Major General Thomas S. Bishop       Opinion No. M-329
The Adjutant General
Camp Mabry                           Re:   Constitutionality of Art-
Austin, Texas                              icles 8.01, 8.03,~8.05~and
                                           8.07; Vernon's Code of Crim-
                                           inal Procedure, and Section
                                           2 of Article 5783, Vernon's
                                           Civil Statutes, as they may
                                           conflict with Article IV,
                                           Section 7, Constitution of
                                           Texas.
Dear General Bishop:
      you have requested an opinion on the above styled
matter, which reads, in part, as follows:
      "It is requested that an opinion be issued from
      your office relative to the constitutionality of
      Articles 8.01, 8.03, 8.05 and 8.07 of the Code of
      Criminal'Procedure of the State of Texas and
      Section 2 of Article 5783,'Texas Revised Civil
      Statutes as they may conflict with Article 4,
      Section 7 of the Texas Constitution.
     This Department is seriously concerned relative
     to such Statutes as they apparently de,legate
     authority to various public officials through-
     out the State to mobilize units of the militia
     of the State without prior approval of the
     Governor.
     This apparent delegated authority, as exercised,
     would seriously jeopardize orderly military proce-
     dure, chain of command, payment of claims, pension
     rights and many other details which require well
     defined chain of command."
      Article IV, of the Constitution of Texas creates for
Texas, like every other state, a separate executive department

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        Major General Thomas S. Bishop, Page 2,   (M-329)




        in recognition of the well-settled doctrine of separation of
        powers. The governor is made the chief executive officer in
        the execution and enforcement of our laws. Section 7 of Article
        IV uses mandator language with respect to making the governor
        commanded n-c ief of the state's military forces:
              "He shall be Commander-in-Chief of the Military
              forces of the State, except when they are called
              into actual service of the United States. He
              shall have power to call forth the militia to
              execute the laws of the State, to suppress in-
              surrections, repel invasions, and protect the
              frontier from hostile incursions by Indians
              or other predatory bands." (Emphasis supplied).
              This similiar common law power has come down to the
        executive in America, and is in accord and'not conflicting
        with the United States Constitutional provision. It is a
        common provision in other state constitutions and all of the
        constitutions of Texas have contained such a provision granting
        to the governor in the executive department of the state the
        power to call out the militia of the state, of which the
        Texas National Guard is a part.
              The militia-is subject to the orders of the governor;
        as commander-in-chief, except in the sole instance when it is
        called into the service of the United States. Its officers
        are appointed and commissioned by the governor.
                 93 Cr.R. 68, 246 S.W. 91 (1922). In time-e,
        wr    he  governor has the power to prescribe the regulations
        for the militia. Manley v. State, 62 Cr.R. 392, 137 S.W. 1137
        (19111.~
              The "Interpretive Commentary" concerning Article IV,
        Section 7, Constitution of Texas, in Vernon's Texas Constitution,
        at page 789, states the following:
                "The governor is vested with discretionary
             powers in determining whether an emergency re-
             quiring military aid in the execution of the
             laws has arisen, and his decision upon the sub-
             ject is conclusive. However, his judgment as
             to measures to be taken to suppress the violence



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Major General Thomas S. Bishop, Page 3, (M-329)


      and restore order are not above judicial review.
      Sterting v. Constantin, supra." '57 F.2d 227
      (193~21 appeal dism. 53 S.Ct. 190, 287 U.S. 378.
      (EmphaLis supplied).
      No such power whatever to order or call forth the
militia is granted by the Constitution of ~Texas under Article
V, which creates a separate and distinct Judicial Department
and states in what department the judicial power shall be
vested by declaring that it shall be vested in the courts
named. This is the power to adjudicate upon and protect the
rights and interests of individual citizens, construing and
applying the laws to that end. It is the power of the courts
to decide and pronounce judgments and to carry them into effect
between persons and Parties who brina cause before them for
decisions. Morrow v: Corbin, 122 Tex. 553, 62 S.W.Zd 641
(1933).
      Nor is any power to delegate to other state officers the
authority to call forth and command the state militia mentioned
under Article III governing the separate and distinct Legisla-
tive Department of our state. While the power or authority of
the legislature is general'to enact laws and it is full and
complete and subject to no restrictions except those provided
by the Constitution of the state, it is without power to usurp
those powers expressly granted to the executive or judicial
departments. Legislation is not permissible where the parti-
cular matter is expressly or impliedly withheld'by the Con-
stitution. 12 Tex.Jur.Zd 397, Const.Law., Sec. 52. As stated
in 12 Tex.Jur.26 403; Cbixtittitihal Law, Section 57,
     "The constitution of Texas is the permanent law of
     the state operating as a limitation on the powers
     of government and a restraint on the exercise of the
     legislative prerogative. Whenever the provisions
     of the constitution are violated, and officers,
     either ministerial, executive, or legislative,
     attempt action violative of its provisions, the
     courts, anchored close to the Constitution, have
     never hesitated to call them back within its limits."
      Article II of the Constitution of Texas specifically pro-
vides that ". . . no person, or collection of persons, being of



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one of these departments, shall exercise any power properly
attached to either of the others, except in the instances
herein expressly permitted."
      With these principles before us, we may examine the
constitutionality of that portion of those statutes in question
which, in effect, purport to grant power to other officials
to call forth and order the state militia into state service.
     Article 8.01, Vernon Code of Criminal Procedure
        "When any officer authorized to execute process
     is resisted, or when he has sufficient reason to
     believe that he will meet with resistance in execut-
     ing the same, he may command as many of the citizens
     of his county as he may think proper; and the sheriff
     may call any military company in the county to aid
     him in overcoming the resistance, and if necessary,
     in seizing and arresting the person engaged in such
     resistance."
     Article 8.03, Vernon's Code of Criminal Procedure
           "Whenever, for the.purpose of suppressing riots
     or unlawful assemblies,,the aid of military or
     militia    companies is called, they shall obey the
     orders of the civil officer who is engaged in sup-
     pressing the same."
     Article 8.05, Vernon's Code of Criminal Procedure
        "In order to enable the officer to disperse a
     riot, he may call to his aid the power of the
     county in the same manner as is provided where
     it is necessary for the execution of process."
     Article 8.07, Vernon's Code of Criminal Procedure
        "The Articles~of this Chapter relating to the
     suppression of riots apply equally to an unlawful
     assembly and other unlawful disturbances, as defined
     by the Penal Code."




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         Article 5783; Section 2, Vernon's Civil Statutes
            "When there is in any county, city or town in
         this state tumult, riot or body of men acting to-
         gether by force with intent to commit felony, or
         br-eachof the peace, or to,-do,violenceto person
         or property, or by force to break or resist the
         laws of this state, or when such tumult, riot,
         mob or other unlawful act'or violence is threatened
         and that fact is made to appear to the Governor, he
         may issue his order to any commander of a unit of
         the State Military Forces of this state to appear
         at the time and place directed, to aid'the civil
         authorities to suppress or prevent such'violence
         and in executing the laws, provided,'whenever the
         necessity for military aid'in preventing or suppress-
         ing such violence is immediate and urgent, and when
         it is impracticable to furnish such information to
         the Governor in time to secure military aid'by his
         order, the district judge of'the judicial district
         in which the disturbance occurs, or the sheriff of
         such county, or the mayor of such city or town may
         call in writing for aid upon the commanding officer
         of the'State Military Forces stationed therein, or
         adjacent thereto; and the civil officer making the
         call shall at once notify the Governor of'his action."
      Of like tenor to the provisions of the Vernon's Code
of Criminal Procedure mentioned in your request is Article
43.26:

         "The sheriff may, when he supposes there will be
         a necessity, order such number of citizens of his
         county, or request any military or militia company,
         to aid in preventing the rescue of a prisoner."
      It is apparent that the above statutes do conflict
with the Constitution of Texas, particularly Article IV,
Section 7, thereof, wherein they vest authority in persons
other than the Governor to call out, or issue orders to,
the state militia.
      It is well settled that constitutional provisions in
this state are mandatory and when a power is expressly granted


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        Major General Thomas S. Bishop, Page 6, (M-329)


        by the constitution, which prescribes the means by which or
        the manner in which that power is to be exercised, the same
        is deemed~exclusive of any or all~others. Houchins v. Plainos,
        130 Tex. 413, 110 S.W.2d 549~(1937); 12 Tex.Jur.Zd 361, Constitu-
        tional Law, Section 13;~P. 406, Sec. 61, and many cited cases
        at footnote 12. The basis of such a construction finds its
        roots in our constitutional system of separation of powers,
        designed to prevent usurpations and encroachments between de-
        partments of government and the various jurisdictional sub-
        divisions thereof.
              As stated in 12 Tex.Jur.2d 401, Constitutional Law,
        Section,55,
             "The powers properly belonging to one branch of
             government may not be exerted by another. And it
             is presumed that the constitution, in selecting
             the depositary of a given power, unless it be
             otherwise expressed, intended that the depositary
             should exercise an exclusive power. . .'I In accord,
             State v. Moore, 57 Tex. 307' (1882);
              It is further a recognized rule of constitutional in-
        terpretation that, “Every positive declaration found in the
        constitution contains by implication a prohibition both
        against anything contrary thereto and against everything that
        could effect a frustration of its objectives and purposes. . .'I
        12 Tex.Jur.Zd 404, Constitutional Law, Sec. 58.
              It is the opinion of this office that insofar as the
        above quoted statutes confer the power upon persons other
        than the Governor, including persons serving in other de-
        partments of state government, or in county or municipal
        government, to call forth the militia of the state, a part
        of the Executive Department of the State under the command
        and control of the governor, who is vested with this ex-
        clusive power and discretion, such statutes must,be held
        to be unconstitutional.
              In Neff v. Elgin, 270 S.W. 873, 875 (Tex.Civ.App. 1925,
        error ref.) IS found a pertinent statement applicable to this
        question, wherein the Court said:




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            Major General Thomas S. Bishop, Page 7, (M-329)


                     II
                          .Our government, national and state, has
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                  been divided into three coordinate branches, one
                  of equal dignity and'responsibility with the others,
                  and each supreme within the exercise of’its proper
                  functions, and cannot while so acting, directly or
                  indirectly, be controlled, meet with interference,
                  or be under the supervision or dictation of any
                  other branch. Such assumption of supervision of
                  one branch of the government would be subversive
                  of the system and lead to inextricable confusion. . ."
            In accord, see 12 Tex.Jur.Zd, 395; Constitutional Law, Section
            50, stating that, "Due regard for the powers and jurisdictions of
            the governmental departments by each other is essential to
            the solution of governmental and public problems and the
            effective carrying out of their respective functions."
                  However, when members of the state militia or national
            guard are not on active duty or in the performance of their
            duties pursuant to orders of the Governor or higher authority,
            they are subject to being called by a mayor or sheriff or other
            peace officer as members of a posse comitatus.
                                    SUMMARY
                     Articles 8.01, 8.03, 8.05, 8.07 and 43.26 of
                  the Code'of Criminal Procedure, and Section 2 of
                  Article 5783; Vernon's Civil Statutes, insofar as
                  they grant authority to a sheriff of a county, or
                  a mayor of a city, or a district judge of a judicial
                  district, to call out and issue orders to the state
                  militia or state military forces, including the
                  Texas National Guard, without prior approval of the
                  Governor of Texas, the Chief Executive of the State,
                  are unconstitutional.
                                               truly yours,


                                              rney General of Texas

            Prepared~by Brandon BickettY
            Assistant Attorney General


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        Major General Thomas S. Bishop, Page 8, (M-329)


        APPROVBP:
        OPINION COMMITTEE
        Kerns Taylor, Chairman
        Alfred Walker
        Jim Swearinger
        John Banks
        Roger Tyler

        EXECUTIVE ASSISTANT
        Hawthorne Phillips




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