T%~EA'ITORNEY GENERAL
OF TEXAS
Aus-rm. TRKAe 78711
January 17, 1974
The Honorable Bill Meier, Chairman Opinion No. H- 217
Convention Organization Committee
Texas State Senate Re: May Constitutional
Austin, Texas Convention propose
additions to Texas
Dear Delegate Meier: Bill of Rights?
Your letter requesting our opinion, after quoting subsection (8) of
Sec. 2 of Article 17 of the Texas Constitution, continues:
“Some interest has been exhibited in the Constitutional
Revision Commission hearings and in correspondence
to convention delegates in expanding the Texas Bill of
Rights to include such items as a right to work, a right
to live, and a right to a clean environment, among
others. So that we may proceed to plan for an orderly
convention, at the request of the Convention Organ-
ization Committee members, it is desirable that we
establish at this time whether or not items may be
added to the Texas Bill of Rights.
..~.
“The specific question I propose is:
“In light of your earlier opinion (H-121) which stated
. . a
‘Therefore, it is our opinion that the
Constitutional Convention has only those
powers which are expressly granted
to it by Article 17, 0 2,and must oper-
i ate in the framework which that provision
prescribes. ’
“and in view of the limiting language of subsection (g)
which states , . .
p. 1010
The Honorable Bill Meier, page 2 (H-217)
‘(g) The Bill of Rights of the present
Texas Constitution shall bs retained
in full. ’
“may the Constitutional Convention, convening in January, 1974,
propose additions to the Bill of Rights, which is Article I of
the present Texas Constitution? ”
Your question and our answer to it obviously are limited to the powers
of the Constitutional Convention functioning pursuant to Sec. 2 of Article 17
of the Constitution, adopted in November, 1972.
Rights guaranteed by the Bill of Rights have the same constitutional
dignity as rights guaranteed elsewhere in the Constitution. The lang-
uage of subsection (g) clearly indicates that. at a minimum, the present
Bill of Rights must be carried forward in -- full into any new Constitution.
Nothing in that subsection would prevent addition of other tights, else-
where in the Constitution, so long as those newly added rights do not alter
or modify rights guaranteed by the Bill of Rights. Otherwise much alter-
ation or modification would result in not carrying the Bill of Rights
forward “in full”, whether such modification occurred directly or indirectly
This much is clear. What is not totally clear from the language
of subsection (g) is whether such new rights as you have mentioned may be
included in the new Constitution &as a part of the general provisions,
or whether they might be added as additions to Article I. the, Bill -of Rights.
We have found no case directly in point on this question, and must therefore
utilize general rules of statutory construction including determination of legis-
lative intent, to arrive at an answer.
Our attempt to determine the intent of the Legislature in proposing
subsection (g) of Article 17, Se.c. 2, and of the people of the State in adopting
it, requires that we look to the background of the provision, to the words
used, and to subsequent interpretations given it.
In the course of our inquiries, Senator Nelson A. Wolff, one of the
sponsors of the resolution leading to the adoption of Sec. 2 of Article 17.
has advised us:
p. 1011
,
The Honorable Bill Meier, page 3 (H-217)
“The intent of the subsection was to guarantee that the
existing language of the Bill of Rights of the 1876
Constitution would not be altered by deletion or revised
language of existing provisions.
“I do not believe that the intent of subsection (g) was
to prohibit any additions but rather to insure retention
of all eldsting rights and language.
“While, . . . that provision was probably not
necifically designed to prohibit any addition, but
zather to preserve intact the language of the 1876
Bill of Rights, I am firmly convinced that many of
the legislators who voted for the resolution and the
amendment which added this language intended that
the Bill of Rights should not be altered in any way,
either by addition or by deletion I’
We are advised by Sam Coats, a sponsor of the subsection (gl language:
“As a co-sponsor of HJR 61, I felt it essential to leave the
present Bill of Rights in the Texas Constitution completely
intact in order to assure passage of HJR 61. It was my
intention in sponsoring the amendment to the resolution
that the present Bill of Rights be left completely alone by
the Constitutional Convention. Consequently, the amend-
ment was designed to remove the present Bill of Rights
from the purview of the Convention and prevent it from
being changed in any way, either by addition or deletion. ”
Ben Bynum, a principal sponsor of H. J. R. 61 of the 62nd Legislature,
calling for the submission of Article 17, Sec. 2, to the voters, has written us:
“I feel compelled to make several observations relating to
the adoption of this amendment since in retrospect, I
realize that there could be some confusion as to the precise
meaning of the provision. At the time of adoption and indeed;
subsequent to that adoption, the intent of the House of Rep-
resentatives, which added the language was clear. In
appxting the amendment by Mr. Coates, with whom I worked
closely on the resolution, I intended to prohibit the changing
p. 1012
The Honorable Bill Meier, page 4 (H-217)
in anv manner. either bv addition or deletion, of any portion
of the Bill of Rights. It was my feeling then, as it is now,
that the fundamental guarantees afforded to all the citizens
of Texas by the Bill of Rights contained in the 1876 Consti-
tution have not changed and should not be altered in any
fashion. What the Legislature proposed in H. J. R. 61 was
a Convention which would re-evaluate our framework of
State and local government in Texas and the divisions of
responsibilities among the branches of government; it was
not, in my opinion, the intent of the Legislature to alter
in ‘any way fundamental principles of human rights. ” (Em-
phasis added)
The public’s understanding of the meaning of Article 17. Sec. 2, was doubt-
less shaped in significant part by media statements preceding the election.
We have looked to newspaper articles advising the public on the proposed
amendment prior to its adoption in November, 1972, and find statements such
as: “Only the Bill of Rights is exempted from consideration. ” (Mike
Kingston, Dallas Morning News, October 17, 1972); ” . . . any new docu-
ment produced by the legislature in 1974 must contain the current constitution’s
bill of rights . . . “, (Sam Kinch, Jr., Dallas Morning News, August 12.
1972); “The existing Bill of Rights, for example, would be preserved untouched
by the draftsman” (Stewart Davis, Dallas Morning News, September 2, 1972);
I7 . . . requires that the constitutional convention not disturb the bill of rights,
which must be retained, ” (Clay Robinson, San Antonio Light, September 24,
1972); “One thing would be held out of reach to the convention - the 29 -
section bill of rights . . . .‘I (Robert Heard, Corpus Christi Caller, October 24,
1972); “The bill of rights now in the constitution would not be altered or revised,
but fully retained in any new document” (Bill Coulter, Houston Post, October 27,
1972). Others might be cited.
Various interested groups have suggested varied interpretations.
The Constitutional Revision Commission, created by authority of Sec. 2 _
of Article 17, did not itself determine the precise meaning of subsection (g).
It did not add to or delete from the Bill of Rights in its proposed revision.
Its published commentary states:
p. 1013
The Honorable Bill Meier, page 5 (H-217)
“The Commission did not undertake any changes in the
Bill of Rights (Article I of the Constitution of 1876)
since the constitutional amendment which initiated
the revision procedure requires that the Bill of Rights
be retained in full. Therefore, no commentary for
the Bill of Rights is provided in this report.”
When we consider all of the evidence which has been made available
to us we are compelled to conclude that it was the general intent of the
Legislature and of the people of Texas in submitting and adopting, res-
pectively, subsection (g) that the provision would prohibit any change
in the Bill of Rights either by deleting or altering the existing sections
or by adding new ones as a part of the new Constitution’s Bill of Rights.
We do not interpret the language as prohibiting the insertion of “rights”
provisions in other Articles of the Constitution. We must add, however.
that the admonition of subsection (g) that the Bill of Rights “shall be retained
in full” is a substantial one and, no matter where a provision may be in-
serted or what right it may protect, no provision appearing in the proposed
Constitution may either directly or indirectly alter or modify the effect of
any existing provision of the Bill of Rights.
SUMMARY
Article 17, Sec. 2, subsection (g) of the
Constitution of 1876 requires that any new
Constitution proposed by the Constitutional
Convention retain the present Bill of Rights
exactly as it is, without addition or deletion,
and that no other provision elsewhere in the
Constitution may in any way alter the effect of
any provision of the Bill of Rights. “Ri ghts”
provisions which do not alter or modify the
Bill of Rights, may be placed in other approp-
riate articles of a proposed Constitution.
Very truly yours,
OHN L. HILL
General of Texas
p. 1014
The Honorable Bill Meier, page 6 (H-217)
DAVID M. KENDALL, Chairman
Opinion Committee
p. 1015