February 3, 1958 

Honorable Wm. J. Burke 

Executive Dlreqtor 

State Board of Control 

Austin, Texas 

Dear Mr. Burke: 

Opinion No. ~~-358 

Re: Authority of the 36th 

lJ~visloq Association of 

the Texqs Vatlopal Guard 

to erect a Monument as a 

memor$al to the Members 

of 'the 36th Division' 

under the provisions of 

Senate Bill 437 of the 

55th Legislature and 

House Concurrent Resolution 

76 of the 54th Legislature. 

You have requested an opinion from this office 

concerning the interpretation of House Concurrent Resolution 

76 passed by the 54th Legialature,and its present validity 

since the passage of Senate Bill 437 passed by the 55th Legislature. House Concurrent Resolution 76, whloh was passed by 

the 54th Legislature, provided In part as follows: 

"RRSOLVRD by the House of Representatives of 

the State of Texas, the Senate concurring, that 

the 36th Division Assoaiatlon be and it Is hereby 

authorized to erect on the Capitol grounds in 

Austin, a suitable monument as a memorial to the 

members of the 36th Division, Texas Natgonal 

Guard, who served during World Wara 5 and II, the 

monument to be created under the supervision of 

and at a location seleated by the State Board of 

Control, without any cost to the State of Texas." 

You are concerned with whether or not this resolution is still in force and effect since the passage of Senate 

Bill No. 437 passed by the 55th Legislature, codified as 

Article 861b, Vernon's Texas Penal Code, and which Aat reads 

in part as follows: 
-- 

Honorable Wm. J. Burke, Page 2 (~~-358). 

"Section 1. It shall be unlawful, without 

the prior express consent of the Legislature, 

for any officer of this state or any employee 

thereof or any other person to construct, build, 

erect or maintain any building, structure, 

memorial, monument, statue, concesslon or any 

other structure including creation of parking 

areas or the laying of additional paving 

of the grounds that surrounded the State 

. . . 

on Zny 

Capitol ,, 

" . . . 

"Sec. 5. All laws or parts of laws 

conflict herewith are repealed." 

in 

Article 861b further provides that It shall be a 

misdemeanor for any officer or employee of this State or 

other person to violate Section 1 of'the above mentioned 

article. 

You have propounded to this office the following 

questions to be answered: 

"(1) Since the authority was granted by 

resolution, Is the authority for the erection 

of the monument to the 36th Division valid with 

the passage of S.B. #437? 

"(2) Since the passage of S.B. #k37 which 

became effective Way 31, 1957, provided for,prior 

express consent, should the 36th Division of the 

Texas National Guard renew its request before the 

Legislature Andy obtain a new authorization? 

"(3) Since it appears that it will be some 

time before the 36th Division monument plans are 

ready for examination and the final determination 

of the site made, for what approximate period is 

the authority granted by resolution or other 

action of the Legislature considered effective 

and/or valid as it relates to the erection of 

monuments, etc., on the Capitol grounds? 
Honorable Wm. J. Burke, Page 3 W-358). 

” 4 

$4 

Would the Board of Control be in riolation 0 he provisions of S.B. ,#37 to permit the 

tentative selection of a site on the Capiol 

grounds with the speelfic understanding w ! th the 

36th Division that final approval was not to be 

granted for the permanent use of any site selected 

until after the approval of plans and specifications by the Board of Control?' 

It,was the purpose of the Legislature, in passing 

Senate Bill 437, to prevent haphazard construction of buildings, 

monuments and other edifices on the Capitol grounds without 

prior approval of the,Leglslature, in order that the Capitol 

grounds might retain their attractiveness. 

It is the opinion of this office that Rouse Concur-~ 

rent Resolution 76, passed by the 54th Legislature, meets the 

neoesaary requirements as set out in Senate Bill 437. In the 

situation you pose, the consent haa already been obtained 

from the Legislature. It is olearly the intent of the Legislature that consent of the Legislature be the only requirement 

necessary before the erection of any typeof structure, and 

since the 36th Division has already obtained consent, it would 

be foolish to require them to go through the proaedure again. 

Further, It is the opinion of thia office that the 

resolution passed by the 54th Legislature Is still in force 

and effect and that the Board of Control has authority under 

that resolution to permit the tentative selection of a site 

on the Capitol ground5 by the 36th Division Association of 

the Texas National Guard. The Board of Control, after the 

selection of the site, still has the right to approve the 

final plans and specifications of the monument to be erected 

by the Association. 

SRMMARY 

Since the 36th Division Association 

of the Texas National Guard has 

obtained legislative consent to 

construct a monument on the Capitol 
Honorable Wm. J. Burke, Page 4 (~~-358). 

grounds, the requirement set out 

in Artiale 861b of Vernon's Texas 

Penal Code has been met. 

Yours very truly, 

WILL WILSON 

Attorney General of Texas 

- Llnward Shivers 

Assistant 

LS:Jl 

APPROVED: 

OPINION COMMITTEE 

Geo. P. Blaakburn, Chairman 

Jack Goodman 

J. Mark McLaughlin 

Ralph R. Rash 

REVIEWED FOR THE ATTORNFiY GENERAL 

BY: 

W. V. Geppert