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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. 1andHouseBill Austin,.Texas 'No.,,2 of the Second Called Dear Mr. Heatly:~ " %&ion, 55th Legislature,

. " Youhave,requested the:Opinion of this office on the constltutLonality of House,Bi;ll No. 1and HouseBill No, 2, now pendingbefore 'the State Affairs Committee of,the House. ,~, No. 1.' ", Weshall 'first consider '3% provisions of House.,Bill

Section 1of the latter bill recites the purpose of the bill~in the following terms:

" yThe'purpose'Of,this"Act isto'further pro- ~"videofor the maintenance,,of law, peace, and~order in.the operation of the public schools without resort to military occupation or control. Theduties ~arid'powersvested ,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 2provides 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 Guardand other 'military forces:.shall not be used for the foregoing purposes. There is further provision that whena school board finds that violence, or thedangerthereofj; ,~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:&cai&

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l , ,Honorable W. S. Heatly, ~page2. (w-323).

Section 3provides that finthe event the National Guardor any other military troops or personnel are employed or used upon order of any Federal authority onpublic school property or in the vicinity of anypublic school for direction or control of the order, operation or attendance at such ,school, the school board~havlng~Jurisdlction mayclose 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 4provides that whena school is closed, pursuant to the provisions of Section 2and3, the salaries of school personnel shall not be affected andneither shall such closure affect state aid nor accreditation,

Section 5provides 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 6authorizes 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.

Theforegoing are the provisions of HouseBill No.1, with which weare primarily concerned in passing upon the constltutionality~of the bill. There are other provisions which wehave carefully considered but, in the interest of brevity, have not mentioned.

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

“Thepower to establish andmaintain systems of commonschools, to raise moneyfor that purpose by taxation, andto govern, control andregulate such schools whenestablished 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, andthe,people through the legislature andthe constltutlon have the right to oontrol,and prescribe the limits to which 

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

Asearly as 1845, provision wasmadeIn our State Constitution for the establishment andmaintenance of a system of public free schools. ,Ourpresent constitutional provision is embodied In Section 1of Article VII, which reads as follows:

“Ageneral diffusion of knowledge being essential to the preservation of the liberties andrights of the people, It shall be the duty of the Legislature of the State to establish andmakesuitable provision for the support andmaintenance of an efficient system of public free schools. ’ Theforegoing constitutional provision devolves the duty of establishing andmaintaining public free schools upon the Legislature. In defining the authority of the Legislature In the field of public education, the SupremeCourt of ,Texas, insthe case of MwMlea 40 S.W. 2d 31, said:

“Since the legislature .hasthe mandatory duty to makesuitable provision for the support and maintenance of an efficient system of public free schools, andhas the power to pass any law relative thereto, not prohibited by the constitution, it necessarily 

### followsthat it has a choice In the selection of methods bywhich the objects of the organic lawmaybe effectuated. TheLegislature alone Is ,tojudge whatmeansare necessary and appropriate for a purpose which the constitution makeslegltlmate. Thelegislative determination of the methods, restrictions, andregulations IS final, except whenso arbitrary as to be vloiative of the constitutional rights of the citizen. Theprovisions of HouseBill No. 1are 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 whentroops 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 maybe closed for 80long as either of the foregoing conditions exist. ByIts express terms, the bill operates exclusively against the evil sought to be avoided or corrected, Theauthority granted thereby comes Into existence with the evil and ceases to exist whenthe latter has been eliminated. Its provisions apply alike to all of our schools andall of our citizens.Honorable W.S. Heatly, page 4. (W-323)

With the exceptions hereinafter noted, wethink the bill contravenes noprovision of either our state or federal constitution. Its provisions are entirely consistent with the constitutional mandate directed to the Legislature for the support andmaintenance of an efficient system of public free schools. It also constitutes a legitimate exercise of the police powers of the State.

Theforegoing conclusion Is based upon the assumption that the terms of the bill will be observed andenforced In the mannerandonly for the purposes as set forth therein. Anact constitutional on its face maybecome unconstitutional in the mannerof its enforcement, but It is not within the province of this office to assumethat an act will be enforced, or subverted to the accomplishment of unconstitutional purposes, contrary to its express terms.

Aserious constitutional question is presented In connection with that portion of Section 2, which prohibits the use of the Texas National Guardor other military forces to prevent violence andmaintain peace and order in the operation of public schools. It Is our view that this prohibition violates Section 7, Article IVof the Constitution of Texas, which, in speaking of the powers of the Governor, provides:

"Heshall be Commander-in-Chief of the milltary forces of the,state, except whenthey are called into actual service of the United States. Heshall have the power to call forth the militia to execute the laws of the state, to suppress lnsurrections, repel invasions, andprotect the frontier from hostile Incursions by Indians or other predatory bands." Aswritten, Section 2would constitute an infringementupon the executive powers of the Governor. We understand, however, from your supplemental letter, dated Novemberlbth, that this section will be amendedby the State Affairs Committee, pursuant to the request of both the Governor andthe 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 authorizedby the laws of this state, except as a last reSOrt”. It IS our view that the proposed amendmentwould 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. TheCourt said: "The Governor is empoweredto 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, andthe commission of crime. '.

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. . nowhere limits the of the Legislature-in providing meansto enforce the laws.

. . .' It is entirely consistent with both our Constitution and our form of government thatthe use ~ofthe militia be limited to those circumstances where the civil armof 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, andmakesfunds available for such purposes, is not germaneto the general subject matter of the bill andhence constitutes a separate subject, contrary to Section 35 of Article III of the Constitution of Texas. Wedo not subscribe to this view. Incorporation in the body of an Act of the meansbywhich its object maybe accomplished does not render the Act obnoxious to the constitutional inhibition against bills containing morethan one subject. Accordingly, an Act with one leading subject, which is expressed in its title, maycontain appropriate,provisions designed or tending to accomplish, effectuate or enforce the general object or purpose of the law. 39Tex. Jur. 90andthe cases there cited. Although it is our view that Section 6 can be sustained as a part of HouseBill 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 ~tothe 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 mayclose 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.

Youare accordingly advised that it is the opinion of this office that House,Blll No. 1, subject to the adoption of the proposed amendmentto Section 2thereof and other ,matters mentioned, is constitutional.

It is also our view that the samegeneral principles which sustain the constitutionality of HouseBill No. 1are applicable to HouseBill No. 2. Section 1 of the latter bill, z;ro;i provides in substance that whenfederal troops occupy

its grounds or yards, or adjacent property, either public o$private, that the school shall close andremain closed so long as the troops remain. Aswritten, 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 nowayconnected with or related to the operation of the school.

Section 1 of HouseBill No. 2would require and Section 3 of~House Bill No. 1would only authorize a school board to close the schools whenfederal 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 sowould not makeSeotion 3 of HouseBill 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 1of HouseBill No. 2would 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. Thebill could, of course, be amendedto remedy this defect.

Section 5 of HouseBill No, 2provides 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 uponthe 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 maybe satisfied only by the distribution andapplication of the funds andnot bywithholding them. Attorney-General's Opinion No. O-4052 (1942); Jurnigan
V. Finley, 90Tex. 205.

Wewould suggest that a section be added to clearly exempt the normal operation of the Reserve Officers Training Program, National GuardandTexas State Guard, from in any mannercalling into effect the provisions of either bill and also exempting school districts operating on Federal Military Reservations or adjacent thereto.

SUMMARY

HouseBill No. 1 of the Second Called Session of the 55th Legislature, is constitutional subject to the matters noted. HouseBill No. 2is unconstitutional for the reasons stated.

Very truly yours, WILLWILSON Attorney General of Texas

LP:zt APPROVED: OPINIONCOMMITTEE Geo. P. Blackburn, Chairman WaylandRivers, Jr. John H. Minton, Jr. Joe Carroll Riley EugeneFletcher "Leonard Passmore Assistant

GrundyWilliams REVIEWED

FORTHEATTORNEY

GENERAL BY: JamesN. Ludlum