                                                 ,~,
                                                 ~
                               ATTORNEY GENERAL OF TEXAS
                                           GREG       ABBOTT


                                                 May 12,2014



Mr. PaulL. Foster                                        Opinion No. GA-l 057
Chair
U.T. System Board of Regents                             Re: Authority of a committee of the Legislature
201 West Seventh Street, Suite 820                       that is investigating a contemplated impeachment
Austin, Texas 78701-2981                                 to punish for contempt (RQ-1163-GA)

Dear Mr. Foster:

        You ask several related questions about the contempt powers of a committee of the
Legislature investigating a contemplated impeachment. 1         Your questions implicate the
separation-of-powers, legislative contempt, and impeachment provisions of the Texas
Constitution, which we briefly review for context. We first consider article II, section 1 of the
Texas Constitution, which provides for the separation of powers of state government:

                 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 Judicial to another; and no person, or collection of
                 persons, being of one of these departments, shall exercise any
                 power properly attached to either of the others, except in the
                 instances herein expressly permitted.

TEX. CaNST. art. II, § 1. In the 1911 case of Ex parte Wolters, the Court of Criminal Appeals
determined that the Legislature does not have inherent contempt powers because contempt is a
judicial power. 144 S.W. 531, 585 (Tex. Crim. App. 1911) (orig. proceeding). The court held
that "[i]n exercising judicial powers [such as contempt], the legislative department must look to
the Constitution for permission so to do, and, if it is not found therein, it is prohibited from
exercising that power." !d. A more commonly accepted view is that a legislature's authority to
enforce subpoenas and maintain order using contempt powers is an inherent power of a
sovereign legislative body rather than a power "properly attached" exclusively to the judicial
branch. See, e.g., Groppi v. Leslie, 404 U.S. 496, 500 (1972) ("Legislatures . .. possess inherent

        1
          See Letter and Brief from Mr. Paul L. Foster, Chair, U.T. Sys. Bd. of Regents, to Honorable Greg Abbott,
Tex. Att'y Gen. at 1-2 (Nov. 11 , 2013), http://www.texasattomeygeneral.gov/opin ("Request Letter" & "Brief')
(Brief on file with the Op. Comm.).
Mr. PaulL. Foster - Page 2                    (GA-1057)


power to protect their own processes and existence by way of contempt proceedings."); State ex
rel. Beck v. Frontier Airlines, Inc., 116 N.W.2d 281, 285 (Neb. 1962) (stating that contempt
powers are "inherent in the very organization of alJ legislative bodies') (quoting State v.
Matthews, 37 N.H. 450 (1859)). Under this view, legislative contempt rai es no separation-of-
powers concerns. Nevertheless, in light of Ex parte Wolters the Texas Legislature's authority to
hold persons in contempt arguably must be based on an express constitutional provision. See
TEX. CONST. art. II, § 1.

         One such express constitutional provision authorizing legislative contempt powers is
article III, section 15 ofthe Texas Constitution:

               Each House may punish, by imprisonment, during its sessions, any
               person not a member, for disrespectful or disorderly conduct in its
               presence, or for obstructing any of its proceedings; provided, such
               imprisonment shall not, at any one time, exceed forty-eight hours.

TEX. CONST. art. III,§ 15. The Court of Criminal Appeals has determined that article III, section
15 is both a grant of contempt authority to the Legislature and a limitation on that authority. See
Ex Parte Youngblood, 251 S.W. 509, 511-12 (Tex. Crim. App. 1923). The court in Youngblood
observed that a person's actions "done in disobedience of a committee which impede[] or
obstruct[] the proper discharge of the functions of the committee may constitute obstruction
under article III, section 15. !d. at 512. But, because article ITI ~ection 15 gives the _power t
punish to each House of the Legislature only as a body the power to impose punishment for
contempt "could not be exerted by a committee." !d.

        Article XV of the Texas Constitution vests in the House of Representatives and the
Senate the power to impeach and remove ofti cers. See Walker v. Baker 196 S.W.2d 324 329-
30 (Tex. 1946). Article XV give each legislative body «separate plenary power and jurisdiction
in relation to matters of impeachment : he .House the power to 'impeach ' that is, to prefer
charges; the Senate the power to 'try' those charges.' Ferguson v. M addox, 263 S.W. 888 890
(Tex. 1924).

       Instead of expressly detailing impeachment powers, article XV, section 7 authorizes the
Legislature to "provide by law for the trial and removal from office of all officers of this State,
the modes for which have not been provided in this Constitution." TEX. CONST. art. XV, § 7.
The Legislature has provided laws for the impeachment of state officials in chapter 665 of the
Government Code, including "a member, regent, trustee, or commissioner having control or
management of a state institution or enterprise. ' TEX. Gov T CODe A NN. § 665.002(3) (West
2012); see generally id. §§ 665.001--.08 I. Under hapter 665, an ' impeachment proceeding' is
defined to include "investigating a matter relating to a contemplated impeachment.              !d.
§ 665.001(2). Section 665.005 sets forth the powers of the House of Repre entatives and its
committees during an impeachment proceeding:

               When conducting an impeachment proceeding, the house or a
               house committee may:

                       (1) send for persons or papers;
Mr. PaulL. Foster - Page 3                    (GA-1057)



                       (2) compel the giving of testimony; and

                       (3) punish for contempt to the same extent as a district
                       court of this state.

!d. § 665.005 (emphasis added). Thus, pursuant to article XV, section 7, the Legislature has
enacted a statute that permits a committee of the House of Representatives to punish for
contempt in the course of impeachment proceedings.

         Having provided this background, we tum to your questions. In your first two questions
you ask if a committee investigating a contemplated impeachment may "hold or punish a person
for contempt under Section 665.005" of the Government Code '"to the same extent as a district
court" without violating Article II, Section 1 or Article III, Section 15 ofthe Texas Constitution."
Request Letter at 1. You argue that article III, section 15 is the sole source of contempt authority
possessed by either legislative body and that this provision does not vest contempt powers in
legislative committees; consequently, you argue, to the extent that section 665.005 of the
Government Code gives the judicial power of contempt to a legislative committee, it violates the
separation of powers provisions of article II, section 1. Brief at 3-7.

         In answering your questions, we will assume solely for the sake of argument that the
Legislature lacks inherent contempt authority and that any exercise of such authority by the
legislative branch not expressly authorized by the Texas Constitution would violate the
separation of powers. Article II, section 1 of the Texas Constitution states the general rule that
legislative, executive, and judicial powers must be exercised solely by their respective
departments of government. That general rule does not apply, however, when another provision
of the Constitution allows a department to exercise a power "properly attached" to a different
department. TEX. CONST. art. II, § 1. Article XV of the Texas Constitution grants the houses of
the Legislature authority to conduct impeachment proceedings. !d. art. XV, §§ 1-9. Further,
article XV, section 7 authorizes the Legislature to establish the law for certain impeachment
proceedings. !d. art. XV, § 7; TEX. Gov'T CODE ANN. § 665.002(3) (West 2012). Pursuant to its
constitutional powers found in article XV, section 7, the Legislature promulgated section
665.005 of the Government Code, which authorizes a committee in impeachment proceedings to
exercise the power of contempt. TEX. Gov'T CoDE ANN. § 665.005(3) (West 2012). While it is
a question of first impression, a court would likely conclude that article XV, section 7 of the
Texas Constitution and section 665.005 of the Government Code together amount to a
constitutional authorization for a committee of the House of Representatives to exercise
contempt powers. Because this constitutional authority exists apart from article II, section 1, it
may be. exercised without raising separation-of-powers concerns.

        We tum now to article III, section 15 of the Texas Constitution. The text of this
provision expressly authorizes the Legislature to punish interference with legislative
proceedings. While article III, section 15 does not expressly address committees, it also does not
deny a committee of the House of Representatives the ability to enforce its impeachment
authority under article XV, section 7 by contempt. The opinion in Ex parte Youngblood is not to
the contrary, even though the court determined that the power to punish for contempt is not
inherent in the Legislature. The court in Youngblood stated that courts '"must look alone to
Mr. PaulL. Foster - Page 4                   (GA-1057)


section 15 of article [III] to judge if permission is given the legislative department of the
government to exercise this judicial power in cases of this character."' Ex Parte Youngblood,
251 S.W. at 511 (quoting Ex parte Wolters, 144 S.W. at 585 (emphasis added)). The court
considered only the Legislature's contempt authority under article III, section 15 to punish
disrespect, disorderly conduct, and obstruction of legislative proceedings, not whether a
committee may utilize contempt powers in aid of its impeachment authority under article XV,
section 7.

         A court considering article III, section 15 and article XV, section 7 will attempt to
harmonize the constitutional provisions. See Oakley v. State, 830 S.W.2d 107, 110 (Tex. Crim.
App. 1992). "No part of the Constitution should be given a construction which is repugnant to
express authority contained in another part, if it is possible to harmonize the provisions by any
reasonable construction." !d. A court is not likely to conclude that the contempt authority
granted in article III, section 15, of the Texas Constitution impliedly restricts the power of the
Legislature to establish impeachment procedures under article XV, section 7, including the
power of contempt in aide of an impeachment investigation by a committee. A legislative
committee's authority under section 665.005 of the Government Code does not conflict with
article III, section 15. Each may be given full effect without frustrating the operation of the
other. See Lawson v. State, 283 S.W.3d 438, 440 (Tex. App.-Fort Worth 2009, pet refd)
(stating that a "statute must be upheld if a reasonable construction can be ascertained that will
render the statute constitutional and carry out the legislative intent"). Consequently, to answer
your first two questions, a court would likely conclude that a committee of the House of
Representatives acting pursuant to section 665.005 of the Government Code does not violate
article II, section 1 or article III, section 15 ofthe Texas Constitution.

         Your third question is whether "[s]ection 665.005 [of the Government Code] is the
exclusive source of a committee's power to hold and punish persons for contempt" when the
committee is investigating a contemplated impeachment, or whether "such a committee [may]
exercise powers and authority under Sections 301.026 and 301.027 of the Government Code."
Request Letter at 1.          Sections 301.026 and 301.027 are contained in the Legislative
Reorganization Act of 1961. TEX. Gov'T CoDE ANN.§§ 301.011-.034 (West 2013) (subchapter
B, the Legislative Reorganization Act of 1961) (the "Act"). The purpose of the Act is "to
authorize legislative committees and other legislative instrumentalities to work and meet their
responsibilities regardless of whether the legislature is in session." !d. § 301.012. The Act
authorizes the formation of general investigating committees, and "[i]f a person disobeys a
subpoena or other process that a general investigating committee lawfully issues, the committee
may cite the person for contempt and cause the person to be prosecuted for contempt according
to the procedure prescribed by this chapter or by other law." !d. § 301.020(c). A person who
fails to appear, testify, or produce papers as summoned may commit the offense of contempt. !d.
§§ 301.020(c), .024-.026. If the failure occurs while the Legislature is in session, the failure
may be reported to either house. !d. § 301.027(a). Ifthe Legislature is not in session, however,
the failure may be reported to the President of the Senate or Speaker of the House, who in turn
certifies the statement of facts to the Travis County District Attorney for presentment to a grand
jury. !d. § 301.027(a}-(c). Sections 301.026 and 301.027 do not contain an exception for an
investigation of a contemplated impeachment. Courts do not "engraft exceptions" on statutes by
implication when not warranted by existing text. Spears v. City of San Antonio, 223 S.W. 166,
 169 (Tex. 1920). Accordingly, a committee of the Legislature investigating a contemplated
Mr. PaulL. Foster - Page 5                             (GA-1057)


impeachment may exercise authority under sections 301.026 and 301.027 of the Government
Code to the extent it otherwise acts consistently with chapter 301, subchapter B of the
Government Code?

        We do not address your fourth question, which is contingent on a conclusion that section
665.005 is the exclusive source of contempt authority for a committee investigating a
contemplated impeachment. Your fifth question is whether, should a committee proceeding
under chapter 665 of the Government Code find an attorney in contempt and impose punishment,
the attorney would be entitled to be released on his own recognizance and afforded a hearing
pursuant to section 21.002(d) of the Texas Government Code. Request Letter at 2. Section
21.002( d) provides:

                  An officer of a court who is held in contempt by a trial court shall,
                  on proper motion filed in the offended court, be released on his
                  own personal recognizance pending a determination of his guilt or
                  innocence.

TEX. Gov'T CoDE ANN. § 21.002(d) (West 2004). No judicial opinion of which we are aware
has considered section 21.002(d)'s application to the contempt powers of a legislative body. By
its plain terms, section 21.002(d) limits the authority of a trial court to punish contempt by
confinement. !d. § 21.002(d). A court would likely construe section 665.005(c)'s grant of
authority to punish contempt "to the same extent as a district court" as ~arrying with it any
limitations on a district court's contempt authority. !d. § 665.005(c) (West 2012). Section
21.002(d) is one such limitation. Thus, a person who would be entitled to be released on his own
recognizance and afforded a hearing if held in contempt by a trial court should enjoy the same
protections if held in contempt by a legislative committee.

        Finally, we note that in addition to any statutory limitations, the United States and Texas
Constitutions limit contempt power whether exercised by the courts or by legislative bodies. See
Groppi, 404 U.S. at 499-502 (noting constitutional limitations on the exercise of contempt
authority by Congress and state legislative bodies; holding that a state's particular contempt
orders violated Due Process). As one judge has observed, a court's contempt power is subject to
constitutional "protection[ s] of the Due Process and Due Course of Law clauses, the Equal
Protection Clause and the Texas Equal Rights Amendment, the double jeopardy clauses, and the
constitutional prohibitions on excessive fines and cruel and unusual punishments." In re Dotson,
76 S.W.3d 393, 405 (Tex. Crim. App. 2002) (orig. proceeding) (Keller, J., dissenting) (footnotes
omitted); cf In re McCann, 2013 WL 6081455, *5 (Tex. Crim. App. 2013) (holding that a trial
court does not have the authority to hold an attorney in contempt for failing to tum over client's
files in violation of his fiduciary duty). Such constitutional protections apply equally to any
actions taken by the Legislature. In order to vindicate these protections, a court could validly

         2
          Because section 301.027 of the Government Code does not authorize a legislative committee to punish an
act of contempt, instead requiring the committee to refer the matter to the Legislature when it is in session or to a
judicial officer when the Legislature is not in session, the statute is consistent with the court's holdings in Ex Parte
 Youngblood,251 S.W.at512.
Mr. Paul L. Foster - Page 6                   (GA-1057)


subject a contempt order of a legislative body to judicial review of the order's legality. See, e.g.,
Ex Parte Youngblood, 251 S.W. at 511-12 (granting habeas corpus relief to relator held in
contempt by order of a legislative committee).
Mr. PaulL. Foster - Page 7                  (GA-1057)


                                     SUMMARY

                       A court would likely conclude that a committee of the
              House of Representatives acting in a judicial capacity pursuant to
              article XV, section 7 of the Texas Constitution and section 665.005
              of the Government Code does not violate article II, section 1 or
              article III, section 15 of the Texas Constitution. Such a committee
              may exercise authority under sections 301.026 and 301.027 of the
              Government Code to the extent doing so is otherwise consistent
              with chapter 301, subchapter B. A court would likely conclude
              that an attorney held in contempt under section 665.005 of the
              Government Code is entitled to the protections of section
              21.002(d) of the Government Code. Any contempt powers
              exercised by the Legislature are limited by constitutional
              protections contained in the United States and Texas Constitutions.




                                            Attorney General of Texas


DANIEL T. HODGE
First Assistant Attorney General

JAMES D. BLACKLOCK
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

William A. Hill
Assistant Attorney General, Opinion Committee
