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Novet&r 18, 1957
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Honorable.'W.,:S.~ Heatly, Opinion No. WW-323
Chairman
State Affairs Committee Re: Constitutionality of House
House:of Representatives !, ~' Bill No. 1 and House Bill
Austin,.Texas 'No.,,2 of the Second Called
%&ion, 55th Legislature,
Dear Mr. Heatly:~ " .
" You have,requested the:Opinion of this office on the
constltutLonality of House ,Bi;ll No. 1 and House Bill No, 2, now
pendingbefore 'the State Affairs Committee of,the House.
,~,
", We shall 'first consider '3% provisions of House.,Bill
No. 1.' Section 1 of the latter bill recites the purpose of the
bill~in the following terms:
" yThe'purpose'Of,this"Act isto'further pro-
~" video for the maintenance,,of law, peace, and~order
in.the operation of the public schools without re-
sort to military occupation or control. The duties
~arid'powers vested ,in,public ,officlals and school
: : ,'boards under this Act shall be in addition to and
cumulative of those with which they are vested un-
,' der existing law for accomplishment of the purpose
of this Act or any Section thereof.'!
Section 2 provides insubstance that the Governor,
through the Department of Public Safety, shall provide assist-
ance whencalled upon by local authorities to maintain peace and
order :in the operation of public schools. Said section further
provides ~that'the Texas National Guard and other 'military
forces:.shall not be used for the foregoing purposes. There is
further provision that when a school board finds that violence,
or the dangerthereofj; ,~catslot ;be $revetited'except~ by resort to
mlXLtary~;~force! o$.ioccupatiion'.'of ;a !ptiblic .~sehool, ,the school
board.&!y.4loi$e the sohoof'!atid ~suspe.ndft;s ;operat%on for such
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g$a'p$ td ,ims;':f&at:n order and
th~~p~~biQld~i.p~'be~'~rl'~~~eaIld~~e :~~~&,i$h@:~t~~~~ ,of::t;his Act,
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Honorable W. S. Heatly, ~page 2. (w-323).
Section 3 provides that fin the event the National
Guard or any other military troops or personnel are employed
or used upon order of any Federal authority on public school
property or in the vicinity of any public school for direc-
tion or control of the order, operation or attendance at such
,school, the school board~havlng~Jurisdlction may close the
school and suspend its operation so long as said troops re-
main on or within the vicinity of the school for any such
purposes.
Section 4 provides that when a school is closed,
pursuant to the provisions of Section 2 and 3, the salaries
of school personnel shall not be affected and neither shall
such closure affect state aid nor accreditation,
Section 5 provides that the school board shall use
all resources of the district to provide out-of-classroom
instruction for the pupils concerned and for the reopening
of school at the earliest possible time that peace and order
can be maintained without the use or occupation of military
forces.
Section 6 authorizes the Attorney General to assist
public school boards In the defense of certain suits in the
Federal Courts and further authorizes the Governor to transfer
funds to the Attorney General for such purposes.
The foregoing are the provisions of House Bill No.1,
with which we are primarily concerned in passing upon the
constltutionality~of the bill. There are other provisions
which we have carefully considered but, in the interest of
brevity, have not mentioned.
In 78 C.J.S. p. 624, it is stated:
“The power to establish and maintain
systems of common schools, to raise money for
that purpose by taxation, and to govern, con-
trol and regulate such schools when established
is one of the powers not delegated to the Unlted
States by the federal conetltutlon, or prohibited
by it to the atatea, but,ia reserved to,the state0
respectively or to the people, and the,people
through the legislature and the constltutlon have
the right to oontrol,and prescribe the limits to
which they will go tn. eupplylng eduoatlon at pub-
lic expense, ”
Honorable W. S. Heatly, page 3. (w-323)
As early as 1845, provision was made In our State
Constitution for the establishment and maintenance of a system
of public free schools. ,Our present constitutional provision
is embodied In Section 1 of Article VII, which reads as follows:
“A general diffusion of knowledge being
essential to the preservation of the liberties
and rights of the people, It shall be the duty
of the Legislature of the State to establish
and make suitable provision for the support
and maintenance of an efficient system of public
free schools. ’
The foregoing constitutional provision devolves the
duty of establishing and maintaining public free schools upon
the Legislature. In defining the authority of the Legislature
In the field of public education, the Supreme Court of ,Texas,
ins the case of MwMlea 40 S.W. 2d 31, said:
“Since the legislature .has the mandatory duty
to make suitable provision for the support and
maintenance of an efficient system of public free
schools, and has the power to pass any law relative
thereto, not prohibited by the constitution, it
necessarily follows that it has a choice In the
selection of methods by which the objects of the
organic law may be effectuated. The Legislature
alone Is ,to judge what means are necessary and
appropriate for a purpose which the constitution
makes legltlmate. The legislative determination
of the methods, restrictions, and regulations IS
final, except when so arbitrary as to be vloiative
of the constitutional rights of the citizen.
The provisions of House Bill No. 1 are founded upon
the premise that the presence of military troops In or about
the public schools of the State is not conducive to the maln-
tenance of an “efficient” system of public free schools. The
bill, accordingly, provides that when troops are employed or
used upon or in the vicinity of public school property or when
such conditions of violence and disorder exist in connection
with the operation of a public school that violence or the
danger, thereof cannot be prevented, except by resort to mili-
tary force, the school may be closed for 80 long as either of
the foregoing conditions exist. By Its express terms, the bill
operates exclusively against the evil sought to be avoided or
corrected, The authority granted thereby comes Into existence
with the evil and ceases to exist when the latter has been
eliminated. Its provisions apply alike to all of our schools
and all of our citizens.
Honorable W. S. Heatly, page 4. (W-323)
With the exceptions hereinafter noted, we think
the bill contravenes no provision of either our state or
federal constitution. Its provisions are entirely consistent
with the constitutional mandate directed to the Legislature
for the support and maintenance of an efficient system of
public free schools. It also constitutes a legitimate exercise
of the police powers of the State.
The foregoing conclusion Is based upon the assumption
that the terms of the bill will be observed and enforced In the
manner and only for the purposes as set forth therein. An act
constitutional on its face may become unconstitutional in the
manner of its enforcement, but It is not within the province
of this office to assume that an act will be enforced, or sub-
verted to the accomplishment of unconstitutional purposes, con-
trary to its express terms.
A serious constitutional question is presented In
connection with that portion of Section 2, which prohibits
the use of the Texas National Guard or other military forces
to prevent violence and maintain peace and order in the oper-
ation of public schools. It Is our view that this prohibition
violates Section 7, Article IV of the Constitution of Texas,
which, in speaking of the powers of the Governor, provides:
"He shall be Commander-in-Chief of the mill-
tary forces of the,state, except when they are
called into actual service of the United States.
He shall have the power to call forth the militia
to execute the laws of the state, to suppress ln-
surrections, repel invasions, and protect the
frontier from hostile Incursions by Indians or
other predatory bands."
As written, Section 2 would constitute an infringe-
ment upon the executive powers of the Governor. We understand,
however, from your supplemental letter, dated November lbth,
that this section will be amended by the State Affairs Com-
mittee, pursuant to the request of both the Governor and the
author of the bill, to provide that the "Texas National Guard
and other military forces shall not be called or used for
such purposes by the Governor, or any other official authoriz-
ed by the laws of this state, except as a last reSOrt”. It IS
our view that the proposed amendment would render said section
constitutional.
Honorable W. S. Heatly, page.5.. (Ww-323)
This.conclualon finds support in the case of Neff et
al v. E&in, 270 S. W. 873 (Writ of error ref.), which med
the constitutionality of the Act creating the Texas Banger Force.
The Court said:
"The Governor is empowered to call forth
the militia to execute the laws of the state, to
suppress insurrections, repel invasions, and
protect the frontier from hostile incursions by
Indians or other predatory bands; but it is not
intimated that the laws shall be executed by the
militia alone, but the plain inference is that
the militia is to be used in ,executing the laws
as against organized violation of laws, and the
commission of crime. '. . .
II The Constitution . . nowhere limits
the authoriiy of the Legislature-in providing
means to enforce the laws. . . .'
It is entirely consistent with both our Constitution and our
form of government thatthe use ~of the militia be limited to
those circumstances where the civil arm of the State is in-
adequate to cope with the situation.
It has been suggested that Section 6, which authorizes
the Attorney General to assist local school boards in the de-
fense of certain law suits, and makes funds available for such
purposes, is not germane to the general subject matter of the
bill and hence constitutes a separate subject, contrary to
Section 35 of Article III of the Constitution of Texas. We do
not subscribe to this view. Incorporation in the body of an
Act of the means by which its object may be accomplished does
not render the Act obnoxious to the constitutional inhibition
against bills containing more than one subject. Accordingly,
an Act with one leading subject, which is expressed in its
title, may contain appropriate,provisions designed or tending
to accomplish, effectuate or enforce the general object or pur-
pose of the law. 39 Tex. Jur. 90 and the cases there cited.
Although it is our view that Section 6 can be sustained as a
part of House Bill No. 1, the Legislature might wish to incor-
porate the provision in a separate bill to remove any doubt
relative thereto.
It is noted that the last sentence.of Section 6,
authorizes the Governor to transfer certain funds ~to the office
of the Attorney General. : This:is a.matter ,which.is notinclud-
ed in.the~caption of the bill and should be so included.
Honorable W. S. Heatly, page 6. (w-323)
It is also noted that the caption Indicates that
either the Governor or the local school board may close a
school, but the body of the Act vests such authority solely
in the school board. This is a discrepancy which you will
doubtless wish to correct.
You are accordingly advised that it is the opinion
of this office that House,Blll No. 1, subject to the adoption
of the proposed amendment to Section 2 thereof and other ,matters
mentioned, is constitutional.
It is also our view that the same general principles
which sustain the constitutionality of House Bill No. 1 are ap-
plicable to House Bill No. 2. Section 1 of the latter bill,
z;ro;i provides in substance that when federal troops occupy
its grounds or yards, or adjacent property, either
public o$ private, that the school shall close and remain closed
so long as the troops remain. As written, the language Is suf-
ficiently broad to place school districts which are adjacent to,
or inclusive of, military reservations in a doubtful status.
The school would be compelled to close even though the presence
of the federal troops be in no way connected with or related to
the operation of the school.
Section 1 of House Bill No. 2 would require and Sec-
tion 3 of~House Bill No. 1 would only authorize a school board
to close the schools when federal troops were used. If a board
should determine that the presence of the troops rendered the
school inbfficient and ineffective to carry out its educational
purpose, then in our opinion the board could close the schools
and in doing so would not make Seotion 3 of House Bill No. 1,
unconstitutional. However, if the troops did not impede the
efficiency of the school nor render ineffectual its educational
purpose, it could not close the schools simply to thwart the
federal order. Because Section 1 of House Bill No. 2 would re-
quire the school to close irrespective of any effect the pre-
sence of federal troops might have upon the operation of the
school, the bill is unconstitutional to this extent. The bill
could, of course, be amended to remedy this defect.
Section 5 of House Bill No, 2 provides that no state
funds shall be paid to any school district which fails to com-
ply with the provisions of the Act. This provision cannot have
any effect upon the distribution of the state available school
fund. Section 5 of Article VII of the Constitution of Texas
renders it mandatory that this fund be distributed annually to
the several counties according to their scholastic population.
Honorable W. S. Heatly, page 7. (w-323)
This constitutional provision may be satisfied only by the dis-
tribution and application of the funds and not by withholding
them. Attorney-General's Opinion No. O-4052 (1942); Jurnigan
V. Finley, 90 Tex. 205.
We would suggest that a section be added to clearly
exempt the normal operation of the Reserve Officers Training
Program, National Guard and Texas State Guard, from in any
manner calling into effect the provisions of either bill and
also exempting school districts operating on Federal Military
Reservations or adjacent thereto.
SUMMARY
House Bill No. 1 of the Second Called
Session of the 55th Legislature, is
constitutional subject to the matters
noted.
House Bill No. 2 is unconstitutional
for the reasons stated.
Very truly yours,
WILL WILSON
Attorney General of Texas
LP:zt "Leonard Passmore
Assistant
APPROVED:
OPINION COMMITTEE
Geo. P. Blackburn, Chairman
Wayland Rivers, Jr.
John H. Minton, Jr.
Joe Carroll
Riley Eugene Fletcher
Grundy Williams
REVIEWED FOR THE ATTORNEY
GENERAL
BY: James N. Ludlum