### THE 

## AYTORNEYGENERAL
OF’ TEXAS

Honorable Price Daniel Opinion No. WW-729 Governor, State of Texas Capitol Station Re: Constitutionalityof 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:
"Attachedherewith 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.

"Iwould appreciateyour official opinion regarding the constitutionalityof 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 followingpersons:

"(a) The Commissionerof 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 PublicWelfare, the Executive Secretary-Directorof the State Commission for the Blind, and the Executive Director of the Texas Youth Council;Honorable Price Daniel, Page 2 (w-729)

"(b) Threemembers of the Senate appointed by the LieutenantGovernor; "(c)Three members of the House of Representatives appointed by the Speaker of the House; "(d) Three citizenmembers 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 thatmembers of the Commission shall servewithout compensationbut members of the Commissionwho 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 Legislaturehas created a State agency composed of a collection of persons being of ~theExecutive.Department'ofGovernment and a colledtSonWofpersons being of the Legislative Department of Government.

. ~Sectionlof Article II of the Constitution of Texas provides as follows:

"Thepowers of the Government of the State of Texas shall be divided into three distinct departments, each of which shallbe 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 spersonbr 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 expresslypermitted." (Bnphasisours).Honorable Price Daniel,page 3 (W'w-729)

It is noted that Section 1 of Article II above quoted specificallyprohibitsany person or collection of persons being of one such department from exercising any power properly attached to either of the others.

In Cooley's ConstitutionalLimitations,8th Ed., p. 183, it is stated:

"The legislativepower 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 legislativewill has prescribed. 'Thelaws of a State,' observesMr. Justice Story, 'are more usually understood to mean the rules and enactmentspromulgatedby the legislativeauthority thereof, or long-establishedlocal customs having the force of laws.' 'Thedifferencebetween'thedepartmentsundoubtedly is, that the legislaturemakes, the executive executes, and the judiciary construes, the law.'" (Citing Waymand v. Southard, 10 Wheat. 46 6 L.Bd. 253, 263, 1=‘51.
The senatorsand representativesappointed to the Commission serve In their official capacitiesas members of the Legislature. In view of the provisions of Section 1 of Article II, the senatorsand representativesare thus prohibited from exercisingany powers properly attached to the Executive Department of Government. The Commissionerof Health, the Commissionerof Education, the Chairman of the Texas Dnployment Commissionand the Commissionerof Public Welfare, being members of the Executive Department of Government, are likewiseprohibited from exercising any power properly attached to the LegislativeBranch of Government.

The duties of the Commissionare set forth in Section 6 as follows:
"(1) Tomake a continuing study and analysis of the state'shealth~andwelfare services generally and specifically,both as to cost and adequacy;
"(2) To study diagnostic services, care, training, educationaland rehabilitationprograms for the handicapped;Honorable Price Daniel, Page 4 (Ww-729)

"(3) To recommend long-rangeprograms to be carried out by the several state departments, institutions,and agencieshaving health and welfare functions.
"(4) To inspect and make recommendations specificallyconcerning state institutionsand facilities for the mentally and physicallyhandlcapped;
"(5) To recommend the elimination of duplication of servicesbetween 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 rehabilitationof the handicapped; "(7) To determine the need for changes in administrativeprocedure 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 assistanceprograms for the blind, the permanently and totally disabled,and dependent children; and
"(9) To make recommendationsto 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 studyproposed legislation for the Legislature; cf. Terre11v. King, 118Tex. 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 legislationand to make recommendations to the Legislature, such Commissionwould be acting as a fact finding committee for the Legislatureand would be performingpowers properly attached to the LegislativeDepartment. Insofar as the Commission is required to study and analyze servicesrendered by other agencies of the State and to make recommendationsas to such services to thevarious depart metitsof Government, such Commissionwould be performingpower properly attached to the Executive Department of Government.Honorable PriceDaniel, page 5 NW-729). 

### 364.5

Thus, the provisions of SenateBill 17 require a collection of personsbeing 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 Constitutionof Texas. Such Invalidity destroys the agency createdby SenateBill 17 and.the remalningprovisions 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 (codifiedas 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 Governmentand 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 ReevesHonorable Price Daniel, page 

## 6 (WW-729)

APPROVED:

OPINION COMMIlTEE Morgan Nesbltt, Chairman GrundyWilliams
William R. Hemphlll Riley Eugene Fletcher

REVIEWEDFORTHE ATTORNEYGENERAL BY: W. V. Geppert