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*~O~KN’~:,~ c:*:Nw-=LL‘tL Novet&r 18, 1957 

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Honorable.'W.,:S.~ Heatly, Opinion No. WW-323 

Chairman 

State Affairs Committee Re: Constitutionality of House 

House:of Representatives !, ~' Bill No. 1 and House Bill 

Austin,.Texas 'No.,,2 of the Second Called 

Dear Mr. Heatly:~ " 

%&ion, 55th Legislature, 

. 

" You have,requested the:Opinion of this office on the 

constltutLonality of House ,Bi;ll No. 1 and House Bill No, 2, now 

pendingbefore 'the State Affairs Committee of,the House. 

,~, 

No. 1.' 

", We shall 'first consider '3% provisions of House.,Bill 

Section 1 of the latter bill recites the purpose of the 

bill~in the following terms: 

" yThe'purpose'Of,this"Act isto'further pro- 

~" video for the maintenance,,of law, peace, and~order 

in.the operation of the public schools without resort to military occupation or control. The duties 

~arid'powers vested ,in,public ,officlals and school 

: : ,'boards under this Act shall be in addition to and 

cumulative of those with which they are vested un- 

,' der existing law for accomplishment of the purpose 

of this Act or any Section thereof.'! 

Section 2 provides insubstance that the Governor, 

through the Department of Public Safety, shall provide assistance whencalled upon by local authorities to maintain peace and 

order :in the operation of public schools. Said section further 

provides ~that'the Texas National Guard and other 'military 

forces:.shall not be used for the foregoing purposes. There is 

further provision that when a school board finds that violence, 

or the dangerthereofj; ,~catslot ;be $revetited'except~ by resort to 

mlXLtary~;~force! o$.ioccupatiion'.'of ;a !ptiblic .~sehool, ,the school 

board.&!y.4loi$e the sohoof'!atid ~suspe.ndft;s ;operat%on for such 

pepf:&c ai& cfbH& :ib&&?r~&;fi+&&#,m ,pt.',+&@ g$a'p$ td ,ims;':f&at:n order and 

th~~p~~biQld~i.p~'be~'~rl'~~~eaIld~~e :~~~&,i$h@:~t~~~~ ,of::t;his Act, 

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Honorable W. S. Heatly, ~page 2. (w-323). 

Section 3 provides that fin the event the National 

Guard or any other military troops or personnel are employed 

or used upon order of any Federal authority on public school 

property or in the vicinity of any public school for direction or control of the order, operation or attendance at such 

,school, the school board~havlng~Jurisdlction may close the 

school and suspend its operation so long as said troops remain on or within the vicinity of the school for any such 

purposes. 

Section 4 provides that when a school is closed, 

pursuant to the provisions of Section 2 and 3, the salaries 

of school personnel shall not be affected and neither shall 

such closure affect state aid nor accreditation, 

Section 5 provides that the school board shall use 

all resources of the district to provide out-of-classroom 

instruction for the pupils concerned and for the reopening 

of school at the earliest possible time that peace and order 

can be maintained without the use or occupation of military 

forces. 

Section 6 authorizes the Attorney General to assist 

public school boards In the defense of certain suits in the 

Federal Courts and further authorizes the Governor to transfer 

funds to the Attorney General for such purposes. 

The foregoing are the provisions of House Bill No.1, 

with which we are primarily concerned in passing upon the 

constltutionality~of the bill. There are other provisions 

which we have carefully considered but, in the interest of 

brevity, have not mentioned. 

In 78 C.J.S. p. 624, it is stated: 

“The power to establish and maintain 

systems of common schools, to raise money for 

that purpose by taxation, and to govern, control and regulate such schools when established 

is one of the powers not delegated to the Unlted 

States by the federal conetltutlon, or prohibited 

by it to the atatea, but,ia reserved to,the state0 

respectively or to the people, and the,people 

through the legislature and the constltutlon have 

the right to oontrol,and prescribe the limits to 

which they will go tn. eupplylng eduoatlon at public expense, ” 
Honorable W. S. Heatly, page 3. (w-323) 

As early as 1845, provision was made In our State 

Constitution for the establishment and maintenance of a system 

of public free schools. ,Our present constitutional provision 

is embodied In Section 1 of Article VII, which reads as follows: 

“A general diffusion of knowledge being 

essential to the preservation of the liberties 

and rights of the people, It shall be the duty 

of the Legislature of the State to establish 

and make suitable provision for the support 

and maintenance of an efficient system of public 

free schools. ’ 

The foregoing constitutional provision devolves the 

duty of establishing and maintaining public free schools upon 

the Legislature. In defining the authority of the Legislature 

In the field of public education, the Supreme Court of ,Texas, 

ins the case of MwMlea 40 S.W. 2d 31, said: 

“Since the legislature .has the mandatory duty 

to make suitable provision for the support and 

maintenance of an efficient system of public free 

schools, and has the power to pass any law relative 

thereto, not prohibited by the constitution, it 

necessarily follows that it has a choice In the 

selection of methods by which the objects of the 

organic law may be effectuated. The Legislature 

alone Is ,to judge what means are necessary and 

appropriate for a purpose which the constitution 

makes legltlmate. The legislative determination 

of the methods, restrictions, and regulations IS 

final, except when so arbitrary as to be vloiative 

of the constitutional rights of the citizen. 

The provisions of House Bill No. 1 are founded upon 

the premise that the presence of military troops In or about 

the public schools of the State is not conducive to the malntenance of an “efficient” system of public free schools. The 

bill, accordingly, provides that when troops are employed or 

used upon or in the vicinity of public school property or when 

such conditions of violence and disorder exist in connection 

with the operation of a public school that violence or the 

danger, thereof cannot be prevented, except by resort to military force, the school may be closed for 80 long as either of 

the foregoing conditions exist. By Its express terms, the bill 

operates exclusively against the evil sought to be avoided or 

corrected, The authority granted thereby comes Into existence 

with the evil and ceases to exist when the latter has been 

eliminated. Its provisions apply alike to all of our schools 

and all of our citizens. 
Honorable W. S. Heatly, page 4. (W-323) 

With the exceptions hereinafter noted, we think 

the bill contravenes no provision of either our state or 

federal constitution. Its provisions are entirely consistent 

with the constitutional mandate directed to the Legislature 

for the support and maintenance of an efficient system of 

public free schools. It also constitutes a legitimate exercise 

of the police powers of the State. 

The foregoing conclusion Is based upon the assumption 

that the terms of the bill will be observed and enforced In the 

manner and only for the purposes as set forth therein. An act 

constitutional on its face may become unconstitutional in the 

manner of its enforcement, but It is not within the province 

of this office to assume that an act will be enforced, or subverted to the accomplishment of unconstitutional purposes, contrary to its express terms. 

A serious constitutional question is presented In 

connection with that portion of Section 2, which prohibits 

the use of the Texas National Guard or other military forces 

to prevent violence and maintain peace and order in the operation of public schools. It Is our view that this prohibition 

violates Section 7, Article IV of the Constitution of Texas, 

which, in speaking of the powers of the Governor, provides: 

"He shall be Commander-in-Chief of the milltary forces of the,state, except when they are 

called into actual service of the United States. 

He shall have the power to call forth the militia 

to execute the laws of the state, to suppress lnsurrections, repel invasions, and protect the 

frontier from hostile Incursions by Indians or 

other predatory bands." 

As written, Section 2 would constitute an infringement upon the executive powers of the Governor. We understand, 

however, from your supplemental letter, dated November lbth, 

that this section will be amended by the State Affairs Committee, p ursuant to the request of both the Governor and the 

author of the bill, to provide that the "Texas National Guard 

and other military forces shall not be called or used for 

such purposes by the Governor, or any other official authorized by the laws of this state, except as a last reSOrt”. It IS 

our view that the proposed amendment would render said section 

constitutional. 
Honorable W. S. Heatly, page.5.. (Ww-323) 

This.conclualon finds support in the case of Neff et 

al v. E&in, 270 S. W. 873 (Writ of error ref.), which med 

the constitutionality of the Act creating the Texas Banger Force. 

The Court said: 

"The Governor is empowered to call forth 

the militia to execute the laws of the state, to 

suppress insurrections, repel invasions, and 

protect the frontier from hostile incursions by 

Indians or other predatory bands; but it is not 

intimated that the laws shall be executed by the 

militia alone, but the plain inference is that 

the militia is to be used in ,executing the laws 

as against organized violation of laws, and the 

commission of crime. '. . . 

II 

authoriiy 

The Constitution . . nowhere limits 

the of the Legislature-in providing 

means to enforce the laws. . . .' 

It is entirely consistent with both our Constitution and our 

form of government thatthe use ~of the militia be limited to 

those circumstances where the civil arm of the State is inadequate to cope with the situation. 

It has been suggested that Section 6, which authorizes 

the Attorney General to assist local school boards in the defense of certain law suits, and makes funds available for such 

purposes, is not germane to the general subject matter of the 

bill and hence constitutes a separate subject, contrary to 

Section 35 of Article III of the Constitution of Texas. We do 

not subscribe to this view. Incorporation in the body of an 

Act of the means by which its object may be accomplished does 

not render the Act obnoxious to the constitutional inhibition 

against bills containing more than one subject. Accordingly, 

an Act with one leading subject, which is expressed in its 

title, may contain appropriate,provisions designed or tending 

to accomplish, effectuate or enforce the general object or purpose of the law. 39 Tex. Jur. 90 and the cases there cited. 

Although it is our view that Section 6 can be sustained as a 

part of House Bill No. 1, the Legislature might wish to incorporate the provision in a separate bill to remove any doubt 

relative thereto. 

It is noted that the last sentence.of Section 6, 

authorizes the Governor to transfer certain funds ~to the office 

of the Attorney General. : This:is a.matter ,which.is notincluded in.the~caption of the bill and should be so included. 
Honorable W. S. Heatly, page 6. (w-323) 

It is also noted that the caption Indicates that 

either the Governor or the local school board may close a 

school, but the body of the Act vests such authority solely 

in the school board. This is a discrepancy which you will 

doubtless wish to correct. 

You are accordingly advised that it is the opinion 

of this office that House,Blll No. 1, subject to the adoption 

of the proposed amendment to Section 2 thereof and other ,matters 

mentioned, is constitutional. 

It is also our view that the same general principles 

which sustain the constitutionality of House Bill No. 1 are applicable to House Bill No. 2. Section 1 of the latter bill, 

z;ro;i provides in substance that when federal troops occupy 

its grounds or yards, or adjacent property, either 

public o$ private, that the school shall close and remain closed 

so long as the troops remain. As written, the language Is sufficiently broad to place school districts which are adjacent to, 

or inclusive of, military reservations in a doubtful status. 

The school would be compelled to close even though the presence 

of the federal troops be in no way connected with or related to 

the operation of the school. 

Section 1 of House Bill No. 2 would require and Section 3 of~House Bill No. 1 would only authorize a school board 

to close the schools when federal troops were used. If a board 

should determine that the presence of the troops rendered the 

school inbfficient and ineffective to carry out its educational 

purpose, then in our opinion the board could close the schools 

and in doing so would not make Seotion 3 of House Bill No. 1, 

unconstitutional. However, if the troops did not impede the 

efficiency of the school nor render ineffectual its educational 

purpose, it could not close the schools simply to thwart the 

federal order. Because Section 1 of House Bill No. 2 would require the school to close irrespective of any effect the presence of federal troops might have upon the operation of the 

school, the bill is unconstitutional to this extent. The bill 

could, of course, be amended to remedy this defect. 

Section 5 of House Bill No, 2 provides that no state 

funds shall be paid to any school district which fails to comply with the provisions of the Act. This provision cannot have 

any effect upon the distribution of the state available school 

fund. Section 5 of Article VII of the Constitution of Texas 

renders it mandatory that this fund be distributed annually to 

the several counties according to their scholastic population. 
Honorable W. S. Heatly, page 7. (w-323) 

This constitutional provision may be satisfied only by the distribution and application of the funds and not by withholding 

them. Attorney-General's Opinion No. O-4052 (1942); Jurnigan 

V. Finley, 90 Tex. 205. 

We would suggest that a section be added to clearly 

exempt the normal operation of the Reserve Officers Training 

Program, National Guard and Texas State Guard, from in any 

manner calling into effect the provisions of either bill and 

also exempting school districts operating on Federal Military 

Reservations or adjacent thereto. 

SUMMARY 

House Bill No. 1 of the Second Called 

Session of the 55th Legislature, is 

constitutional subject to the matters 

noted. 

House Bill No. 2 is unconstitutional 

for the reasons stated. 

Very truly yours, 

WILL WILSON 

Attorney General of Texas 

LP:zt 

APPROVED: 

OPINION COMMITTEE 

Geo. P. Blackburn, Chairman 

Wayland Rivers, Jr. 

John H. Minton, Jr. 

Joe Carroll 

Riley Eugene Fletcher 

"Leonard Passmore 

Assistant 

Grundy Williams 

REVIEWED FOR THE ATTORNEY GENERAL 

BY: James N. Ludlum