Untitled Texas Attorney General Opinion

@ffice of tip Elttornep @eneral
Sdate of EexaG
DAN MORALES
ATTORNEY
GWERAL December 21,199s

The Honorable Jerry Patterson Opinion No. DM-495
Chair, Committee on Veteran Affairs &
Military Installations Re: Whether the legislature may authorize a state
Texas State Senate agency to construe Texas Constitution article XVI,
P.O. Box 12068 section 50, the home equity amendment (RQ-1167)
Austin, Texas 7871 l-2068

Dear Senator Patterson:

You ask whether the legislature, either by statute or by constitutional amendment approved
by the voters, may authorize a state agency to construe the provisions of article XVI, section 50 of
the Texas Constitution. The most recent amendment to article XVI, section 50 was approved by
Texas voters in a general election held on November 4, 1997. The amendment added types of debt
that may be enforced by foreclosure against a homestead, including an extension of credit secured
by the borrower’s equity in the homestead, popularly known as a “home equity loan.” As your letter
points out, the amendment has given rise to numerous questions regarding its construction. Section
50 does not authorize the legislature to enact general implementing legislation or empower a state
agency to adopt interpretive rules. Consequently, the state is faced with an environment of
uncertainty as to how lenders, builders, insurers, borrowers, and others may properly negotiate
enforceable home equity loans. You tell us that the legislature seeks to appoint a state agency to
resolve these complicated questions as they arise.

We cannot tell you in advance whether any particular legislative action you might take will
be valid, but we can advise you of the basic legal principles governing your question.

We begin with your proposal to grant interpretive authority to a state agency by statute.
Article III, section 1 of the Texas Constitution vests legislative power in the Texas Legislature.’
This means, as a general rule, that the legislature has the power to enact any law that is not in
violation of state or federal constitutional provisions.2 And, where the legislature has established
a sufficient standard of guidance on a particular policy of law, it may delegate power to executive

‘Tex. Const. art. III, 5 1 (“The Legislative power of this State shall be vested in a Senate and House of
Representatives, which together shall be styled ‘The Legislature of the State of Texas.“‘).

lDe Sham v. Webb, 113 S.W.Zd 519, 523 (Tex. 1938); Brown v. City ofGalveston, 75 S.W. 488,493 (Tex.
1903).
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agencies to prescribe and administer the details of the law.’ Any limitations on the legislature’s
power must be shown by express words in the constitution or by necessary implication.4 When
reviewing the legislature’s power to enact a particular statute, courts apply a strong presumption that
the statute is valid, and a court will not declare a statute invalid unless it is clearly unconstitutional.s

In general, then, the legislature may enact any law that is not in conflict with the constitution.
Your particular question is whether the legislature may legally authorize and empower a state agency
to construe and interpret the provisions of section 50 of the Texas Constitution as it now stands. The
answer to your question, strictly read, is no. “[Tlhe Legislature has no authority to interpret or
declare a matter of constitutional construction,“6 nor may it delegate such authority to an
administrative agency.’ To do so, absent express constitutional authorization, would be to usurp the
powers ofthe judiciary in violation ofthe separation ofpowers principles set out in article II, section
1 of the Texas Constitution.’ Below we will discuss the interpretive powers that might be authorized
by the constitution. But as section 50 now stands, neither the legislature nor any state agency has
the power to declare definitively what it means. The ultimate power to construe constitutional
provisions lies solely with the courk9

This does not mean, however, that the legislature or a state agency may not in fact construe
the constitution. Some provisions of the Texas Constitution give the legislature, a state agency, or
a court the power to regulate in the subject area of the constitutional provision. For example, article
V, section 24 provides that certain county officers may be removed from office “for incompetency,
official misconduct, habitual drunkenness, or other causes defined by law,” impliedly authorizing
the legislature to construct causes for removal. (Emphasis added.) Other grants of regulatory
authority are more explicit. Article III, section 47(b), provides: “The Legislature by law may

‘Railroad Commh v. Lone Star Gas Co., 844 S.W.Zd 619,689.90 (Tex. 1992),

‘Brown Y. City of Galveston, 75 S.W. 488,493 (Tex. 1903).

‘Shepherd v. San Jacinto Jr. College Dist., 363 S.W.2d 742,743,750-51 (Tex. 1962).

6PoweN v. State, 17 Tex. Ct. App. 345,350 (1884); seeBarnettv. State, 62 S.W. 765.769-77 (Tex. Grim. App.
1900) (Davidson, J., dissenting); Attorney General Opinion M-1201 (1990) at 8.

“‘The legislature has no strictly judicial functions; and has no power to delegate to a hoard a function which
it does not itselfpossess.” Sun Gil Co. v. Potter, 182 S.W.2d 923,928 (Tex. Civ. App.--Austin 1944), rev’d on other
grounds, 189 S.W.2d 482 (Tex. 1945).

‘Article II, section 1 of the Texas Constitution provides: “The powers of the Government ofthe State of Texas
shall be divided into three distinct departments, each of which shall be confided to a separate body of magistracy, to wit:
Those which are Legislative to one; those which are Executive to another, and those which are Judicial to another; and
no person, OI collection of persons, being of one of these departments, shall exercise any power properly attached to
either of fhe others, except in the instances herein expressly permitted.”

?Yee Hays County AppraisalDist. v. Mayo Kirby Springs, Inc., 903 S.W.2d 394,397 (Tex. App.--Austin 1995,
no wit).

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authorize and regulate bingo games .” When given the power to implement constitutional
provisions, the legislature may define terms that are not defined in the constitution itself, provided
the definitions constitute reasonable interpretations of the constitutional language and do not do
violence to the plain meaning and intent of the framers.‘0

Thus in Schwenke v. State the court held that an administrative agency designated by the
legislature could define the causes for which a county officer could be removed from office under
article V, section24.” AndinAerospace Optimist Club v. Texas Alcoholic Beverage Commission,‘z
the court upheld the legislature’s interpretation of the term “proceeds” as used in the constitutional
provision regarding bingo proceeds, saying: “The legislature’s practical interpretation of a
constitutional term can be a valuable aid in determining the meaning and intention of that term in
cases of doubt.“13 In ways such as these, the legislature construes the constitution. While not
binding on the courts, these constructions are given weight. Whether a legislative construction is
a reasonable interpretation ofthe constitutionultimately remains amatter for the judiciary to decide.

Even where no implementing authority is given, a construction of a constitutional provision
given by the legislature or an executive agency will be given weight by a court in determining the
meaning of the provision. I4 A contemporaneous construction that has been acquiesced in and
adhered to for a long period of time is entitled to great weight.15 For example, the court in Panas
v. Texas Breeders & Racing Associution’6 considered a law regulating horse racing. The law was
challenged on the grounds that it violated article III, section 47 ofthe constitution, which at that time
prohibited “the establishment of lotteries or other evasions involving the lottery principle,
established or existing in other States.“” The court ofappeals held that the legislature’s legalization
of horse racing constituted an interpretation that horse racing did not violate the constitutional

‘%vearingen Y. CiiyofTaarkana,596S.W.2d 157,160n.l (Tex.Civ.App.--Texarkana 1979,mitref dn.r.e.)
(citing San Antonio Conservation Sot ‘y, Inc. v. City ofSun Antonio, 455 S.W.2d 743 (Tex. 1970)).

“Schwenke v. State, 960 S.W.2d 227,233 (Tex. App.--Corpus Christi 1997, pet. denied) (“Incompetence is
merely one of the four grounds for removal from oftice set out in article V, section 24. Each of these grounds:
incompetence, official misconduct, habitual drunkenness, or other causes defmed by law, requires interpretation. That
interpretation is left to the legislature and the courts.“).

“886 S.W.2d 556 (Tex. App.--Austin 1994, no wit).

“Id. at 560.

“Walker v. Baker, 196 S.W.Zd 324,327 (Tex. 1946)

“Director ofthe Dep’t ofAgric. & Env’t v. Printing Indus. Ass’n, 600 S.W.2d 264,269 (Tex. 1980).

I680 S.W.2d 1020 (Tex. Civ. App.--Galveston 1935, wit dism’d w.o.j.),

“Id. at 1024.

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prohibition against lotteries. Unless clearly wrong, the court said, a legislative construction of a
constitutional provision will not be set aside.”

Certain provisions in the home equity amendment authorize legislative action, creating
avenues for legislative or executive interpretations of those provisions. For example,
section 50(a)(6) provides that an enforceable home equity loan is one that “permits a lender to
contract for and receive any fixed or variable rate of interest authorized under statute.” (Emphasis
added.) And section 50(b) prohibits the sale or abandonment of a homestead without the consent
of each owner and spouse of each owner “given in such a manner as may beprescribed by law.”
(Emphasis added.) The legislature has already incorporated into statutory law someofthe provisions
of section 50, even though not expressly instructed by the constitution to do so. Section 41.001 of
the Property Code exempts homesteads from seizure for the claims of creditors, except for those
claims listed in the statute, which claims mirror the debts listed in section SO(a)(l) through 50(a)(5)
of article XVI.‘9 And section 53.254, regarding the requirements of a lien on a homestead for a
residential construction loan, incorporates some of section 50’s requirements for a home
improvement loan. To the extent that they construe the constitution, laws such as these are
legislative interpretations and will be given weight by a court, unless clearly wrong?O

The home equity amendment gives no general implementing authority to the legislature.
Nevertheless, given the legislature’s plenary powers, we see no constitutional prohibition on the
legislature authorizing a state agency to adopt rules implementing the requirements of section 50.
Any such delegation of power would have to be consistent with the provisions of section 50,
including those directing the state supreme court and the state Finance Commission to take certain
actions with respect to home equity lending. *’ Again, while not binding on the courts, executive
constructions will be given weight by a court in construing the constitution. Whether an agency’s
interpretation of section 50 conforms to the requirements of the constitutional provision ultimately
will be a question for the courts.

This brings us to your proposal to amend the constitution. The constitution may be amended
to create any law that the voters see fit to approvez2 and that is not inconsistent with the United States

‘8Id.

‘The debts enforceable against a homestead listed in section 41.001 are debts for: (1) purchase money; (2)
taxes; (3) home improvements; (4) owelty of partition; and (5) refinance of a lien. Curiously, section 41.001 does not
include as permissible encumbrances home equity loans or reverse mortgages as provided for in section 50(a)(6) and
50(a)(7) of the constitution.

“See In re Bradley, 960 F.2d 502,Sl I 11.18 (5th Cir. 1992), cert. denied, 507 U.S. 971 (1993); In reMoody,
862 F.2d 1194, 1201 (5tb Cir. 1989).

“See infrn note 26.

“The power to amend, revive or re-enact a law rests with the people of the State. They can amend the
(continued...)

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Constitution.” While the purpose of a constitution normally is to establish the basic and general
foundation of a governmental system, in Texas, as one court has noted, “[o]ur Constitution is
distinguished for the particularity of its provisions and the details into which it enters in reference
to matters of government.“*4 This statement is no more clearly evidenced than by the home equity
amendment, which, in nineteen paragraphs with over forty subsections, prescribes in detail the
requirements for debts enforceable by foreclosure on a homestead. Although the wisdom of writing
such details into the constitution has been questioned,25 it is nevertheless not prohibited.

As we discussed above, the legislature, a state agency, or a court may be given the power to
implement constitutional provisions. While section 50 contains no general grant of implementing
authority, it directs the state Finance Commission and the state supreme court to take certain specific
actions with respect to home equity lending. x We see no prohibition on section 50 being similarly
amended to include a grant of authority to the legislature or to a state agency to regulate with respect
to some or all of its provisions, and in this way construe the constitution. Still, in such a case, the
courts must decide whether any statute or regulation is consistent with the constitution.

In theory, the state constitution could be amended to give a state agency definitive
interpretive powers over constitutional provisions, subject to the requirements of the federal

Constitution in any particular they desire.” Stephens v. Sfate, 133 S.W.2d 130, 131 (Tex. Grim. App. 1939).

21A state constitutional provision is invalid if it conflicts with the federal Constitution. See Reynolds v. Sims,
377 U.S. 533, 584 (1964).

2’Brown, 75 S.W. at 493.

2“‘Procedural details should not be written into constitutions, but state constitutions should provide for
reasonable procedural regulations by legislative enactment.” Exparte Davis, 574 S.W.2d 166,169 1x4 (Tex. Grim. App.
1978).

The United States Supreme Court said inM’Cu~/och Y. Mmyland, 17 U.S. 316,407 (4 Wheat.) (1819):

A constitution, to contain an accurate detail of all the subdivisions of which its great powers
will admit, and of all the means by which they may be carried into execution, would partake
of the prolixity of a legal code, and could scarcely be embraced by the human mind. It
would, probably, never be understood by the public. Its nature, therefore, requires, that only
its great outlines should be marked, its important objects designated, and the minor
ingredients which compose those objects, be deduced from the nature of the objects
theIIlSelVeS.

?See Tex. Const. art. XVI, 5 50(r) (directing supreme court to promulgate rules for expedited home equity loan
foreclosure proceedings); id. 5 50(s) (directing Finance Commission to research availability, quality, prices, and
practices of home equity fmancial services and report annually to legislahue).

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Constitution.27 As we discussed above, a statute authorizing a state agency to construe section 50
of the constitution as it now stands would usurp the power of the judiciary branch. However, article
II, section 1 provides for the separation of legislative, judicial, and executive functions “except in
the instances expressly permitted” in the constitution. The interpretive commentary to the
constitution explains:

The Texas Constitution itself vests in each of the three departments certain
powers which, in their essential nature, have not belonged to it. Article II
recognizes this when it states that “no person, or collection of persons, being
of one of these departments, shall exercise any power properly attached to
either of the others, except in instances herein expressly permitted.”

.

Thus, it is not exactly correct to state the principle of separation of
powers as absolutely prohibiting performance by one department of acts
which by their essential nature belong to another. Rather, the correct
statement is that a department may constitutionally exercise any power
whatever its essential nature, which has, by the constitution, been delegated
to it; but that it may not exercise powers not so constitutionally granted
which from their essential nature do not fall within its division of
governmental functions.28

In other words, each branch of government may exercise those powers that are essentially within its
area of function-legislative, executive, or judicial-and may exercise powers outside of its area if
expressly authorized by the constitution to do so. The interpretive commentary cites such grants of
power already in the constitution:

[T]he Constitution expressly permits the Supreme Court to exercise the
essentially legislative power of making certain rules of procedure, and the
executive power to appoint a clerk. The executive has been granted the
legislative veto, and the judicial right of pardoning. The legislature has been
given the judicial powers of impeachment and the right to judge of the
qualifications and elections of its own members; and the Senate, the
essentially executive power ofparticipating in the appointment of ofticials.29

27See supra note 23.

28Tex. Const. art. II, 5 1 (intap. commentary) (Vernon 1997).

“Id.

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Thus the constitution could be amended to give to an executive agency judicial-type interpretive
powers with respect to the home equity amendment.

We do not advise you on the wisdom of this or any other particular action. We believe,
however, that both statutory and constitutional avenues exist for the legislature to authorize a state
agency to regulate with respect to the home equity amendment.

SUMMARY

The legislature has the power to enact any law that is not in violation of
state or federal constitutional provisions. It may not, however, infringe upon
the power of the judiciary to construe and interpret the constitution. Thus
while the legislature may not, absent express constitutional authority,
empower a state agency to definitively construe article XVI, section 50 ofthe
Texas Constitution-the home equity amendment-the legislature may
authorize a state agency to adopt rules implementing the requirements of the
home equity amendment. Whether any legislative or administrative action
is consistent with the requirements ofthe constitution is ultimately a question
for the courts to decide.

The constitution may be amended to create any law that the voters see fit
to approve. The legislature may propose, and the voters may approve, a
constitutional amendment authorizing a state agency to implement or
construe provisions of the constitution.

Yours very truly, /

DAN MORALES
Attorney General of Texas

JORGE VEGA
First Assistant Attorney General

SARAH J. SHIRLEY
Chair, Opinion Committee

Prepared by Barbara Griffin
Assistant Attorney General

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