         THE    AYTORNEYGENERAL
                        OF’ TEXAS




Honorable Price Daniel        Opinion No. WW-729
Governor, State of Texas
Capitol Station               Re:   Constitutionality of S.B.
Austin, Texas                       17, 56th Leg., creating
                                    the Texas Coordinating
                                    Commission of State Health
Dear Governor Daniel:               & Welfare Services.
        Your request for an opinion reads as follows:
            "Attached herewith is a copy of Senate
       Bill 17, creating the Texas Coordinating
       Commission for State Health and Welfare
       Services, which I permitted to become law
       without my signature.
            "I would appreciate your official
       opinion regarding the constitutionality of
       this law, with particular reference to
       whether it would violate Article 2, Section
       1, relating to the division of powers be-
       tween the Executive and Legislative depart-
       ments of the State government."
        Senate Bill 17, Acts of the 56th Legislature, Regular
Session, 1959, Chapter 352, Page 773 (codified In Vernon's
as Article 4447c, Vernon's Civil Statutes), creates the;Texas
Coordinating Commission for State Health and Welfare Services
to be composed of the following persons:
             "(a) The Commissioner of Health, the
        Commissioner of Education, the Executive
        Mrector of the Board for Texas State Hos-
        pitals and Special Schools, the Chairman
        of the Texas Employment Commission, the
        Commissioner of Public Welfare, the Execu-
        tive Secretary-Director of the State Commis-
        sion for the Blind, and the Executive Di-
        rector of the Texas Youth Council;
Honorable Price Daniel, Page 2 (w-729)


             "(b) Three members of the Senate ap-
        pointed by the Lieutenant Governor;
             "(c) Three members of the House of
        Representatives appointed by the Speaker
        of the House;
              "(d) Three citizen members appointed
        by the Governor and chosen for their recog-
        nized interest in welfare activities  of the
        state, local governments, and private agen-
        ties.
             "The terms of members of    the Commission
        first appointed shall be from    the date of
        their appointment to December    31, 1960, and
        appointments thereafter~shall    be for two-year
        period; ending on December 31    of even-numbered
        years.
        Section 5 provides that members of the Commission
shall serve without compensation but members of the Commis-
sion who are members of the Legislature shall be reimbursed
for their actual and necessary expenses from the Texas Legls-
lative Council funds.
        It is noted that the Legislature has created a State
agency composed of a collection of persons being of ~the Execu-
tive.Department'of Government and a colledtSonWof persons be-
ing of the
         . Legislative Department of Government.
       ~Section lof Article II of the Constitution of Texas
provides as follows:
             "The powers of the Government of the State
        of Texas shall be divided into 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 Judi-
        cial to another, and no sperson br collection.
        of persons, being of one of these departments,
        shall exercise any power properly attached to
         lther of the others, except in the instances
        Herein expressly permitted." (Bnphasis ours).
Honorable Price Daniel, page 3 (W'w-729)


        It is noted that Section 1 of Article II above quoted
specifically prohibits any person or collection of persons be-
ing of one such department from exercising any power properly
attached to either of the others.
        In Cooley's Constitutional Limitations, 8th Ed.,
p. 183, it is stated:
            "The legislative power we understand to
       be the authority, under the Constitution, to
       make laws, and to alter and repeal them. Laws
       in the sense in which the word Is here employed,
       are rules of civil conduct, or statutes, which
       the legislative will has prescribed. 'The laws
       of a State,' observes Mr. Justice Story, 'are
       more usually understood to mean the rules and
       enactments promulgated by the legislative author-
       ity thereof, or long-established local customs
       having the force of laws.' 'The difference be-
       tween'the departments undoubtedly is, that the
       legislature makes, the executive executes, and
       the judiciary construes, the law.'" (Citing
       Waymand v. Southard, 10 Wheat. 46 6 L.Bd. 253,
       263, 1=‘51.
        The senators and representatives appointed to the
Commission serve In their official capacities as members of
the Legislature. In view of the provisions of Section 1 of
Article II, the senators and representatives are thus prohi-
bited from exercising any powers properly attached to the
Executive Department of Government. The Commissioner of
Health, the Commissioner of Education, the Chairman of the
Texas Dnployment Commission and the Commissioner of Public
Welfare, being members of the Executive Department of Govern-
ment, are likewise prohibited from exercising any power proper-
ly attached to the Legislative Branch of Government.
        The duties of the Commission are set forth in Section
6 as follows:
             "(1) To make a continuing study and ana-
        lysis of the state's health~and welfare services
        generally and specifically, both as to cost and
        adequacy;
             "(2) To study diagnostic services, care,
        training, educational and rehabilitation pro-
        grams for the handicapped;
Honorable Price Daniel, Page 4 (Ww-729)


            "(3) To recommend long-range programs to
       be carried out by the several state departments,
       institutions, and agencies having health and
       welfare functions.
            "(4) To inspect and make recommendations
       specifically concerning state institutions and
       facilities for the mentally and physically handl-
       capped;
             "(5) To recommend the elimination of dupli-
        cation of services between agencies or recommend
        the institution of additional services;
            "(6) To study and determine the need for
       changes in the laws as they apply to the care,
       education, training and rehabilitation of the
       handicapped;
            "(7) To determine the need for changes in
       administrative procedure and to recommend such
       changes to the agencies and departments con-
       cerned;
            "(8) To examine from year to year, the ade-
       quacy, coverage and administration of old age
       assistance and assistance programs for the blind,
       the permanently and totally disabled, and dependent
       children; and
             "(9) To make recommendations to the Leglsla-
        ture concerning the matters covered in Items (1)
        through (8) for its consideration."
        It is noted that the Commission constitutes something
more than a Committee of Legislators to study proposed legis-
lation for the Legislature; cf. Terre11 v. King, 118 Tex. 237,
14 S.W.2d 786 (1929) and M.K. & T. Railway Co. v. Shannon,
100 Tex. 379, 100 S.W. 138 (1907). Insofar as the Commission
is required to study proposed legislation and to make recom-
mendations to the Legislature, such Commission would be acting
as a fact finding committee for the Legislature and would be
performing powers properly attached to the Legislative Depart-
ment. Insofar as the Commission is required to study and ana-
lyze services rendered by other agencies of the State and to
make recommendations as to such services to thevarious depart
metitsof Government, such Commission would be performing power
properly attached to the Executive Department of Government.
                                                   364.5
Honorable Price Daniel, page 5 NW-729).


Thus, the provisions of Senate Bill 17 require a collection
of persons being of one Department of Government to exercise
powers properly attached to another Department of Government.
        Subdivisions (a),  (b) and (c) of Section 1 of Senate
Bill 17 are in violation of Section 1 of Article II of the
Constitution of Texas. Such Invalidity destroys the agency
created by Senate Bill 17 and.the remalning provisions of
the Act are incapable of,~being carried out. You are, there-
fore, advised that Senate Bill 17, Acts of the 56th kgisla-
ture, Regular Session, 1959, Chapter 352, page 773, violates
the provisions of Section 1 of Article II of the Texas Consti-
tution and is unconstitutional.
                         SUMMARY
            Senate Bill 17, Acts of the 56th
            Legislature, Regular Session, 1959,
            Chapter 352, page 773 (codified as
            Article 4447c, Vernon's Civil Stat-
            utes), creating the Texas Coordinat;
            ing Commission for State Health and
            Welfare Services, to be composed of
            officers of the Executive Branch of
            Government and officers of the Legis-
            lative Branch of Government, violates
            the provisions of Section 1 of Arti-
            cle II of the Constitution of Texas,
            prohibiting any person or collection
            of persons being of one department of
            government;~.fromexercising any power
            properly attached to either of the others.
                              Yours very truly,
                             WILL WILSON
                             Attorney General of Texas


JR:mfh                             John Reeves
Honorable Price Daniel, page   6   (WW-729)


APPROVED:
OPINION COMMIlTEE
Morgan Nesbltt, Chairman
Grundy Williams
William R. Hemphlll
Riley Eugene Fletcher
REVIEWEDFORTHE  ATTORNEYGENERAL
BY: W. V. Geppert
