February 3, 1958

HonorableWm. J. Burke ExecutiveDlreqtor State Board of Control Austin, Texas

Dear Mr. Burke: OpinionNo. ~~-358
Re: Authorityof the 36th lJ~visloq Association of the Texqs Vatlopal Guard to erect a Monument as a memor$al to the Members of 'the36th Division' under the provisions of Senate Bill 437 of the 55th Legislatureand House ConcurrentResolution 76 of the 54th Legislature.
You have requestedan opinion from this office concerningthe 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 ConcurrentResolution76, whloh was passed by the 54th Legislature, provided In part as follows: "RRSOLVRDby the House of Representatives of the State of Texas, the Senate concurring,that the 36th Division Assoaiatlon be and it Is hereby authorizedto erect on the Capitol grounds in Austin, a suitablemonument 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 createdunder the supervisionof and at a location seleatedby the State Board of Control,without any cost to the State of Texas." You are concernedwith 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:--

HonorableWm. 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, concesslonor any other structure including creation of parking areas or the laying of additionalpaving of the grounds that surroundedthe State

. . . on Zny Capitol ,,

"
. . . "Sec. 5. All laws or parts of laws conflictherewith are repealed."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 authoritywas granted by resolution,Is the authority for the erection of the monument to the 36th Divisionvalid with the passage of S.B. #437? "(2) Since the passage of S.B. #k37 which became effectiveWay 31, 1957, provided for,prior express consent, should the 36th Division of the Texas National Guard renew its request before the LegislatureAndy

obtain a new authorization? "(3) Since it appears that it will be some time before the 36th Divisionmonument plans are ready for examinationand the final determination of the site made, for what approximate period is the authoritygranted by resolutionor other action of the Legislatureconsideredeffective and/or valid as it relates to the erection of monuments, etc., on the Capitolgrounds?HonorableWm. J. Burke, Page 3 W-358).

” 4 $4 Would the Board of Controlbe in riolation 0 he provisionsof S.B. ,#37 to permit the tentative selectionof a site on the Capiol ! grounds with the speelficunderstanding w th the 36th Division that final approvalwas not to be granted for the permanentuse 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 Capitolgrounds without prior approval of the,Leglslature, in order that the Capitol groundsmight retain their attractiveness.

It is the opinion of this office that Rouse Concur-~ rent Resolution76, passed by the 54th Legislature, meets the neoesaary requirements as set out in Senate Bill 437. In the situationyou pose, the consenthaa already been obtained from the Legislature. It is olearly the intent of the Legislature that consent of the Legislaturebe the only requirement necessarybefore the erection of any typeof structure,and since the 36th Divisionhas 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 resolutionpassed by the 54th LegislatureIs still in force and effect and that the Board of Controlhas authorityunder that resolutionto permit the tentative selectionof a site on the Capitol ground5 by the 36th Division Associationof the Texas National Guard. The Board of Control,after the selectionof 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 legislativeconsent to constructa monument on the CapitolHonorableWm. J. Burke, Page 4 (~~-358).

grounds, the requirementset out in Artiale 861b of Vernon's Texas Penal Code has been met.

Yours very truly,
WILL WILSON AttorneyGeneral of Texas

- Llnward Shivers Assistant LS:Jl APPROVED: OPINION COMMITTEE Geo. P. Blaakburn,Chairman Jack Goodman
J. Mark McLaughlin Ralph R. Rash
REVIEWEDFOR THE ATTORNFiY GENERAL BY:
W. V. Geppert