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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:

"Imuld appreciate your advise and opinion regarding the sffeot ofHouse Conourrent Resolution No. 41passed by the 49th Legislature. Please inform mo as towhether 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 isa 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 ofTexas: and %VHEREAS, Said onehundred (100) acres of land have beenwithin the enclosure of a private oitizen andhave been in constant use for over twenty-five (25)years; and "WREREAS, The said landhas never brought any revenue whataoever to the State ofTexas; and "WHEREW, the said land was given asa gift to the Governor of the State ofTexas when the site of.-

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Prairie View Normal and Industrial College was purchased; and that said land does not adjoin the land used by Prairie ViewNormal and Industrial College; theref,ore,be it

"RESOLVED by the House ofRepresentatives, the Senate concurring, That the Commissioner of the General Land Office ishereby authorized toadvertise for sale and award to thehighest bidder the said one hundred (100) acres of land in the Solomon Smith Survey inWaller County, Abstract 254, described as follows: "Be inning inthe center of road at apoint South.&%Ev-w est 6.84 varas andnorth Oo 39' East 5.22 varas from an ironpipe set under fenoe corner near bend of county road, theNorthwest 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 loowest 76n.o varas toan 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 theN.W. Bush survey to a point in the center ofNorth-South road; thence North Oo 39'East along the center of said road 747.2 varaa to theplace of beginning, containing 100 acres; and, be it further "RESOLVED,That allminerals be reserved for the use andbenefit 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 theGeneral Land Office of the State of Texas for the benefit of the Permanent Public Free School Fund; that apatent 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 ofTexas. Upon thepayment 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 ofthe House "Ihereby certify that H.C.R. No. 41 was adopted by the House onApril 12, 1945,.and ,thattheHouse--

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oonourred in Senate onMay 22, 1945, by Nays 0, and 2present andnot voting. amendment toH.C.R. No. 41 the following voter Yeas 110,

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"Ihereby osrtify thatH.C.R. No. 41 was adopted by the Senate, asamended, onMay 22,1945, by aviva 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 INTHE OFFICE OF THE SECRETARY OF TEXAS, THIS 29TH DAY OFMAY, 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 abill shallbe expressed in its title. Claude Isbell Secretary of Statet'

SaidH.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, isnot a bill. Section 30 ofArticle 3 of our State Constitution provides inpart as follows:

"Nolaw shall be passed except by bill.
. . .I1 We call your attention to the case of the State ofTexas v. Delesdenier, 7 Tax. 76. The facts in this case show that the Congress of theRepublic ofTexas 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 inGalveston Island. The Supreme Court of Texas in 1851 held that the purported,patents were void and that the joint resolutionHan, Easoom (files,Page 4, O-6827

was not a law andwas ineffsotive toauthorize the sale of such land inGalveston Island.

The Supreme Court of Texas in thecase of City of SanAntonio v.Micklejohn, 33 S.W. 753* 89 Tax. 79, citing State v. Delesdenier, 7 Tex. 76, said2

"A resolution proper isnot a law." InMoshiem v. Rollins, 79 S.W. (2)-672, the court said:

"However, if webemistaken in this conclusion, this resolution cannot be given the effect of a law. Our constitution (Article 3p Sec. 30) provides that Snolaw shall be passed, axeept bybill e a 0City of SanAntonio vs. Miaklejohn, 89 Tax. 79, 33 9-W. 735, YChis resolution contained the following paragraph: 'Resolved by theHouse of Representatives, the Senate concurrin that said corporations use the necessary care and F?? iligence inkeeping their right of ways clear of any'grassea, weeds or other plants that tend to spread, to theend that the increased burdens incident to the enforcement of this Conservation Act shall not add unnecessary oost to the farmer inhis efforts toprotect and conserve the potential productivity ofhis aoil.' "This resolution cannot be regarded as a law prohibiting thahighway department from planting or permitting Bermuda Grass togrow 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 theformer isused whenever the Legislative body passing itwishes tomerely express an opinion as to some given matter or thing, and is only tohave a temporary effect on such particular thing;while by the latter it is intended topermanently direct and control matters applying to persons or things ingeneral. See 34 Cyc. p* 1667; 25 Cyc. po 163." Also, seeRumble Oil & Refining Co. v0 State, 104 S.W. (2) 174. You are respectfully advised that invisw of the above authorities, it isthe opinion of this departmentHon. Baaoom Giles - Page 5, O-6827

thatHouse Concurrent Resolution No. 41 of the 49th Legislature ofTexas is ineffective and does not authorize theLand Commissioner of Texas to sell the land described in the Resolution. For the Commissioner to be so authorized anAct of the Legislature would be required and amere resolution iswholly 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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