July 6,~ 1972 

Honorable Preston Smith 

Governor of Texas 

State Capitol Building 

Austin, Texas 78711 

Dear Governor Smith: 

Opinion No. M-1167 

Re: Necessity for subject matter of 

resolutions to be included in the 

calI of a Special Session of the 

Legislature in order for their 

consideration and passage. 

You ask our opinion in answer to the f,ollowing questions: 

“( 1) Does the Texas Constitution (Article III, 

Section 40 and Article IV, Section 15) require the Governor to enlarge the call for 

the Third Called Session, 62nd Legislature, 

to enable the Legislature to consider resolutions, the subject matter of which were 

not included in the present call, particularly if a point of order is raised based on this 

fact? 

“(2) Would different constitutional gro,unds apply 

to consideration of joint resolutions Andy concurrent resolutions? ” 

You state that one of the reasons for your inquiry is that, 

“The question, however, has recently risen as 

to whethe; or not the Legislature can consider certain 

resolutions pending before each of the Houses unless 

the Governor does open the Session by amending the call 

to include these subjects, one of which is a request tc the 

Congress of the United States to call a convention to amend 

the United States Constitution to prohibit forced busing to 

achieve integration of our schools. I’ 

-5688- 
Honorable Preston Smit~h, page 2 (M,-1167) 

You fwther stat:e, 

“There have been numerous requests to this 

office to opens the c,tirrexit Legislative Session (62nd 

‘Legislature, Third Called Session) tq allow the Legislature to adopt certain resolutions on various subjects. 

It h,as not been considered necessary in the past to include the subject, matter of resolutions in the call for 

a Special Session in order for their consideration and 

passage by either or ‘both Houses of the Legislature. ” 

‘Your req.uest inquires specificall:y of two Sections of our Texas C;r;ri 

stitution. The first is Article III, Section 40 which restricts legislation ai 

a special ses~sion:of the legislature. It reads: 

“When the Legislature shall be convened in 

special ses,sion, there shall be no legislation upon 

subjects other than those designated in the proclamation of the Governor calling such s.ession, or presented 

to them by the Governor; and no such session shall be 

of longer durat:ion than thirt:y days. ” (Emphasis added. ) 

The second is Article IV, Section 15 which requires approval of the Govcrnor to certain actions of the Legislature; it reads: 

“Every order, resolut~ion or vote t.o which the 

concurrence of both Ho,uses of the Legislature may be 

necessary, except on questions of adjournment, shall 

be presented to the Governor, and, before it shall take 

effect, shall be approved by him; or being disapproved,~ 

shall be passed by both Ho-uses,” and all the rules, proVisions and limit,ations shall apply thereto as prescribed 

in the last preceding section in the case of a bill. ” 

We must first consider the word “legislation” as it is used in Artlcli. 

III, Section 40. In Ex parte Walters, Ex parte Gray, 144 S. W. 531, 533. iii? ._I 

574 (Tex. Crim. 1912) the court: held that the therm “legislation” 2:~ used ir, 

this Section 40 comprehends u:nly the enactment: of new laws or the an‘endment or repeal of existing ones. 

.-5689- 
Honorable Preston Smith, page 3 (M-1167) 

The term “legislation ” in constitutional provisions, so far as 

our research shows, is uniformly used with, reference only to the enactment, amendment or repeal of laws. Commonwealth v. Griest, 46 

Atl. 505 (.Pa. Sup. 1900); State v. Hyde, 22 N. E. 644, 646 (Ind. Sup. 18&9); 

State v. Skeggs, 46 So. 268, 271 (Ala.Sup. 1908); and Hatcher v. Meredith, 173 S. W. 2d 665 (Ky. Ct. of App. 1943). 

The case of Sweeny v; King, 137 A. 178 (Pa. Sup. 1927) is directly 

in point. We quote from that decision: 

“At its special session held in 1926, the Legislature adopted a resolution proposing an amendment to 

article 15, of the state constitution, by adding a new set - 

tion to it, though the subject-matter, thereof was not referred to in the Governor’s proclamation calling the session. . . . Plaintiff’s only contention is that a resolution 

for a proposed amendment to the Constitution cannot be 

adopted at a special session of the Legislature, unless the 

subject-matter thereof is included in the Governor’s proclamation. The court below did not agree with this, and 

dismissed the bill. We are in a,ccord with that conclusion. ” 

We are of the opinion that a resolution is not legislation; therefore, 

Article III, Section 40 of the Texas Constitution does not prohibit the Legislature from passing resolutions.’ The subject of a resolution need not be 

set out in the Governor’s call for a special session in order for the Legislamre to validly act upon the resolution. 

We turn now to consideration of whether or not Article IV, Section 15 

of the Texas Constitution requires that a resolution applying to Congress to 

call a convention to amend the United States Constitution is required to be 

presented to the Governor for his approval. In our opinion a resolution. of 

the Texas Legislature making such an application to the Congress is not r‘cquired to be submitted to the.Governor for his approval and does not <alI wi:oin the provisions of Article IV, Section 15 of the Texas Constitution. I+.- 

marily, this question is resolved by Article V of the Constitution of the Unii<.:d 

States. In its relevant portion, it reads: 

-5690- 
Honora~ble Preston~S,m,ith. page 4 (M-1167) 

“The Gngress, whenever two thirds of both Houses 

shall deem ,it ‘necessar), shall pwpose Amendments to t111s 

Constitution, o*, on the Applications of the Legislatures of 

-_- 

two thirds uf the sever3S St:ates., sha.11 call a Convention for 

-___- .,,.- - -.--_ 

proposi,ng Amendmwts. . . . ” (Emphasis added. ) 

This provision of the IYa,rional Cczstitution provides for application of the 

Legislat:izre and the Legisldt~~~re only. The most recent court decision on 

this point which we fiend is PetuskeEv. Rampton: 307 F. Supp. 235, (D. C1., 

Utah., 1969),~ rev’d. 0.1, ,,r:her gro,nds 231 F. 2d 378, cert. denied. 401 IJ. S. 

913. We q’uote frum that case: 

“3. The Actwn uf the 1965 Utah State Legislature, in 

adoptmg a resol,&ion calling for a feder’al constitutional con-- 

vention, constitutes an exercise of a federal constitutional 

function under Article V of the Constitution of the United States 

. . . (at p. 256. ) 

(1 

. . . . 

“Th,e word ‘leglslatdres’ i,n the rd,tificatlon cl&use of 

Article V does not, mean t,hc whole~legislative process of 

the state -- as defer rd in the state constitution. Hawke v. 

Smith says it means i:he representative lawmaking body only, 

‘because Eratification by a state of a constit.utionai amendment 

is not an act of leglslatloo wit.hi:c the proper sense of thz word ’ 

“No doubt: the wurd ‘leglsl&ures! has the same :neanrag in the applicat:ior! cl<ulse that it bears ,in the ratification 

clause of Article V. The applicati,>n is nut ‘an act of Icgis 

lation’ within, the proper sense of the wr:rd. I’ (at, p. 250 .251. ) 

This opinion cites Hawke Y. Smith, 253 ‘U.S. 221 (1920~), IO A. L. R. 1504 

---“.-.-.-- 

as having esta’blished this pri,nciple; see also Wise v. Chandler, IO8 S. W. Zd 

--_--._-- 

1024, 1033 (Ky. Cf:. of App. 1937.) 

No provisiti,n. of the Strlte ConstltJtion can contravene 3. prov~s.~or~ o: 

the Federal Const1t~.&iun because of rhe supremacy clause of Arllcle Vl of I:,(. 

I Federal Cunstit~utiw~. The Federal CvgslIt,titi<ir. is the supreme law of the i:jl:d 

-5691,. 
Honorable Prest~on Smith, page 5 (M-l 167) 

The above view of t,he requirements of federal law is con:3isLcnt 

with the procedure for amending the State Constitution provided by AL ticit. 

XVII, and is consistent with t:he reasoning of a prior opinion of this ,Jffiz;:, 

issued in 1917. That opinion 1 held that Article IV, Section 15 of our ‘I’Y.~L: 

Constitution relates only ‘I. . . to matters of ordinary legislation ” 

(Emphasis added) and, 

1, 

. . . that a resolution proposing an amendment to 

,-, 

the Constitution /of Texas / is not a bill or a resolution 

within t,he coritemplaticm of-section 34 of Article 3 and is not 

-- 

to be controlled by the ordinary legislative procedure. ” 

(Emphasis added. ) (at p. 763,-764) 2 

The 1917 opinion was issued in answer to the inquiry, 

(1 

. . . whether or not Article XVII of the Constitution. 

which authorizes the Legislature to propose amendments to 

the Constitution to be voted on by the people, is related to or 

is limited by any other provision of the Constitutiou in regal d 

to legislative procedure. ” (at p. 760. ) 

The 1917 opinion was based upon the case of Commonwealth v. Griest, 46 

A. 505 (Pa. Sup. 1900) (supra), and the case of Hollingsworth v. Virgins, 

3 Dall. 378, 1 L. Ed. 644. The latter case was in reference to the power Q:’ 

I/Opinion of Attorney General B.,F. Looney, to Hon. I;‘. 0. Fuller, Speakei 

of the House, Fe’bruary 13, 1917, Op. No. .1705-BR 48~, p. 480, contained 

in Attorney General Looney’s Report of Attorney General a,t p. 760.-765. A 

copy of this opinion is attached. 

2/ Sec. 34 of Art. III reads as follows: “After a bill has been considered 

and defeated by either House of the Legislature, no bill containing the saili.: 

substance, shall be passed into a law during the~eame session. After ri ?:Lsolution has been acted on and defeated, no resolut:ion containing the same 

substance, shall be considered at the same session. ” 

-5692.. 
Honorable Preston Smith, ~page 6 (M-1167) 

the President PDF the,?Init:ed St.&es under the language of Article I, Section; 

7, Sdbdivisior. 3 of the Federal Constitution that is similar to Article XVII. 

Texas Constitution. This Attorney General Opinion was cited and followed 

in At:torne)r General Opcnion No. 2761, d&ted March 9. 1929, to Hurl. Fred 

H. Minor, Speaker Pro Tern of the Texas House of Representatives. 

This former opinion of this office issued by Attorney General Looney 

correctly advises that a resolutioa propusing an amendment to the Constilutior. 

of Texas is not, subject to the approval of th’e Governor under Article IV, S’ection 15 of the Texas Constitution. We point out, however, that there is one 

material difference b&weea the authorization of the State Constitution in 

Article XVII and the a,uth,)rizarion +f the National Constitution in Ar;icle 1’. 

Article XVII of the St:ate Consr~ituiion lunit~s to the regular biennial session 

of the Legislature, the authority of the Legislature to propose amendments 

by resolution. Hence,, a resolution in special session proposing an arnendment to the State Constitution would not be proper. There is no such lirnita- 

,tion in Article V of the Nat,ional Constitution, and the Legislature may 

validly pass d resolution applyiag to Congress to call a convention for amending the National Const:it&o:n even t,hough it is sitting in special s&sslon. 

An interest,ing case i?, which t.he Legislature acted by resolution, 

where the subject matter of the’ resolution certainly was not in the call of 

the special session, was the impeachment of Governor Ferguson. See Fer- 

- 

guson v. Maddox, 114 Tex. 85, 263 S. W. 888 (1924. ) In this case the Supreme 

Court sustained the power of the Legislature to bring, prosecute and try impeachment proceedings against Governor Ferguson at its special session. See 

also the case of Ex parte Wolters, Ex pa~rte Gray, 144 S. W, 531 (Tex. Crim 

l9l2), wherein the court upheld the validity of a resolution creatillg a leg~slative investigating cormnittee at a special session although the particular 

subject matte :. was not in t:he Governor’s call. 

Our opi&xis m the abuve matt.ers obviuitsly mean that no valid 

point of order may be raised t,o question the act of the Legislatlire in passing a resolution request.ing t:he Congress tti ca,ll a convention for the purpose 

of amending the National Co,nstit:ution. 

Your second question a~sks whether different constitutIona grounds 

apply to consideration of joint resolut,iuns ar!d concurrent resolutions. The 

..5693- 
Honorable Preston Smith, page 7 (M-1167) 

terms “concurrent resolution” and “joint resolution” do not appear in the 

constitutional provisions under. discussion. These terms of nomenclature 

have nothing to do with what the Constitution requires or does not require. 

In the past,~ the term nconcurrent resolution” has generally been used to 

apply to those resolutions to which the concurrence of both Houses of the 

Legislature is necessary, and to which Article IV, Section 15, providing 

for approval by the Governor, is applicable. The term “joint resolution” 

has in the past been applied solely to those resolutions proposing Constitutional amendments. These latter resolutions are not subject to the approval of the ,Governor. As to them, Article IV, Section 15 has no application. 

Insofar as the terms “concurrent res,olution” and “joint resolution” 

provide a ready means of distinguishing between the two types of legisla-. 

tive actions, they z+re useful. Insofar as they might be thought to indicate 

some different manner of action by the Legislature, they are meangingless. 

There is nothing in the Texas Constitution to prevent the Legislature from 

calling a resolution proposing a constitutional amendment a concurrent resolution, nor is there anything to prevent the Legislature from ca,llmg an 

amendment subject to the approval of the Governor, a joint resolution. R?- 

gardless of what a resolution is called, if its purpose is to propose a constitutional amendment, and it is passed by both Houses of the Legislature, 

it is not subject to the Governor’s approval. 

SUMMARY 

The Texas Legislatur~e, sitting in special session. 

may request the Congress of the United States to call a c‘ox>- 

vention to amend the United States Constitution even though 

this subject was not included in the proclamation of the Go\ ei - 

nor calling the session, and provided the resolution passes 

both Houses of the Legisiature,~ no valid objection may be 

made to it. 

The terms “concurrent resolution” and “joint rtso 

lution” are matters of nomenclature only and it is necessar.y 

to look at the content of the resolution itself to determine 

what constitutional provisions are applicable. 

Yours very truly, 

Attorne#General of Texas 

-,5694- 
Honorable Preston Smit.h, page 8 (M,.1167) 

APPROb’ED: 

OPINlON COMMIT TEE 

Kerns Taylor, Chairman 

W. E. Allen, Co-Chairman 

Houghton Brownlee 

J. C. Davis 

Milton Richardson 

John Reeves 

SAMiJEL D. MQANIEL 

Staff Legal Assistant 

ALFRED WALKER 

Executive Assistant 

NOLA WHITE 

First Assistant 

-5695-