                                                           July     6,~ 1972



Honorable           Preston        Smith                            Opinion             No.         M-1167
Governor           of Texas
State     Capitol      Building                                     Re:            Necessity               for      subject        matter     of
Austin,      Texas         78711                                                   resolutions               to be         included     in the
                                                                                   calI       of a Special             Session        of the
                                                                                   Legislature                   in order       for   their
Dear      Governor           Smith:                                                consideration                    and passage.


            You      ask     our        opinion         in answer           to the        f,ollowing              questions:


            “( 1)          Does         the    Texas       Constitution                 (Article           III,
                           Section         40 and Article                  IV,     Section           15)     re-
                           quire        the     Governor           to enlarge                the    call     for
                           the     Third        Called         Session,           62nd        Legislature,
                           to enable            the     Legislature              to consider               re-
                           solutions,             the    subject        matter            of which            were
                           not     included            in the present              call,        particular-
                           ly    if a point           of order        is    raised           based         on this
                           fact?


            “(2)           Would          different        constitutional                    gro,unds        apply
                           to consideration                 of joint         resolutions                Andy con-
                           current            resolutions?          ”


            You      state       that     one     of the       reasons            for     your       inquiry          is that,


                           “The         question,          however,              has      recently            risen        as
            to whethe;             or    not     the     Legislature              can        consider             certain
            resolutions            pending            before       each          of the       Houses          unless
            the     Governor             does      open     the     Session             by    amending               the    call
            to include           these         subjects,         one       of which            is    a request             tc the
            Congress             of the        United      States          to call        a convention                to amend
            the United    States                Constitution to prohibit                            forced          busing      to
            achieve   integration                 of our schools.  I’




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Honorable               Preston           Smit~h,           page        2          (M,-1167)




                 You       fwther            stat:e,


                                 “There           have         been         numerous             requests              to this
                 office       to opens the                c,tirrexit        Legislative               Session            (62nd
             ‘Legislature,                    Third            Called        Session)            tq allow            the    Legis-
                 lature       to adopt              certain        resolutions               on various                  subjects.
                 It h,as not been                   considered               necessary                in the       past         to     in-
                 clude       the        subject,        matter          of     resolutions                  in the      call         for
                 a Special              Session           in order           for    their        consideration                       and
                 passage           by     either          or    ‘both Houses                of the          Legislature.                   ”


                 ‘Your      req.uest            inquires           specificall:y                of two        Sections               of our          Texas      C;r;ri
stitution.              The      first        is Article             III,      Section          40 which               restricts               legislation        ai
a special             ses~sion:of             the      legislature.                 It reads:


                                 “When          the       Legislature               shall        be        convened             in
                 special          ses,sion,            there       shall        be no legislation                       upon
                 subjects            other       than          those        designated               in the proclama-
                 tion      of the        Governor               calling         such       s.ession,              or    presented
                 to them          by the         Governor;                  and no such                session           shall         be
                 of longer              durat:ion          than      thirt:y       days.         ”     (Emphasis                added.           )


The    second              is Article            IV,        Section            15 which          requires               approval               of the       Govcr-
nor    to    certain             actions         of the          Legislature;               it reads:


                                 “Every             order,         resolut~ion             or        vote     t.o which               the
                 concurrence                  of both           Ho,uses         of the       Legislature                   may         be
                 necessary,                except           on questions               of adjournment,                          shall
                 be presented                 to the           Governor,             and,        before           it shall            take
                 effect,         shall        be approved                   by him;         or       being        disapproved,~
                 shall      be passed                by both           Ho-uses,”          and        all    the    rules,             pro-
                 Visions          and      limit,ations                shall       apply        thereto           as prescribed
                 in the       last       preceding               section           in the        case        of a bill.          ”


                 We       must       first       consider              the     word        “legislation”                   as    it is used             in Artlcli.
III,   Section             40.       In Ex          parte        Walters,
                                                                     ._I              Ex    parte            Gray,         144 S. W.                 531,    533. iii?
574 (Tex.             Crim.             1912)       the     court:    held         that     the        therm       “legislation”                     2:~ used     ir,
this   Section             40 comprehends                        u:nly the          enactment:                of new        laws            or    the an‘end-
ment        or     repeal          of    existing            ones.




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Honorable              Preston             Smith,         page             3       (M-1167)




               The       term          “legislation                ” in constitutional                   provisions,                  so far        as
our      research               shows,           is uniformly                   used      with,      reference           only         to the        en-
actment,             amendment                   or    repeal          of laws.                Commonwealth                   v.     Griest,             46
Atl.      505 (.Pa.           Sup.       1900);         State         v.       Hyde,       22 N. E.           644,       646 (Ind.           Sup.        18&9);
State     v.     Skeggs,               46 So.          268,        271 (Ala.Sup.                   1908);       and Hatcher                  v.    Mere-
dith,      173 S. W. 2d 665 (Ky.                           Ct.        of App.            1943).


               The       case          of Sweeny              v;     King,            137 A.       178 (Pa.          Sup.           1927)     is directly
in point.              We       quote       from        that       decision:


                                 “At       its    special            session            held      in 1926,        the        Legis-
               lature           adopted          a resolution                   proposing             an amendment                    to
               article           15, of the            state        constitution,               by    adding           a new         set -
               tion      to it,         though           the       subject-matter,                   thereof         was       not     re-
               ferred            to in the            Governor’s                 proclamation                calling          the     ses-
               sion.          . . .        Plaintiff’s             only         contention            is that      a resolution
               for      a proposed                amendment                     to the      Constitution               cannot         be
               adopted            at a special                 session            of the        Legislature,               unless           the
               subject-matter                      thereof            is included               in the       Governor’s               pro-
               clamation.                   The        court         below         did    not      agree        with     this,        and
               dismissed                the bill.              We      are        in a,ccord          with       that        conclu-
               sion.        ”


               We       are       of the         opinion           that        a resolution            is not legislation;                        therefore,
Article         III,     Section            40 of the              Texas          Constitution             does        not     prohibit            the     Legis-
lature        from          passing          resolutions.’                      The      subject       of a resolution                     need     not be
set     out    in the           Governor’s               call        for       a special          session         in order            for     the        Legis-
lamre         to validly             act     upon        the       resolution.


               We       turn       now       to consideration                         of whether           or    not Article                IV,     Section                15
of the        Texas          Constitution                requires               that     a resolution             applying             to Congress                    to
call     a convention                  to amend            the        United           States        Constitution              is     required            to be
presented              to the        Governor             for        his        approval.             In our      opinion            a resolution.                of
the     Texas          Legislature                making             such         an application                to the        Congress              is not           r‘c-
quired         to be        submitted              to the.Governor                       for    his    approval              and      does        not <alI wi:o-
in the        provisions               of Article              IV,     Section            15 of the          Texas           Constitution.                    I+.-
marily,          this        question            is    resolved                by Article           V of the           Constitution                of the       Unii<.:d
States.          In its          relevant             portion,             it reads:




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 Honora~ble           Preston~S,m,ith.                        page      4           (M-1167)




                               “The          Gngress,                  whenever              two     thirds      of both         Houses
               shall     deem             ,it ‘necessar),                   shall     pwpose             Amendments                 to t111s
               Constitution,                    on the Applications
                                           o*, -_-                          of the Legislatures                                         of
              two      thirds         uf  the
                                      -___-    sever3S        St:ates.,
                                                     .,,.-- -.--_       sha.11 call a Convention                                          for
              proposi,ng              Amendmwts.             . . . ” (Emphasis      added.    )


 This     provision            of the IYa,rional                     Cczstitution              provides          for        application           of the
 Legislat:izre          and      the         Legisldt~~~re              only.          The        most     recent           court     decision               on
 this     point      which           we      fiend is PetuskeEv.                          Rampton:            307 F. Supp.              235,           (D.       C1.,
 Utah.,      1969),~      rev’d.             0.1, ,,r:her           gro,nds         231      F. 2d       378,       cert.      denied.            401 IJ. S.
 913.       We     q’uote       frum          that        case:


                               “3.          The      Actwn             uf the        1965     Utah       State       Legislature,                 in
              adoptmg            a resol,&ion                    calling        for       a feder’al         constitutional               con--
              vention,           constitutes                   an exercise                of a federal              constitutional
              function          under              Article           V of the         Constitution              of the        United       States
               . . . (at         p.         256.     )

                               (1.    . .      .


                               “Th,e         word         ‘leglslatdres’                  i,n the     rd,tificatlon            cl&use        of
              Article          V does              not, mean            t,hc whole~legislative                       process   of
              the      state         --     as defer           rd    in the         state     constitution.              Hawke    v.
              Smith       says            it means             i:he representative                       lawmaking             body       only,
              ‘because           Eratification                  by a state             of a constit.utionai                   amendment
               is not an act                 of leglslatloo                  wit.hi:c       the    proper        sense         of thz      word              ’


                               “No          doubt: the          wurd          ‘leglsl&ures!               has       the     same       :nean-
               rag     in the         applicat:ior!             cl<ulse that it                   bears  ,in the ratification
               clause         of Article                 V.     The applicati,>n                    is nut ‘an act of Icgis
              lation’         within,         the        proper         sense         of the        wr:rd.      I’ (at, p.          250 .251.          )


 This       opinion      cites        .-.-.-- Y. Smith,
                                  Hawke
                                  ---“                                          253       ‘U.S.      221 (1920~),             IO A. L. R.               1504
 as having           esta’blished        this pri,nciple;                           see     also     Wise
                                                                                                     --_--._-- v.      Chandler,             IO8 S. W. Zd
 1024,       1033      (Ky.          Cf:.    of App.                1937.)


              No      provisiti,n.           of the           Strlte    ConstltJtion                can      contravene              3. prov~s.~or~               o:
 the    Federal         Const1t~.&iun                    because            of rhe        supremacy             clause         of Arllcle              Vl        of I:,(.
I Federal         Cunstit~utiw~.                    The       Federal           CvgslIt,titi<ir.          is the          supreme         law          of the          i:jl:d




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Honorable             Prest~on           Smith,             page          5            (M-l       167)



               The        above        view          of t,he requirements                             of federal        law       is con:3isLcnt
with     the     procedure                  for      amending                 the      State      Constitution            provided              by AL ticit.
XVII,      and       is    consistent                with           t:he reasoning                   of a prior         opinion        of this            ,Jffiz;:,
issued         in 1917.               That         opinion          1 held           that      Article        IV,      Section       15 of our                 ‘I’Y.~L:
Constitution               relates           only         ‘I.   .    . to matters                 of ordinary             legislation                           ”
(Emphasis             added)           and,

                                1,.    . . that         a resolution,-,  proposing                             an amendment                    to
               the     Constitution                  /of Texas       / is not a bill                           or    a resolution
               within        t,he coritemplaticm                           of-section             34 of Article            3 --
                                                                                                                             and           is not
               to be       controlled                by the          ordinary                legislative            procedure.             ”
               (Emphasis                added.            ) (at      p.       763,-764)          2


The      1917     opinion             was          issued           in answer                to the      inquiry,

                                (1. .       . whether                or       not Article              XVII     of the      Constitution.
               which        authorizes                 the        Legislature                  to propose              amendments                   to
               the     Constitution                  to be voted                 on by         the     people,         is related              to or
               is limited              by     any      other             provision             of the        Constitutiou           in regal              d
               to legislative                  procedure.                  ”     (at    p.      760.     )


The      1917        opinion          was          based        upon           the     case      of    Commonwealth                  v.        Griest,              46
A.      505 (Pa.           Sup.        1900)         (supra),                 and      the    case       of Hollingsworth                  v.       Virgins,
3 Dall.         378,        1 L. Ed.               644.         The        latter        case         was     in reference            to the power                       Q:’




I/Opinion             of Attorney                  General               B.,F.         Looney,           to Hon.        I;‘. 0.     Fuller,               Speakei
of the     House,            Fe’bruary                13,         1917,          Op.     No.         .1705-BR          48~, p.      480,            contained
in Attorney               General             Looney’s               Report             of Attorney             General           a,t p.       760.-765.                 A
copy      of this         opinion            is attached.


2/      Sec.     34 of Art.                  III    reads           as    follows:              “After        a bill     has      been         considered
and     defeated           by     either            House           of the           Legislature,              no bill      containing                   the    saili.:
substance,                shall       be passed                 into      a law         during         the~eame           session.              After           ri ?:L-
solution        has        been acted   on and                           defeated,  no resolut:ion   containing                                     the        same
substance,                shall be considered                             at the same  session.    ”




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Honorable               Preston          Smith,        ~page 6                (M-1167)




the      President          PDFthe,?Init:ed             St.&es        under        the     language               of Article          I,    Section;
7,     Sdbdivisior.           3 of the          Federal           Constitution             that      is     similar         to Article              XVII.
Texas         Constitution.                   This    Attorney            General          Opinion           was      cited      and followed
in At:torne)r            General          Opcnion           No.     2761,         d&ted      March           9.      1929,      to Hurl.            Fred
H.      Minor,          Speaker          Pro      Tern       of the       Texas        House          of Representatives.


                This      former          opinion          of this       office      issued          by     Attorney           General             Looney
correctly             advises          that    a resolutioa              propusing            an amendment                     to the        Constilutior.
of    Texas          is not, subject             to the      approval             of th’e Governor                  under       Article             IV,     S’ec-
tion      15 of the         Texas         Constitution.                  We    point       out,      however,            that         there         is one
material             difference          b&weea             the    authorization               of the        State      Constitution                 in
Article          XVII      and     the    a,uth,)rizarion                +f the National                  Constitution           in Ar;icle                1’.
Article          XVII      of the       St:ate       Consr~ituiion            lunit~s      to the          regular       biennial             session
of the      Legislature,                 the     authority          of the        Legislature               to propose            amendments
by     resolution.               Hence,,         a resolution             in special           session             proposing               an arnend-
ment       to the        State      Constitution              would        not be proper.                    There        is no such                lirnita-
,tion     in Article          V of the           Nat,ional         Constitution,              and the             Legislature               may
validly         pass      d resolution               applyiag         to Congress                  to call        a convention               for     amend-
ing      the National             Const:it&o:n              even      t,hough        it is     sitting        in special              s&sslon.


                An      interest,ing           case        i?, which       t.he Legislature                  acted      by      resolution,
where        the       subject         matter         of the’ resolution                 certainly           was      not      in the        call     of
the      special         session,         was        the    impeachment                  of Governor                Ferguson.                 See -Fer-
guson       v.       Maddox,            114 Tex.           85,     263 S. W.            888 (1924.            )     In this      case         the Supreme
Court       sustained             the    power         of the       Legislature               to bring,             prosecute              and try          im-
peachment               proceedings              against          Governor           Ferguson               at its      special            session.              See
also      the     case      of Ex        parte        Wolters,           Ex    pa~rte        Gray,          144 S. W,           531 (Tex.                 Crim
l9l2),        wherein            the     court       upheld        the    validity         of a resolution                   creatillg         a leg~s-
lative      investigating                cormnittee               at a special            session          although            the particular
subject          matte      :. was       not     in t:he Governor’s                  call.


                Our      opi&xis           m the        abuve        matt.ers         obviuitsly             mean       that     no valid
point      of order          may         be raised           t,o question           the      act     of the Legislatlire                     in pass-
ing     a resolution              request.ing            t:he Congress               tti ca,ll       a convention               for        the purpose
of amending               the National               Co,nstit:ution.


                 Your      second         question           a~sks whether                different          constitutIona                   grounds
apply      to consideration                     of joint         resolut,iuns           ar!d concurrent                 resolutions.                      The




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Honorable            Preston            Smith,        page        7      (M-1167)




terms       “concurrent                 resolution”               and    “joint       resolution”               do not appear                   in the
constitutional             provisions             under.          discussion.                 These          terms         of nomenclature
have      nothing         to do with            what      the      Constitution               requires             or     does       not    require.
In the     past,~        the     term         nconcurrent               resolution”             has         generally             been     used      to
apply      to those            resolutions            to which           the    concurrence                    of both        Houses          of the
Legislature              is necessary,                 and to which               Article            IV,      Section         15,        providing
for     approval         by      the    Governor,               is applicable.                  The         term         “joint      resolution”
has     in the past            been      applied         solely         to those          resolutions                   proposing           Consti-
tutional      amendments.                       These      latter         resolutions                 are      not      subject          to the    ap-
proval      of the ,Governor.                      As     to them,             Article          IV,        Section         15 has          no appli-
cation.


              Insofar           as the        terms       “concurrent                 res,olution”              and       “joint         resolution”
provide        a ready           means          of distinguishing                    between            the     two       types       of legisla-.
tive     actions,         they         z+re useful.             Insofar         as     they      might         be       thought          to indicate
some       different            manner          of action          by the         Legislature,                  they       are      meangingless.
There       is nothing             in the       Texas        Constitution                to prevent               the     Legislature              from
calling       a resolution               proposing            a constitutional                   amendment                  a concurrent                  re-
solution,          nor     is there            anything           to prevent           the      Legislature                from          ca,llmg      an
amendment              subject           to the       approval           of the        Governor,                a joint           resolution.              R?-
gardless        of what           a resolution               is    called,           if its     purpose              is to propose              a con-
stitutional          amendment,                  and     it is passed              by both            Houses            of the       Legislature,
it is not      subject           to the        Governor’s               approval.


                                                          SUMMARY


                               The      Texas         Legislatur~e,               sitting        in special               session.
              may request  the                   Congress    of the United   States                                  to call a c‘ox>-
              vention to amend                    the United   States Constitution                                    even though
              this       subject         was     not     included          in the        proclamation                     of the         Go\ ei -
              nor     calling           the    session,            and provided                 the     resolution                passes
              both       Houses          of the        Legisiature,~              no valid             objection            may       be
              made        to it.


                               The      terms         “concurrent               resolution”                 and      “joint        rtso
              lution”          are      matters          of nomenclature                      only      and       it is necessar.y
              to look          at the         content      of the        resolution              itself        to determine
              what        constitutional                provisions             are     applicable.


                                                                          Yours          very         truly,




                                                                          Attorne#General                          of    Texas

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Honorable             Preston         Smit.h,   page   8     (M,.1167)




APPROb’ED:
OPINlON              COMMIT           TEE


Kerns         Taylor,          Chairman
W.      E.    Allen,         Co-Chairman


Houghton             Brownlee
J. C.        Davis
Milton        Richardson
John     Reeves


SAMiJEL              D.     MQANIEL
Staff    Legal            Assistant


ALFRED               WALKER
Executive            Assistant


NOLA          WHITE
First        Assistant




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