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 

of the Constitutional 

Dear Senator Meier: Convention 

You have requested an opinion of this office on several questions 

relative to the powers of the Constitutional Convention called by Article 

17, $ 2 of the 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 of Article 17, $ 2, as an amendment to the existing Constitution 

of 1876. It was not called by an act of the 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 in point. Nor did our convention result from the 

institution of a new government and precedents construing the powers of 

so-called revolutionary conventions are not in point either. During the 

deliberations of the Convention and until whatever it produces is ratified 

by the poeple of the State, the Constitution of 1876, as amended, and the 

statutes enacted pursuant to it will 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,aw Rev. 244 (1969). 

Therefore, it is .our opinion that the Constitutional Convention has only 

those powers which are expressly granted to it by Article 17, $ 2, and must 

operate in the framework which that provision prescribes. 

Specifically, Article 17, $ 2, of the present Constitution, your basic guide, 

provides: 

1. The Convention shall be convened at noon on the 

second Tuesday in January, 1974. 

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

2. 

3. 

4. 

5. 

6. 

7. 

The Convention shall be composed of the members 

of the 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 a journal. 

Members of the 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 of the preseti Constitution must 

be retained in full. As to the method of submitting the end product of the 

Convention to the people, $ 2(e) provides: 

“(e) The convention, by resolution adopted on 

the vote of at least two-thirds of its members, may 

submit for a vote of the qualified electors of this 

state a new constitution which may contain alternative 

articles or sections, or may submit revisions of the 

existing constitution which may contain alternative 

articles or sections. Each resolution shall specify 

the date of the election, the form of the ballots, 

and the method of publicizing the proposals to be 

voted on. To be adopted, each proposal must receive 

the favorable vote of the 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 1 of 

this article. ‘I 

p. 585 
The Honorable Bill Meier, pa~ge 3 (H-121) 

Your first question is: 

“Are the members of the Constitutional Convention 

scheduled to convene at noon on the second Tuesday in 

January, 1974 limited in making 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 

of the Convention adopted by popular vote on November 7, 

1972, currently appearing as Article 17, Section 2, of the 

Texas Constitution, or the applicable provisions of the 

Constitution of the United States of America? ” 

As to the first three areas you mention, “Convention structure”, “Convention officers” and “Convention committees”, the Convention will be limited 

in only a few respects. Members of the Convention must be members of the 

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. It may determine for itself what other officers and what committees it will have and may 

assign to them such responsibilities as it deems advisable. It may 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 in January, 1974, and to be automatically dissolved at 11:59 p. m. on May 31, 1974, unless “extended for a period 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 of the Convention from its membership, or may the Convention 

choose to elect a person as Chairman who is not a 

member of the Convention?” 

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

Article 17, $ 2(c), provides that “The members of the 63rd Legislature 

shall be convened as a constitutional convention . . . . A person elected to 

fill a vacancy in the 63rd Legislature before dissolution of the convention 

becomes a member of the convention on taking office as a member of the 

Legislature. ” 

It is quite clear from this language that only members of the Legislature can be members of, or delegates to, the Convention. That .fact 

alone should rule out the election as chairman of a person 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 in the 

selection of the permanent presiding officers of, organized groups to require 

by common consent and understanding, that the person selected be a member 

of the organization. It should be presumed that the Legislature, in drafting 

Article 17, $ 2, and the people in adopting it, intended, in the absence of 

express provision to the contrary, that this usual and accepted practice 

prevail in the election of a permanent chairman of the convention. 

The amendment provisions themselves, when carefully analyzed, lead 

to the same inescapable conclusion that the people did not intend to authorize 

election of a non-legislator as chairman. The amendment authorizes the 

Convention to “elect other officers it deems necessary” without expressly 

providing that they be members of the Legislature. It is unreasonable to 

suppose that while carefully and strictly limiting m’embership in the Convention to legislators, the people, nevertheless, intended to authorize the 

placing of control of the Convention ‘in non-legislator officers. 

Paragraph (d) of the amendment provides that “Members of the 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 of a staff.” Since non-legislators could not be “members of the 

convention”, and the chairmen and other officers would not be members of 

a “staff”, in the generally accepted meaning of that term, there is no 

authority in the amendment for compensating non-legislator officers and 

no authority in the Convention to appropriate money to defray their expenses. 

It would be unreasonable to assume, that, in adopting the amendment, the 

people intended that all members of the Convention and its staff should receive 

adequate compensation and that expenses of members should be reimbursed, 

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

but that officers of the Convention, who must bear some of the heaviest 

burdens in this 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] of the Texas 

Constitution provides that the members of the Constitutional 

Convention shall receive compensation as determined by a 

five-member committee to be composed of the Governor, 

Lieutenant Governor, Speaker of the House, Chief Justice 

of the Supreme Court, and Chief Justice of the Court of 

Criminal Appeals. ” 

You ask: 

“May a member of this 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 in the situation posed by your question that it is in the situation 

created by.other language in Article 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. In either event, it is the 

Constitution itself that imposes the double responsibilities, and we cannot 

state that to exercise the rights of both positions would present an unconstitutional conflict. 

We therefore answer your third question that, in our opinion, a 

member of the five-man committee designated to determine the compensation of Convention members, who also is a member of the Convention, 

may serve as Convention Chairman without an unconstitutional conflict in 

duties. 

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

SUMMARY 

1. The Constitutional Convention initiated by 

Article 17, § 2, of the 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 of the Convention must be chosen 

from the membership of the Convention. 

3. A member of the five-man committee charged 

with determining the compensation, mileage allowance 

and per diem to be received by members of the Convention who also is a member of the Convention is eligible 

to serve as Convention Chairman. 

Attorney General of Texas 

DAVID M. KENDALL, Chairman 

Opinion Committee 

p. 589