THE AYTORNEYGENERAL 

OF’ TEXAS 

Honorable Price Daniel Opinion No. WW-729 

Governor, State of Texas 

Capitol Station Re: Constitutionality of S.B. 

Austin, Texas 17, 56th Leg., creating 

the Texas Coordinating 

Commission of State Health 

Dear Governor Daniel: & Welfare Services. 

Your request for an opinion reads as follows: 

"Attached herewith is a copy of Senate 

Bill 17, creating the Texas Coordinating 

Commission for State Health and Welfare 

Services, which I permitted to become law 

without my signature. 

"I would appreciate your official 

opinion regarding the constitutionality of 

this law, with particular reference to 

whether it would violate Article 2, Section 

1, relating to the division of powers between the Executive and Legislative departments of the State government." 

Senate Bill 17, Acts of the 56th Legislature, Regular 

Session, 1959, Chapter 352, Page 773 (codified In Vernon's 

as Article 4447c, Vernon's Civil Statutes), creates the;Texas 

Coordinating Commission for State Health and Welfare Services 

to be composed of the following persons: 

"(a) The Commissioner of Health, the 

Commissioner of Education, the Executive 

Mrector of the Board for Texas State Hospitals and Special Schools, the Chairman 

of the Texas Employment Commission, the 

Commissioner of Public Welfare, the Executive Secretary-Director of the State Commission for the Blind, and the Executive Director of the Texas Youth Council; 
Honorable Price Daniel, Page 2 (w-729) 

"(b) Three members of the Senate appointed by the Lieutenant Governor; 

"(c) Three members of the House of 

Representatives appointed by the Speaker 

of the House; 

"(d) Three citizen members appointed 

by the Governor and chosen for their recognized interest in welfare activities of the 

state, local governments, and private agenties. 

"The terms of members of 

first appointed shall be from 

their appointment to December 

appointments thereafter~ shall 

period; ending on December 31 

years. 

the Commission 

the date of 

31, 1960, and 

be for two-year 

of even-numbered 

Section 5 provides that members of the Commission 

shall serve without compensation but members of the Commission who are members of the Legislature shall be reimbursed 

for their actual and necessary expenses from the Texas Leglslative Council funds. 

It is noted that the Legislature has created a State 

agency composed of a collection of persons being of ~the Executive.Department'of Government and a colledtSonWof persons being of the Legislative Department of Government. . 

~Section lof Article II of the Constitution of Texas 

provides as follows: 

"The powers of the Government of the State 

of Texas shall be divided into three distinct 

departments, each of which shall be confided to 

a separate body of magistracy, to wit: Those 

which are Legislative to one; those which are 

Executive to another, and those which are Judicial to another, and no sperson br collection. 

of persons, being of one of these departments, 

shall exercise any power properly attached to 

lther of the others, except in the instances 

Herein expressly permitted." (Bnphasis ours). 
Honorable Price Daniel, page 3 (W'w-729) 

It is noted that Section 1 of Article II above quoted 

specifically prohibits any person or collection of persons being of one such department from exercising any power properly 

attached to either of the others. 

In Cooley's Constitutional Limitations, 8th Ed., 

p. 183, it is stated: 

"The legislative power we understand to 

be the authority, under the Constitution, to 

make laws, and to alter and repeal them. Laws 

in the sense in which the word Is here employed, 

are rules of civil conduct, or statutes, which 

the legislative will has prescribed. 'The laws 

of a State,' observes Mr. Justice Story, 'are 

more usually understood to mean the rules and 

enactments promulgated by the legislative authority thereof, or long-established local customs 

having the force of laws.' 'The difference between'the departments undoubtedly is, that the 

legislature makes, the executive executes, and 

the judiciary construes, the law.'" (Citing 

Waymand v. Southard, 10 Wheat. 46 6 L.Bd. 253, 

263, 1=‘51. 

The senators and representatives appointed to the 

Commission serve In their official capacities as members of 

the Legislature. In view of the provisions of Section 1 of 

Article II, the senators and representatives are thus prohibited from exercising any powers properly attached to the 

Executive Department of Government. The Commissioner of 

Health, the Commissioner of Education, the Chairman of the 

Texas Dnployment Commission and the Commissioner of Public 

Welfare, being members of the Executive Department of Government, are likewise prohibited from exercising any power properly attached to the Legislative Branch of Government. 

The duties of the Commission are set forth in Section 

6 as follows: 

"(1) To make a continuing study and analysis of the state's health~and welfare services 

generally and specifically, both as to cost and 

adequacy; 

"(2) To study diagnostic services, care, 

training, educational and rehabilitation programs for the handicapped; 
Honorable Price Daniel, Page 4 (Ww-729) 

"(3) To recommend long-range programs to 

be carried out by the several state departments, 

institutions, and agencies having health and 

welfare functions. 

"(4) To inspect and make recommendations 

specifically concerning state institutions and 

facilities for the mentally and physically handlcapped; 

"(5) To recommend the elimination of duplication of services between agencies or recommend 

the institution of additional services; 

"(6) To study and determine the need for 

changes in the laws as they apply to the care, 

education, training and rehabilitation of the 

handicapped; 

"(7) To determine the need for changes in 

administrative procedure and to recommend such 

changes to the agencies and departments concerned; 

"(8) To examine from year to year, the adequacy, coverage and administration of old age 

assistance and assistance programs for the blind, 

the permanently and totally disabled, and dependent 

children; and 

"(9) To make recommendations to the Leglslature concerning the matters covered in Items (1) 

through (8) for its consideration." 

It is noted that the Commission constitutes something 

more than a Committee of Legislators to study proposed legislation for the Legislature; cf. Terre11 v. King, 118 Tex. 237, 

14 S.W.2d 786 (1929) and M.K. & T. Railway Co. v. Shannon, 

100 Tex. 379, 100 S.W. 138 (1907) . Insofar as the Commission 

is required to study proposed legislation and to make recommendations to the Legislature, such Commission would be acting 

as a fact finding committee for the Legislature and would be 

performing powers properly attached to the Legislative Department. Insofar as the Commission is required to study and analyze services rendered by other agencies of the State and to 

make recommendations as to such services to thevarious depart 

metits of Government, such Commission would be performing power 

properly attached to the Executive Department of Government. 
Honorable Price Daniel, page 5 NW-729). 

364.5 

Thus, the provisions of Senate Bill 17 require a collection 

of persons being of one Department of Government to exercise 

powers properly attached to another Department of Government. 

Subdivisions (a), (b) and (c) of Section 1 of Senate 

Bill 17 are in violation of Section 1 of Article II of the 

Constitution of Texas. Such Invalidity destroys the agency 

created by Senate Bill 17 and.the remalning provisions of 

the Act are incapable of,~ being carried out. You are, therefore, advised that Senate Bill 17, Acts of the 56th kgislature, Regular Session, 1959, Chapter 352, page 773, violates 

the provisions of Section 1 of Article II of the Texas Constitution and is unconstitutional. 

SUMMARY 

Senate Bill 17, Acts of the 56th 

Legislature, Regular Session, 1959, 

Chapter 352, page 773 (codified as 

Article 4447c, Vernon's Civil Statutes), creating the Texas Coordinat; 

ing Commission for State Health and 

Welfare Services, to be composed of 

officers of the Executive Branch of 

Government and officers of the Legislative Branch of Government, violates 

the provisions of Section 1 of Article II of the Constitution of Texas, 

prohibiting any person or collection 

of persons being of one department of 

government;~.from exercising any power 

properly attached to either of the others. 

Yours very truly, 

WILL WILSON 

Attorney General of Texas 

JR:mfh John Reeves 
Honorable Price Daniel, page 6 (WW-729) 

APPROVED: 

OPINION COMMIlTEE 

Morgan Nesbltt, Chairman 

Grundy Williams 

William R. Hemphlll 

Riley Eugene Fletcher 

REVIEWEDFORTHE ATTORNEYGENERAL 

BY: W. V. Geppert