# HE AYTORNEY GENEWAL 0F TEXAS

The Honorable Bill Meier, Chairman Opinion No. H- 121 Subcommittee on Convention Organization Texas State Senate Re: Questions relating to Austin, Texas the general authority ofthe Constitutional Dear Senator Meier: Convention You have requested an opinion of this office on several questions relative to the powers ofthe Constitutional Convention called by Article 17, $2ofthe Texas Constitution and to the procedures which should be followed by the Convention. The Texas Constitutional ‘Convention was called by the people through the adoption ofArticle 17, $2, as an amendment to the existing Constitution of 1876. Itwas not called by an act ofthe Legislature and, therefore, legal precedents construing the powers and procedures of constitutional conventions called by legislatures with attempts by the Legislature to limit the power of the convention are not inpoint. Nor did our convention result from the institution of a new government and precedents construing the powers of so-called revolutionary conventions are not inpoint either. During the deliberations ofthe Convention and until whatever itproduces is ratified by the poeple ofthe State, the Constitution of 1876, as amended, and the statutes enacted pursuant to itwill remain the law of the land. For a general discussion of the procedures and powers of a constitutional convention, see Gaines v. O’Connell, 204 S.W. 2d 425 (Ky. App., 1947); Note, 54 Va. Law. Rev. 995 (1968); Note, 55 Iowa L,awRev. 244 (1969). Therefore, it is .our opinion that the Constitutional Convention has only those powers which are expressly granted to itby Article 17, $2, and must operate inthe framework which that provision prescribes. Specifically, Article 17, $2, ofthe present Constitution, your basic guide, provides: 1. The Convention shall be convened at noon on the second Tuesday inJanuary, 1974.

p. 584The Honorable Bill Meier, page 2 (H-121)

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6. 7. The Convention shall be composed ofthe members ofthe 63rd Legislature. The Lidutenant Governor shall preside over the Convention until a chairman is elected. The Convention shall (or may) elect other officers; adopt rules; and publish ajournal. Members ofthe Convention shall be compensated and receive expenses. The Convention may employ a staff. The Convention is automatically dissolved at 11:59 p,m. on May 31, 1974 except (a) it may dissolve earlier by vote of at least two-thirds of its members or (b) it may, by the same vote, extend its duration for not more than 60 days. The only requirement concerning the text of any proposed constitution appears in $2(g) that The Bill of Rights ofthe preseti Constitution must be retained infull. As to the method of submitting the endproduct ofthe Convention to the people, $2(e) provides:

“(e) The convention, by resolution adopted on the vote ofat least two-thirds of its members, may submit for avote ofthe qualified electors ofthis state a new constitution which may contain alternative articles or sections, or may submit revisions ofthe existing constitution which may contain alternative articles or sections. Each resolution shall specify the date of the election, the form ofthe ballots, and the method ofpublicizing the proposals to be voted on. To be adopted, each proposal must receive the favorable vote ofthe majority of those voting on the proposal. The conduct of the election, the canvassing of the votes, and the reporting of the returns shall be as provided for elections under Section 1of this article. ‘I

p. 585The Honorable Bill Meier, pa~ge3 (H-121)

Your first question is:

“Are the members ofthe Constitutional Convention scheduled to convene atnoon onthe second Tuesday in January, 1974 limited inmaking choices pertaining to Convention structure, Convention officers (type and number, method of selection, and duties and responsibility), Convention committees (number, jurisdiction, rules), and/or ~Convention schedule, by any controlling precedent other than the resolution granting authority for the holding ofthe Convention adopted by popular vote on November 7, 1972, currently appearing as Article 17, Section 2, ofthe Texas Constitution, or the applicable provisions of the Constitution ofthe United States ofAmerica? ” As to the first three areas you mention, “Convention structure”, “Convention officers” and “Convention committees”, the Convention will be limited in only afew respects. Members ofthe Convention must be members ofthe 63rd Legislature. There must be a “chairman”
. The Lieutenant Governor must preside until the chairman is elected. Other than these, it is our opinion that the Convention may organize itself as it chooses. Itmay determine for itself what other officers andwhat committees itwill have and may assign to them such responsibilities as it deems advisable. Itmay prescribe its own rules including those ,for the operation of its committees. The “Convention schedule”, on the other hand, appears somewhat more restricted by Subsections (d) and (f) requiring the Convention to convene at noon on the second Tuesday inJanuary, 1974, and to be automatically dissolved at 11:59 p.m. on May 31, 1974, unless “extended for aperiod not to exceed 60 days by resolution.

. , . I’ Within that framework, the Convention is free to schedule its sessions and set its own deadlines. Your second question is as follows:

“Specifically as to Convention officers - - is the Convention limited in choosing a Chairman ofthe Convention from its membership, or may the Convention choose to elect aperson as Chairman who is not a member ofthe Convention?”

p. 586The Honorable Bill Meier, page 4 (H-121)

Article 17, $2(c), provides that “The members ofthe 63rd Legislature shall be convened as a constitutional convention
. . . . A person elected to fill avacancy in the 63rd Legislature before dissolution of the convention becomes amember of the convention on taking office as amember ofthe Legislature. ” Itis quite clear from this language that only members ofthe Legislature can be members of, or delegates to, the Convention. That .fact alone should rule out the election as chairman ofaperson other than a legislator. Unless the basic ordinance constituting the body prescribes otherwise, it is the usual and accepted custom and practice in our society inthe selection ofthe permanent presiding officers of, organized groups to require by common consent and understanding, that the person selected be a member ofthe organization. Itshould be presumed that the Legislature, in drafting Article 17, $2, and the people inadopting it, intended, inthe absence of express provision to the contrary, that this usual and accepted practice prevail inthe election of apermanent chairman ofthe convention. The amendment provisions themselves, when carefully analyzed, lead to the same inescapable conclusion that the people did not intend to authorize election ofanon-legislator as chairman. The amendment authorizes the Convention to “elect other officers it deems necessary” without expressly providing that they be members ofthe Legislature. Itis unreasonable to suppose that while carefully and strictly limiting m’embership inthe Convention to legislators, the people, nevertheless, intended to authorize the placing of control ofthe Convention ‘in non-legislator officers. Paragraph (d) of the amendment provides that “Members ofthe convention shall receive compensation, mileage, per diem” and that the Convention may “appropriate money from the general revenue fund of the state treasury” to’provide for the expenses of its members and the employment ofa staff.” Since non-legislators could not be “members ofthe convention”, and the chairmen and other officers would not be members of a “staff”, inthe generally accepted meaning ofthat term, there is no authority in the amendment for compensating non-legislator officers and no authority inthe Convention to appropriate money to defray their expenses. Itwould be unreasonable to assume, that, in adopting the amendment, the people intended that all members ofthe Convention and its staff should receive adequate compensation and that expenses ofmembers should be reimbursed,

p. 587The Honorable Bill Meier, page 5 (H-121)

but that officers of the Convention, who must bear some ofthe heaviest burdens inthis important work, would be ineligible to receive either compensation or reimbursement. We therefore answer your second question that, in our opinion, the Convention is limited to choosing its Chairman from among its members. Your third question is prefaced:

“Article 17, Section 2, subsection [d] ofthe Texas Constitution provides that the members of the Constitutional Convention shall receive compensation as determined by a five-member committee to be composed ofthe Governor, Lieutenant Governor, Speaker of the House, Chief Justice ofthe Supreme Court, and Chief Justice ofthe Court of Criminal Appeals. ” You ask:

“May amember ofthis five-member committee likewise serve as Convention Chairman without conflicting in duties specifically required by this Resolution? ” We see no prohibited conflict. The potential conflict of interest is no greater inthe situation posed by your question that it is inthe situation created by.other language inArticle 17, $2(d), which specifies that the Convention may provide for the reimbursement of expenses of its members and may appropriate money for that purpose. Ineither event, it is the Constitution itself that imposes the double responsibilities, andwe cannot state that to exercise the rights ofboth positions would present an unconstitutional conflict. We therefore answer your third question that, in our opinion, a member ofthe five-man committee designated to determine the compensation of Convention members, who also is amember ofthe Convention, may serve as Convention Chairman without an unconstitutional conflict in duties.

p. 588The Honorable Bill Meier. page 6 (H-121)

SUMMARY 1. The Constitutional Convention initiated by Article 17, §2, ofthe Texas Constitution will be free, within the framework of that provision and consistent with the Constitutions of Texas and the United States, to structure itself, to determine and select its officers and committees, to determine the duties, authority and powers of its selected officers and committees, and to schedule its work as it sees fit. 2. The Chairman ofthe Convention must be chosen from the membership ofthe Convention. 3. A member ofthe five-man committee charged with determining the compensation, mileage allowance and per diem tobe received by members ofthe Convention who also is amember ofthe Convention is eligible to serve as Convention Chairman.

Attorney General ofTexas

DAVID M. KENDALL, Chairman Opinion Committee

p. 589