-. 

Honorable Bascom Giles, Commissioner 

General Land Office 

Austin, Texas 

Dear Sir: Opinion No. O-6827 

Rer H.C.R. 41, 49th Legislature 

of Texas, does not confer authority upon the Land Commissioner to sell the land 

described therein. 

Your request for opinion has been received and 

carefully considered by this departmerit. We quote from your 

request a8 follows: 

"I muld appreciate your advise and opinion 

regarding the sffeot of House Conourrent Resolution 

No. 41 passed by the 49th Legislature. Please inform 

mo as to whether or not this Resolution has the 

effect of law in aonfsrring the authority upon me to 

aall the land descrlbed therein." 

Said House Conaurrent Resolution reads as follows: 

"H.C.R. No. 41. 

"ROUSE CONCURRENT RESOLU'JkON 

"WHEREAS, There is a tract of land located in 

Waller County near Prairie View Normal and Industrial 

College of approximately one hundred (100) acres, 

whioh has never been used for any purposs,by the State 

of Texas: and 

%VHEREAS, Said one hundred (100) acres of land 

have been within the enclosure of a private oitizen 

and have been in constant use for over twenty-five 

(25) years; and 

"WREREAS, The said land has never brought any 

revenue whataoever to the State of Texas; and 

"WHEREW, the said land was given as a gift to 

the Governor of the State of Texas when the site of 
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Hon. Basoom Giles - Page 2, O-6027 

Prairie View Normal and Industrial College was 

purchased; and that said land does not adjoin the 

land used by Prairie View Normal and Industrial 

College; theref,ore, be it 

"RESOLVED by the House of Representatives, the 

Senate concurring, That the Commissioner of the 

General Land Office is hereby authorized to advertise 

for sale and award to the highest bidder the said one 

hundred (100) acres of land in the Solomon Smith 

Survey in Waller County, Abstract 254, described as 

follows: 

"Be inning in the center of road at a point 

South.&%Ev-w est 6.84 varas and north Oo 39' East 

5.22 varas from an iron pipe set under fenoe corner 

near bend of county road, the Northwest corner of 

this tract; thence along osnter of road North 890 

43' East 812.9 varas to the upper west line of the 

N. W. Bush survey; Thence south loo west 76n.o varas 

to an interior comer of the N..W.,Bush survey and 

the upper southeast corner of the Solomon Smith Surveyg 

thence west 688.86 varas along and with the boundary 

line of the N. W. Bush survey to a point in the center 

of North-South road; thence North Oo 39' East along 

the center of said road 747.2 varaa to the place of 

beginning, containing 100 acres; and, be it further 

"RESOLVED,That all minerals be reserved for the 

use and benefit of the Permanent Public Free School 

Fund; and, be it further 

"RESOLVED, That the consideration for this land 

shall,be paid to the Commissioner of the General Land 

Office of the State of Texas for the benefit of the 

Permanent Public Free School Fund; that a patent to 

the said land shall be issued to the suocessful bidder 

by the Governor and the Commissioner of the General 

Land Offioe to the State of Texas. Upon the payment 

of said consideration and the issuance of said patent, 

the title of the successful bidder to said land shall 

beoome absolute, subject to the reservations herein 

made. 

John Lea Smith C. H. Gilmer 

President of the Senate Speaker of the House 

"I hereby certify that H.C.R. No. 41 was adopted 

by the House on April 12, 1945,. and ,that the House 
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Hon. Basoom Giles - Page 3, O-6827 

oonourred in Senate 

on May 22, 1945, by 

Nays 0, and 2 present and not voting. 

amendment to H.C.R. No. 41 

the following voter Yeas 110, 

_ ._ 

"I hereby osrtify that H.C.R. No. 41 was 

adopted by the Senate, as amended, on May 22, 1945, 

by a viva vooe vote. 

Clarence Jones 

Chief Clerk of the House 

Noel K. Broan 

Secretary of the Senate 

APPROVED: May Z&e1945 

Coke R. Stevenson 

Governor 

"FILED IN THE OFFICE OF THE SECRETARY OF 

TEXAS, THIS 29TH DAY OF MAY, 1945, AT 9 O'CLOCK 

AND 30 MINUTES A.M. 

Artiole 3, Section 29 of our State Constitution 

provides that the enacting clause of all laws shall bet 

"Be it enacted by the Legislature of the State of Texas". 

Section 35 of this Article provides that the 

subject of a bill shall be expressed in its title. 

Claude Isbell 

Secretary of Statet' 

Said H.C.R. No. 41, supra, contains no enacting 

clause and does not express its subject in its title. 

Said H.C.R. No. 41, supra, is not a bill. Section 

30 of Article 3 of our State Constitution provides in part 

as follows: 

"No law shall be passed except by bill. . . .I1 

We call your attention to the case of the State 

of Texas v. Delesdenier, 7 Tax. 76. The facts in this case 

show that the Congress of the Republic of Texas passed a 

joint resolution purporting to authorize the President to 

sell islands owned by the Republic of Texas. Under the 

resolution patents were issued on certain lands in Galveston 

Island. The Supreme Court of Texas in 1851 held that the 

purported,patents were void and that the joint resolution 
Han, Easoom (files, Page 4, O-6827 

was not a law and was ineffsotive to authorize the sale 

of such land in Galveston Island. 

The Supreme Court of Texas in the case of City 

of San Antonio v. Micklejohn, 33 S. W. 753* 89 Tax. 79, 

citing State v. Delesdenier, 7 Tex. 76, said2 

"A resolution proper is not a law." 

In Moshiem v. Rollins, 79 S.W. (2)-672, the 

court said: 

"However, if we be mistaken in this conclusion, 

this resolution cannot be given the effect of a law. 

Our constitution (Article 3p Sec. 30) provides that 

Sno law shall be passed, axeept by bill e a 0 City of 

San Antonio vs. Miaklejohn, 89 Tax. 79, 33 9-W. 735, 

YChis resolution contained the following 

paragraph: 'Resolved by the House of Representatives, the Senate concurrin that said corporations 

use the necessary care and F?? iligence in keeping their 

right of ways clear of any'grassea, weeds or other 

plants that tend to spread, to the end that the 

increased burdens incident to the enforcement of 

this Conservation Act shall not add unnecessary oost 

to the farmer in his efforts to protect and conserve 

the potential productivity of his aoil.' 

"This resolution cannot be regarded as a law 

prohibiting tha highway department from planting 

or permitting Bermuda Grass to grow along the State 

highways," 

In Conley v0 Texas Division of United Daughters 

of the Confederaay, 164 S.W. 24, the Court saids 

"The chief distinction between a resolution 

and a law seems to be that the former is used whenever the Legislative body passing it wishes to merely 

express an opinion as to some given matter or thing, 

and is only to have a temporary effect on such 

particular thing; while by the latter it is intended 

to permanently direct and control matters applying to 

persons or things in general. See 34 Cyc. p* 1667; 

25 Cyc. po 163." 

Also, see Rumble Oil & Refining Co. v0 State, 

104 S.W. (2) 174. 

You are respectfully advised that invisw of the 

above authorities, it is the opinion of this department 
Hon. Baaoom Giles - Page 5, O-6827 

that House Concurrent Resolution No. 41 of the 49th 

Legislature of Texas is ineffective and does not authorize 

the Land Commissioner of Texas to sell the land described 

in the Resolution. For the Commissioner to be so authorized 

an Act of the Legislature would be required and a mere 

resolution is wholly insufficient. 

Very truly yours, 

ATTORNEY GENEXAL OF TEXAS 

s/ Wm. J. Fanning 

By Wm. J. Fanning 

Assistant 

WJP:BT-og 

Approved Sep. 26, 1945 

s/ Carlos C. Ashley 

First Assistant Attorney General 

Approved opinion committee 

By BWB, Chairman 

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