified
by the poeple of the State, the Constitution of 1876, as amended,         and the
statutes enacted pursuant to it will remain the law of the land.        For a gen-
eral discussion    of the procedures   and powers of a constitutional     convention,
see Gaines v. O’Connell,      204 S. W. 2d 425 (Ky. App.,   1947); Note, 54 Va. Law. Rev.
995 (1968); Note, 55 Iowa L,aw Rev. 244 (1969).

    Therefore,   it is .our opinion that the Constitutional   Convention has only
those powers which are expressly       granted to it by Article 17, $ 2, and must
operate in the framework     which that provision prescribes.

    Specifically,      Article   17,   $ 2,   of the present   Constitution,    your basic   guide,
provides:

       1.     The Convention           shall be convened at noon on the
              second Tuesday           in January, 1974.


                                              p.   584
The Honorable   Bill Meier,    page 2     (H-121)




      2.    The Convention shall be composed               of the members
            of the 63rd Legislature.

      3.    The Lidutenant Governor shall preside              over the
            Convention until a chairman is elected.

      4.    The Convention shall (or may) elect other officers;
            adopt rules; and publish a journal.

      5.    Members    of the Convention        shall be compensated
            and receive expenses.

      6.    The Convention     may employ       a staff.

      7.    The Convention is automatically    dissolved at 11:59 p, m.
            on May 31, 1974 except (a) it may dissolve   earlier by
            vote of at least two-thirds of its members   or (b) it may,
            by the same vote, extend its duration for not more than
            60 days.

    The only requirement      concerning the text of any proposed constitution
appears in $2(g) that The     Bill of Rights of the preseti Constitution must
be retained in full. As to    the method of submitting the end product of the
Convention to the people,     $ 2(e) provides:

            “(e) The convention,     by resolution   adopted on
       the vote of at least two-thirds     of its members,     may
       submit for a vote of the qualified electors       of this
       state a new constitution which may contain alternative
       articles  or sections,    or may submit revisions      of the
       existing constitution which may contain alternative
       articles  or sections.     Each resolution   shall specify
       the date of the election,    the form of the ballots,
       and the method of publicizing the proposals         to be
       voted on.    To be adopted, each proposal must receive
       the favorable    vote of the majority of those voting on
       the proposal.     The conduct of the election,     the can-
       vassing of the votes,     and the reporting of the returns
       shall be as provided for elections under Section 1 of
       this article. ‘I




                                     p.   585
 The Honorable      Bill Meier,       pa~ge 3   (H-121)




     Your first     question    is:

             “Are the members     of the Constitutional     Convention
        scheduled to convene at noon on the second Tuesday in
        January,   1974 limited in making choices pertaining to
        Convention structure,    Convention officers (type and num-
        ber, method of selection,     and duties and responsibility),
        Convention committees      (number,   jurisdiction,    rules),
        and/or ~Convention schedule,     by any controlling     precedent
        other than the resolution    granting authority for the holding
        of the Convention adopted by popular vote on November           7,
        1972, currently appearing as Article 17, Section 2, of the
        Texas Constitution,    or the applicable provisions      of the
        Constitution of the United States of America?        ”

     As to the first three areas you mention,    “Convention   structure”,    “Con-
vention officers”   and “Convention  committees”,     the Convention will be limited
in only a few respects.    Members   of the Convention must be members         of the
63rd Legislature.     There must be a “chairman”.       The Lieutenant Governor
must preside until the chairman is elected.       Other than these, it is our
opinion that the Convention may organize itself as it chooses.         It may deter-
mine for itself what other officers and what committees       it will have and may
assign to them such responsibilities    as it deems advisable.      It may prescribe
its own rules including those ,for the operation of its committees.

     The “Convention   schedule”,  on the other hand, appears somewhat more
restricted  by Subsections  (d) and (f) requiring the Convention to convene at
noon on the second Tuesday in January,      1974, and to be automatically   dis-
solved at 11:59 p. m. on May 31, 1974, unless “extended for a period not
to exceed 60 days by resolution.     . , . I’ Within that framework,    the Con-
vention is free to schedule its sessions   and set its own deadlines.

    Your   second    question     is as follows:

                “Specifically as to Convention officers - - is the
           Convention limited in choosing a Chairman of the Con-
           vention from its membership,      or may the Convention
           choose to elect a person as Chairman who is not a
           member of the Convention?”




                                           p.   586
The Honorable     Bill Meier,   page 4     (H-121)




     Article 17, $ 2(c), provides that “The members      of the 63rd Legislature
shall be convened as a constitutional   convention . . . . A person elected to
fill a vacancy in the 63rd Legislature   before dissolution    of the convention
becomes     a member of the convention on taking office as a member of the
Legislature.   ”

     It is quite clear from this language that only members      of the Legis-
lature can be members       of, or delegates to, the Convention.    That .fact
alone should rule out the election as chairman of a person other than a legis-
lator.     Unless the basic ordinance constituting the body prescribes     other-
wise,    it is the usual and accepted custom and practice in our society in the
selection of the permanent presiding officers of, organized groups to require
by common consent and understanding,         that the person selected be a member
of the organization.     It should be presumed that the Legislature,    in drafting
Article 17, $ 2, and the people in adopting it, intended, in the absence of
express provision to the contrary,      that this usual and accepted practice
prevail in the election of a permanent chairman of the convention.

     The amendment provisions        themselves,   when carefully analyzed,        lead
to the same inescapable      conclusion that the people did not intend to authorize
election of a non-legislator    as chairman.      The amendment authorizes           the
Convention to “elect other officers       it deems necessary”      without expressly
providing that they be members        of the Legislature.     It is unreasonable      to
suppose that while carefully and strictly limiting m’embership              in the Con-
vention to legislators,    the people,   nevertheless,    intended to authorize the
placing of control of the Convention ‘in non-legislator           officers.

     Paragraph     (d) of the amendment provides that “Members            of the con-
vention shall receive compensation,          mileage,   per diem” and that the Con-
vention may “appropriate        money from the general revenue fund of the
state treasury”     to’provide   for the expenses of its members        and the employ-
ment of a staff.”      Since non-legislators     could not be “members        of the
convention”,     and the chairmen and other officers would not be members              of
a “staff”,   in the generally    accepted meaning of that term, there is no
authority in the amendment for compensating            non-legislator    officers and
no authority in the Convention to appropriate         money to defray their expenses.
It would be unreasonable       to assume,    that, in adopting the amendment,        the
people intended that all members         of the Convention and its staff should receive
adequate compensation        and that expenses of members         should be reimbursed,




                                      p.   587
The Honorable     Bill Meier,   page 5        (H-121)




but that officers of the Convention, who must bear some of the heaviest
burdens in this important work, would be ineligible to receive either
compensation     or reimbursement.

   We therefore answer your second question that, in our opinion, the
Convention is limited to choosing its Chairman from among its members.

    Your third question     is prefaced:

               “Article 17, Section 2, subsection [d] of the Texas
          Constitution provides that the members     of the Constitutional
          Convention shall receive compensation     as determined by a
          five-member    committee    to be composed of the Governor,
          Lieutenant Governor,     Speaker of the House, Chief Justice
          of the Supreme Court, and Chief Justice of the Court of
          Criminal Appeals. ”

    You    ask:

                “May a member of this five-member     committee
          likewise serve as Convention Chairman without con-
          flicting in duties specifically required by this Reso-
          lution? ”

     We see no prohibited conflict.    The potential conflict of interest is no
greater in the situation posed by your question that it is in the situation
created by.other language in Article 17, $ 2(d), which specifies      that the
Convention may provide for the reimbursement         of expenses of its members
and may appropriate    money for that purpose.      In either event, it is the
Constitution itself that imposes the double responsibilities,     and we cannot
state that to exercise  the rights of both positions would present an uncon-
stitutional conflict.

     We therefore answer your third           question that, in our opinion, a
member of the five-man   committee            designated to determine the compen-
sation of Convention members,   who           also is a member of the Convention,
may serve as Convention Chairman              without an unconstitutional  conflict in
duties.




                                         p.    588
The Honorable   Bill Meier.    page 6     (H-121)




                              SUMMARY

            1. The Constitutional   Convention initiated by
       Article 17, § 2, of the Texas Constitution will be
       free, within the framework     of that provision and
       consistent with the Constitutions    of Texas and the
       United States, to structure itself,    to determine and
       select its officers and committees,      to determine the
       duties, authority and powers of its selected officers
       and committees,     and to schedule its work as it sees
       fit.

           2. The Chairman       of the Convention       must be chosen
       from the membership       of the Convention.

            3. A member of the five-man    committee    charged
       with determining  the compensation,   mileage allowance
       and per diem to be received by members      of the Con-
       vention who also is a member of the Convention is eligible
       to serve as Convention Chairman.




                                                    Attorney   General   of Texas




DAVID M. KENDALL,       Chairman
Opinion Committee




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