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 aSpecial Session ofthe 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 ofwhich were not included in the present call, particularly if apoint of order is raised based on this fact?

“(2) Would different constitutional gro,unds apply

to consideration ofjoint resolutions Andyconcurrent resolutions? ” You state that one ofthe 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 ofthe Houses unless the Governor does open the Session by amending the call to include these subjects, one ofwhich is arequest tc the Congress of the United States to call aconvention 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 opensthe c,tirrexit Legislative Session (62nd

‘Legislature, Third Called Session) tq allow the Legislature to adopt certain resolutions on various subjects. Ith,as not been considered necessary inthe past to include the subject, matter of resolutions inthe call for aSpecial Session in order for their consideration and passage by either or ‘both Houses of the Legislature. ”

‘Your req.uest inquires specificall:y oftwo Sections of our Texas C;r;ri stitution. The first is Article III, Section 40which 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 15which requires approval of the Govcrnor to certain actions ofthe Legislature; it reads:

“Every order, resolut~ion or vote t.owhich 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 inthe last preceding section inthe case of abill. ” We must first consider the word “legislation” as it is used inArtlcli. 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 oflaws. 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. ofApp. 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,ofthe state constitution, by adding anew 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 aproposed 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 inthe Governor’s call for a special session in order for the Legislamre to validly act upon the resolution.

We turn now to consideration ofwhether 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:ointhe provisions ofArticle IV, Section 15of the Texas Constitution. I+.- marily, this question is resolved by Article V ofthe Constitution ofthe 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 ufthe sever3S St:ates., sha.11call a Convention for

-___- .,,.-

--.--_ proposi,ng Amendmwts. . . .” (Emphasis added. ) This provision ofthe 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 ufthe 1965 Utah State Legislature, in adoptmg a resol,&ion calling for afeder’al constitutional con-- vention, constitutes an exercise of afederal constitutional function under Article V ofthe Constitution ofthe United States

. . . (at p. 256. )

(1

. . . .

“Th,e word ‘leglslatdres’ i,nthe rd,tificatlon cl&use of Article V does not,mean t,hcwhole~legislative process of the state -- as defer rd inthe state constitution. Hawke v. Smith says it means i:he representative lawmaking body only,

‘because Eratification by a state ofa constit.utionai amendment is not an act of leglslatloo wit.hi:c the proper sense ofthz word ’

“No doubt: the wurd ‘leglsl&ures! has the same :neanrag in the applicat:ior! cl<ulse that it bears ,inthe ratification clause ofArticle V. The applicati,>n is nut ‘an act of Icgis lation’ within, the proper sense ofthe wr:rd. I’ (at, p. 250 .251. ) This opinion cites Hawke Y. Smith, 253 ‘U.S. 221 (1920~), IOA. L. R. 1504

---“.-.-.-- as having esta’blished this pri,nciple; see also Wise v. Chandler, IO8 S.W. Zd --_--._-- 1024, 1033 (Ky. Cf:. ofApp. 1937.)

No provisiti,n. ofthe Strlte ConstltJtion can contravene 3.prov~s.~or~ o: the Federal Const1t~.&iun because of rhe supremacy clause ofArllcle Vl of I:,(. IFederal 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 oft,he requirements offederal law is con:3isLcnt with the procedure for amending the State Constitution provided by ALticit. XVII, and is consistent with t:hereasoning of aprior opinion ofthis ,Jffiz;:, issued in 1917. That opinion 1held that Article IV, Section 15of 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 abill or a resolution within t,he coritemplaticm of-section 34of Article 3and 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 ofthe 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 ofthe 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, 3Dall. 378, 1L. Ed. 644. The latter case was in reference to the power Q:’

I/Opinion ofAttorney 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 inAttorney General Looney’s Report of Attorney General a,tp. 760.-765. A copy of this opinion is attached. 2/ Sec. 34 ofArt. III reads as follows: “After abill has been considered and defeated by either House of the Legislature, no bill containing the saili.: substance, shall be passed into alaw 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 ofArticle I, Section; 7, Sdbdivisior. 3ofthe Federal Constitution that is similar to Article XVII. Texas Constitution. This Attorney General Opinion was cited and followed inAt: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 ofthe Texas Constitution. We point out, however, that there is one material difference b&weea the authorization ofthe State Constitution in Article XVII and the a,uth,)rizarion +fthe National Constitution inAr;icle 1’. Article XVII ofthe St:ate Consr~ituiion lunit~s to the regular biennial session of the Legislature, the authority ofthe 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 ofthe Nat,ional Constitution, and the Legislature may validly pass dresolution 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.heLegislature acted by resolution, where the subject matter ofthe’ 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 aresolution creatillg aleg~slative investigating cormnittee at a special session although the particular subject matte :.was not int:heGovernor’s call.

Our opi&xis mthe abuve matt.ers obviuitsly mean that no valid point of order may be raised t,oquestion 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 ofjoint 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 dowith what the Constitution requires or does not require. Inthe past,~ the term nconcurrent resolution” has generally been used to apply to those resolutions to which the concurrence ofboth Houses ofthe 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 15has 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 aconstitutional amendment a concurrent resolution, nor is there anything to prevent the Legislature from ca,llmg an amendment subject to the approval of the Governor, ajoint resolution. R?- gardless ofwhat 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

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