                  TEEATTOKNEYGENERAI.
                           OF TEXAS
PRICE  DANIEL
ATTORNEYGENERAL    (
                             June 27, 1949

    Hon. Durwood Manford, Speaker
    The House of Representatives
    Austin, Texas
                             Opinion No. v-850
                             Re:   Amendment to Joint ResBlutions
                                   Proposing Constltutlonal Amend-
                                   ments.
    Dear MrIri
             Speaker:
             Your request for an opinion states the problem invol-
    ved :
            "The Legislature has heretofore passed and the
         Governor has signed several joint resolutFons pro-
         posing constitutional amendments to be submitted
         to the people. The date in each resolution provided
         for an election to be held on September 24, 1949.
            "It now appears that other amendments now pend-
         ing in the Legislature may be submitted to the
         people. If they are submitted, the elections
         thereon would have to be held some time after Sep-
         tember 24, 1949 because of the constitutional requlre-
         ment that each amendment be published three months
         before the election thereon.
            "To hold.two separate electLons would cause ad-
         ditlonal expense to the state. The Senate has
         passed S.C.R. 74, a copy of which Is attached,
         which provides that 'al.1proposals to amend the
         constitution . . . . heretofore submitted by the
         Regular Session of the 51st Legislature, shall be
         voted on . . . . on the second Tuesday in Novem-
         ber instead of the dates named In the proposals
         . . . . . .,
            "I would appreciate your advIce as to whether
         the end desired in S.C.R. 74 may constltutionallg
         be accompllshed by the method used. If it may not,'
         how may such be constLtutLonallg~done?"
Hon. Durwood Manford, page 2          (v-850)

       Art. XVII of the Texas Constitution is the only provi-
sion in that instrument concerning the method of amendment.
In part it reads:
       "Section 1. The LegLslature, at any biennial
    session, by a vote of two-thirds of all the mem-
    bers elected to each House, to be entered by
    yeas and nays on the journals, may propose amend-
    ments to the Constftution to be voted upon by the,
    qualified electors for members of the Legislature,
    which proposed amendments shall be duly publIshed
    once a week for four weeks, commencing at least
    three months before an election, the time of which
    shall be specified by the Legislature. . . . '
       By this Article the Legislature is given the power to
propose amendments to the Constitution and to specify the date
upon which the proposal shall be voted upon by the people.
The mandatory formal1tles with which the Legislature must com-
ply in the exercise of this broad power are that:

       (1)   two-thirds of all members elected
             must vote for the proposal, and

       (2)   the vote must be entered by yeas
             and nays on the journals.
       The Legislature is at llbertg to choose any method 1t
desires for proposing constitutional amendments so long as
none of the provisions of Article XVII are violated.1 The
House of Representatives has chosen the vehicle of the joint
resolution to accomplish the constitutional mandate.2 The
Senate rules do not speclffcallg provFde that constitutional
amendments must be proposed by joint resolution but has used
this method for its past proposals.3 In compliance with this
provision the 51st Legislature has passed several joint reso-
lutions proposing amendments to the Constitution and In each


1   Art. III, Sec. 11, Texas Constitution.
2   Texas LegFslative Manual.   Rule 17, Rules of the House.

3   Texas Legislative Manual.   Rule 45,   Rules   of   the
    Senate.
Hon. Durwood Manford, page 3         w-850) ~


of these September 24, 1949 has been specified as the date
for an election at which the people may vote on the proposals.
       The effect of what you state the Legislature desires
to accomplish Is to amend each joint resolution previously,
passed and sent to the Secretary of State, so as to provide
for an election on November 8, 1949 instead of the date
originally specified. Prior to ratification by the people,
a legislative resolution to amend the constitution amounts
to no more than the required legislative proposal and a di-
rective to the Secretary of State to publish the roposal and
that an election is to be held on a certain date.t Conse-
quently while the Legislature remains in session it has the
power to reconsider the action taken In passing the joint
resolution and amend its provious proposal.5 The effect of
the amendment is to substitute the proposal as amended for
that originally passed.
       Thus, In determining the procedure for amending a pre-
vious joint resolution proposing an amendment, just as in the
case of passage of the joint resolution in the first instance,
the provisions of Article XVII must be considered. There Is
no need for looklng elsewhere because the Legislature is not
exercising its ordinary legislative function when proposing
constitutional amendments, and the provisions applicable to
ordinary legislative enactments are inapplicable.6
       The principle Is well stated in Dodd, The Revision
and Amendment of State Constitutions (1910) as follows:
       "With reference to restrictions in the consti-
    tution Itself, it may be said that the legislature
    as a body for the proposal of amendments Is bound
    only by the rules speciflcally laid down in the
    article of the constitution which regulates the
    amending process -- that Is, it is not bound by the

4   State v. New Orleang 29 La. Ann. 863;   16 C. J. S.,
    Constitutional Law, Sec. 9.
5   Doodv v. State, 233 Ala.
    V. Powell, 155 Ga,
    Entzmlnger,

6   Collier v. Grag 116 Fla. 845, 157 So. 40 (1934); Johnson
    V. Craft, 205 Aia. 386, 87 So. 375, Opinion of Attorney
    General, No. 1705 (February 13, 1917).
Hon. Durwooa,Manford, page 4         (v-850)

    requirements that Its action as a regular legislative
    body be submitted to the governor nor by the numer-
    ous restriction8 usually imposed as to the procedure
    on regular legislative bills. . . . . ."
       The legislative~~powerunder Article XVII extends to
setting the election date as well as to proposing the amend-
ment. However, since by the constitution the proposal and
the date are included In the one grant of power and are both
parts of the amending process, both must be accomplished by a
two-thirds vote. The constitutional grant is that "the Leg-
islature . . . may propose amendments . . . which . . . shall
be duly published . . . before an election, the time of which
shall be specified by the Legislature.   This contemplates
that the date of the election shall be speclfled In the in-
strument which contains the proposed amendment. The amendment
to a joint resolution proposing a constitutional amendment
even of the date specified for the election must then be of
equal dignity with the original proposal. It must be proposed
at 'any biennial session, by a vote of two-thirds of all the
members elected to each House," and be "entered by yeas and
nays on the journal." This is true no matter what title is
given to that which is used to accomplish the legislative
purpose.
       Under the rules of procedure adopted by the legislature,
the constitutional mandate may be followed only by a joint
resolution and not by a concurrent resolution since amendments
may be proposed only by joint reso1utions.i' Hence ln order to
change the date of the election provided for in the proposals
passed by the Legislature a joint resolution to this effect
should be passed In the same manner as was done when the pro-
posals were originally made.
       If the amending joint resolution contains a single sub-
ject and purpose, such as postponing the dates of the electlons
on all proposals heretofore made by the 51st Legislature for
amendment of the Constitution In order to furnish additional
time for public notlce and consideration, we see no reason why
all of such proposals may not be amended by a single new joint
resolution adopted by a two-thirds vote of each House.
       In order to be proper, the amending resolution and each
original proposal together must provide an absolutely certain


7   Notes 2 and   3, supra.
.   . . ..




             Hon. Durwooa Manford, page 5         (v-850)


             date upon which the election must be held.8 It would be ad-
             visable to provide in such joint resolution that it specifi-
             cally amends each previous proposal by mentioning therein the
             number and title of each one. This would not conflict in any
             way with the constitutional prohibitions applicable to or-
             dinary legislation.9
                    With regard to publication Article XVII provides that
             the "proposed amendments shall be duly published once a week
             for four weeks, commencing at least three months'before an
             election. . . in one weekly newspaper of each county, in which
             such a newspaper may be published. . ." (Emphasis added).
             It has been called to our attention that such publication of
             the amendments previously proposed has been commenced.
             Should the election date be changed frbm September 24, 1949'
             to November 8, 1949 it would follow that the publication al-
             ready made would not be applicable to the electlon to be
             held on November 8, 1949.
                    Although it has been held in a suit brought after ,the
             election on a proposed constitutional amendment that sub-
             stantial compliance with the constitutional requlrement of
             publication is sufficient,10 prior to the electlon every pos-
             sible effort should be made to comply, and a stricter attltute
             will be taken by the courts.11   The publication which has
             been had thus far states that the election is to be held on
             September 24, 1949. Should this be changed, In the light of
             the strict construction rule which applies prior to adoption,
             provision should be made for a republication of those pro-
             posed amendments already published.


             8   Cartledge v. Wortham, 105 Tex. 585, 153 S. W. 297 (1913).
             9   Note 6, supra.
             10 Whiteside v. Brown, 214 s. w. 2a 844 (Tex. civ. App. 1948,
                error aismlssea W.O.J.)
             11 McCreara v. Soeer, 156 Kg. 783, 162 S.W. 99 (1914); Arnett
                v.a~lli~n,
                       1 2 Ga.
                             279
                               524,
                                 Kg. 186
                                      720,
                                         S.E.
                                           13226
                                               S.W.
                                                 4202d(1936).
                                                        76,(1939); Mayer v.
                     ,
                                                          . .. . .   (




Hon. Durwood Manford, page   6            (v-850)

                             SUMMARY
       Joint resolutions proposing constitutional
    amendments may be amended to change the dates
    set for elections thereon by a joint resolution,
    so long as the provisions of Article XVII of the
    Texas Constitution regarding the number of votes
    ana entry upon the journal are complied with.
    In the light of the rules and practice of the
    Legislature, this may not be accomplished by a
    concurrent resolution.
                                 Yours very truly,
                              ATTORNEY GENEBAL OF TEXAS

                                 By s/E. Jacobson
                                        Assistant

                                       s/Bruce Allen
                                         Bruce Allen
                                           Assistant

EJ/BA/lg/wc

APPROVED
S/Price Daniel
ATTORNEY GENERAL
