Honorable Penrose bdetcalfe
chairm* Seu8te Commlttet
koatiu. Texas
Opiuiou No. 042fS
Re: Codutructioa of &mate Resolu-
thus Nos. 35 ad 103. passed at
the Regular se8sioa of the 4otb
Legirlatun, with respect to pub-
Ik 8ChoelS.
WC beg to ackaewledge receipt af patm letter rtth respect
to the &we suibject ~&era u f0Uew-a:
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pamed at the Regular Sessiu~ ef the Forty-eight
LegWature. whtch read respectively a8 mowa:
l ’ ‘Wher eu, The Sa te c d T- l8 e x p end-
iligferfrectaxtbao~tobcu8edin~~-
lie scha& from $1.500.000 to $&ooo,000 each
year; ud
* *Whereas. Tbecre arc e6w peadilrg before
l
the Legblature 8cveral bill6 prope8tag to 8l-;,
tar the 8nbjecta in adopttoa. and the method
o fldmbdstratloa ia the purchase tad distrt-
butiouof-iaad
“ ‘Wharers, It is desirable that the
Logts&turc acquire impartial taform8tbn
ccmceratug the efficleucy aud compatibil-
tty ef the adzdulstr8the m&hod8 xtew pre-
ocrlbed by.~1s~. and cameraLag ths casts
ld uea ef text book& and 8ueh other data
8s may b6 ueedful to lsstst the Legid.ature
iu datermintq wbetber te continue 0% to
chauge present laws aafl prcpvictoru retat-
ing to the prchmc. dietributien and use
Hon. Penrose Metcalf=. Page 2.
of free textbooks in the public 8chools of
this State; now, therefore
” ‘Resolved by the Senate of the State
of Texas:
** ‘Section 1. That the Lieutenant Govem-
or be, aud he is hereby autborised to appoint
a committee of five members of the Sexmte to
sit at such time and places between thin date
and the date of the adjournment of the Regu-
lar Session of the Forty-eighth Legislature,
u may to said committee seem necessary and
proper: and to inquire into any other affairs
and activities of governmental departments,
institutfons, persons, firm8 or corpor8tions
of whatever hind and char&cter, as such activi-
ttes fn *ny way affect the situation above let
forth, md ahall have authority to investigate
and inquire into Fuch m&ers.
‘* 73ec. 2. That said commfttee ahall have
the power to formuhtt to~p*ai
ids own n#t8
for of
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hour8 of meeting, rtces8iag. 8td tdjmuameh
Provided, however, that the rulu of tvidenct
to be followed shall be practically the same
as followed in the courts of this State, and
the committee is authorbed to hold executive
teositnt, within ite dbcrttitn, tad thtn tht
comdtttt may be governed hy the rule8 of evi-
dence applicable to any grand jury inquiry in
thi8 state.
:4 l* ‘Sec. 3. T h a t the ra8jority of the Mem-
bership of the committee #hall have power to
iuut proce8s for witnessew to 8ny plnae in
this State, and to cempel their attendance.
and produce all books and records.8 ad upon
disobedience of my 8ubpwma the said coxa-
mitt& shall lmve the power to i8me attach-
mrntt which may be addressed to aud servti by
either the sergeant-at-arms &$potnted by f&id
comdttee or my sheriff or auy coasbbla ef
this St&o; and said committee shall &ve
authority to cite for contempt my oao dls-
obeying e&M process tnd tt ptudsh for such
Senator Penrose Metcalfe, page 3
contempt in the same manner as provided for
by general law. Said committee shall have
power to inspect and make copies of any books,
records, or files aad any and all other iu-
strumants and documents pertinent to the mat-
ter under investigation by said commltiee.
and shall also have power to examine and
audit the books of any person. firm, or cor-
poration having dealings with departments
and institutions under investigation by said
committee. The committee shall have power
to administer oaths and affirmatious and fix
the bonds of attached witnesses; and the com-
mittee shall further have all the powers
necessary in order to accomplish the purposes
for which itb appointed. Three Members of
such committee shall constitute a quorum for
the traneaction of official business.
l’ ‘Sec. 4. The witnesses attending under
process shall be ahnved the same mile8ge and
per diem as la allowed witnesses before any
gwnd jijry in this State.
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~” ‘Sec. 5. Said committee shall have power
and authority to emply rod compensate all
neccau~ Lnvc8tigdote, auditors. clerks,
otanographers. lnd any other necessary em-
ployees, and it shall be the duty of said
committee to make and keep,8 record of its
iava8tig8tw5.
.
‘* ‘Sec. 6. That said committee may call
upon the Attorney General’s Department, Audit-
ing Department, and all other departments for
assistance and advice; and it shall be the duty
o f the Mtmney Gtneml’s Department to
render opinioas. give couusel and assistance
to said committee on request of chairman or
Members of said committee.
” ‘Sec. 7. That said commtttee shall sub-
niit 8 rq art tn writing to this Legislature
at the earltest practicable time, and make
such recommendations as it may choose to make.
The compensation and expem es herein provided
for incident to the work of such committee
shall be paid out of the appropriation for
Senator Penrose Metalfe. P*ge 4.
mileage and per diem and ctmtin~nt fund of
the Forty-eighth Legislature
and out of any
fuud otherwise rppropriated by arid sessioa
of said Legislature for such purpose, upoa
sworn account of pcrsms entitled to such
pay, when approved by the chairman of said
committee; aad lufficieat money ia hereby
appropriated out of the mUe*ge and ptr
diem aad contingent fund of said Forty-
eighth Ltgislafurr tt mttt the payment of
such per diem aad expeases of the Members
of satd committee, witaesses, fees, tnd
other expeuaes incident to said iavestiga-
n0fk.
” ‘Sac. 8. Said committto m*y include
in its report its recomdnend4ttoa of any
ltgislatiou that should be euacted or other
.&ion th.t should be t&en.’
*++*+
-’,, iA_:, ..(:)T.!.:W&ere+,
rklmw!h..*~.:r;r!:~ ,The. Ceqzqittee.sppeiated un~;,_>
dtr rrrthsrity of 3. ,R No. 33 to invtstigttt
the frtt ttxt hook sftutti~ in Ttxts hts
m8dt good prelimluuy progress .$owuit‘ its
objective; asd
I’ ‘Whereu. Theaa investigatioua hava
dsvtltptd t rttl netd for further study of
the entire m8tter to the cad th8t proper.
laws may be drafted to. ttlvt thit ptrpltx-
itg problem; pm, thtrefore. be it
” ‘Resolved by the Senate of Texas. That
this coxnmittee ba tontimed 8fter adjown-
meat of the Ltgitltturt tadthtt Ubt di-
rected ta ttudy and iavestigate the tituat-
tion as tt free text btoks tnd such other
xrmtten affecting the scheols of Texas as
in its wiadoka it niay see fit and make its
reoommtnd8tions tbereoa to the next at@tr
St8sionof tie Legislatare, and that in
carrying out the direction hereinconttkwd
that the said eocumittee shall have 8nd qce-
cute all powers and authority granted and
vested in it under the provisions of 6. R.
No. 35 and this resolution.’ ;
Sendor Penrose Metcalfe, page 5.
“I h8ve cpiled the Committee together to in-
vestlgata the differaaees that hava rristn between
the Botrd of Rages&t of the ‘University of Texas
aad the President of the University and the Faculty,
with the fdta of dtterminw what legislatisn. if
any. may be needed to define more clearly the pre-
rogatlvts, authority, and duties of the Board of
Rtgentt and the sdministrrtiw officers and the
Fwulty of the said University~ aad te prevent, if
possible. a recurrence of dtsagrtements over coa-
flitting authority; and to determine whether or not
sdditionsl tegi6lrtioa msy be necessary te further
dafine the duties and qualificatioas of the Members
of ths Board of Rege+ts am3 the President; and to
study the rdvisability of such legislation as may
be n*cess*ry to promote the weU*re of the Univer-
sity, the largest school in Texas. to the end tit
it m*y become 8 univtrdly of the first class 88
or&intd by the Couditu+m of the State of Teus.
“The authority of ok& Committee, uader the
8forts8id ~~80mi02k6, t0 :%ava&ig*te there and re-
lattdma&ers~hu~b&~,~ts#oatd~
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proceed te iuvtstigatt the mdttti 8fore-
medirtely
lid under8uth o r Ny
o fth 8R e so lutit8s
u lt forth
herein."
It is academic to say that J1 public officers in this State
art clothedwith'suthpewerm ealy as ,8re c&erred qpaa them by
Irr,eithtr4txprssdy srby~ctssaryim$c&f~' B~thertfortbe-
comes necessary for us to coaaidtr Rtstiutitat Nos. 35 and 103 quoted
by yut, to determine whether or nc$ the ptwer of’your Com&teet
mad& theseResolutions, tactrrdsi the partida? iavestigatioas inquired
aboutiatlwcoacludiag partitntfyourltctler.
A resolution by the Stnttt, like a bill u&a pused is te be
coust4 liberally with a *a to tffettute the purput of the body
pu‘iug it.
Unlike a bill, u contradistinguished from a resohtten, how-
ever, the investigstioa in not embarrassed by the constitutional
requiremtut of title.
Sectlon 35 of Article III of the CoautitUtioa, declaring that!
“NO bill (except general l ppropriatioa bills, which may embrace the
Senator Penrose Metcalfe, Page 6.
various Gobjdcta and 4ccounta. for and on account of whfch mq4pa are
approprteted) shall contah more thus one subject. which a- be 4x-
preaaed in ita title + l ***,r tla tea tobill4 only and not ta rea$lutiona.
So that. our inquiry is in that respect narrowed so as to elimkn4t4 any
quecrtion of constitutional validity.
*‘The cher4cteriatic feature of 4 resolution is
ita 4ruuti~ clause. ‘Be it Rtaolved;’ were any other
t4rm used. it would ceeat to bc a rtaolution.” --St&e
v. Deleadenier. 7 Tex. 38, lc 48.
So that, we are to conature resolutions as whole, &ing tn
th4 “WhCreaa*’ clauses their proper consideration in diacov+iag
tbt tenatorial intention. Such portions. howtver, hrvt no legelly
controlling effect over other portiona.
In Tarred v. King, 14 SW. (td) 786. Mr. Justica G~4nwo4d,
for the Supreme Court, said:
“Tbt authority of each house ta uaak?gtalrtive t’
committ44a of inquiry end &wtatigatioa ts affirm&d
in Cooley’a Coaatitutional l&nit&ions (8th Ed.) at
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” ‘Each house muet almo’be allowed to pro-
c44dinit8 4wawayinth4 collectionof
ouch information as may l44m important to a
proper discharge of its functions and whea-
ever it ia deemed deairrble Uut wN.r14ast4
should be exnmined, the powtr uxl4u$hority
to do’ao is very properly referred to m ccnd
mi#te, with 4ny pow4ra. short of final legia-
&tive or judicial action es may la4m ntcesaary
or expsdient in the particular case.’ ”
The Juatica, ape4king more concretely, further SJltc
3:
“* * *. The Senate and the Hause are lep a r a tt i
b&its, charged with duties. most of which art to be
performed by each house separattly. despite the fact
that the coacurrenc4 of both houses i4 requisits to
ennct laws or certain reiolationa. In declaring, in
lectiaa g& of artiela 3, tbat ‘arch house maydetern~h Ji
Senator Penrose Mct44lfc. 38g4 7.
the rules of ita owa proceedings.’ th4 Comtikptton pla%aly
delegates to each ka4a4 the choice of methods for the
mo aldvanttgtcma
t use tf its fun&inns in tkt txerctae tf
the State’s ‘legialativr pewer,’ which Mr. Cooley defines
as ‘authority under tbt Ctnatitution to mtkt laws and to al-
ter and repeal them.’ Cooley’a Coaatituticnael Lfmftationa
(8th Ed.) p. 183. Having such choice of methods, each house
ia fully authorised to appoint committeca ta make invoatiga-
tiona end conduct hqtirtea tad gath4r inform&ion wtth reapcet
to tba operatioa d aubai8tiag lawa tmd tke need for their
improvemat, alttraticm, or reptal. McCuUouch v. Mary-
lnnd, 4 Wheat, 409.4 L. Ed. 579. Not only does the Con-
a~~~~~ntbcgr~oitherulc-MkLngpmer,~~rircr,
either house to namt such committe4c ea it me, deem
neceaa8ry 0r’Fbrpcr for parpoata of itw4attgation 8ad ta-
qniry, whtn loeking -‘t&e diachtrgt of ray lefitimate func-
tion’or duty of such houac. but the Constitution gota furthtr
and makea~ cenaidtrrtiea b a committet a eamditioa price-
dent to tlm lstu+zm4+ of uay hw. Gaction $7. article S.
ThtcueofhAcGNh v. DaJg?bte* (U.S.) 71 x.ar Ed
SO. ia quottd a$ followa:
*’ ‘A legislative body cauaot 18gieWe wiatly or
effectively in the 8baeaca of information raaptcthg
tht conditieaa which the l4gialetion is Mended to
affect or chaagtg and whore tht ltgialative body dtta :
au&; $aelf ptaataa tht rtquidte iaformttltt -- which
not &f ~quoatly is trut --rceourae must be Chadto
others who do poaeesa il. lbcptritnct hea taught
that mcrt rtqneata for such information often art
uaavailing~ end also that taformetion which ia w&m-
tttrtdis not alw4ya accuratt or complete; so some
mcanm of eorapubian are eaeential to obtain what ia
Senator Paaroat Mttcalfe. Page 8.
n44ded. ldthiS was true before and when the Consti-
tutfon was framed and adopted. In that period the
power of inquiry -- with enforcing process -- was re-
garded and employed as a necessary and appropriate
attribute of the power to legislate; indeed, was treated
aa inhering in it. Thus there ia ample warrant for
thinhing. aa WC do, that the conatithiod provisions
which commit th4 lc&alative function to tba two
houaea are irlcndcd to include this attribuk to the and
that the function may be effectively exercised.’ l ’
This department has given may opinions upholding the
validity. and corn truing in various reapect4, legislative resolutions
appointing committees of investigation in aid and furtherance of thair
legiaktive dutiea, among which are Opinions Nos. O-95, O-933, O-5245,
O-5067, rpd O-5558, some or all of which may be helpful to you. copi4s
of which opini,ons we band you herewith.
Afttr a xarcful study of the two resolutiona togtthe;. it
fa the opinion of this department that your commit&e does have
full authority to make the invtatigatioas mcntiontd in your inquiry
,.n;n:!:J~:*“q~~“~,~sa~~,Jo.~u :Ua&rei.tjt Of T&ha a&he R~tgeiibi&%hiid
eontrovtray th a h
ta srtctntly lriatt.
WC art cot&rained to this conclusion by tht consid&ation
of the tao rtaolutiona rS a whole, and especially by that podon of
Resolution No. 103. declaring, “Raaolvtd by the Scn~t4 of T&as,
that thia Committee be continued after adjournment of the L+ialaturt,
and that it bc directed to atndy and Investigate the situation is to free
tktboohs, and such other matters affecting the schools of T4ka as in
its wisdom it may se4 fit, and mahe ite recomm4ndt&iona theraon to th4
n4xt regular ataaion of the Ltgialaturt.”
:i
Now, undoubtedly, the Univcraity of Texas is included in the
broad Iangueg4 “the schools of Texas**. Indeed, it is the highest.
greatest. and in many rtapecta. the moat important institution of the
many schools of Texas. It is to the schools of Texas what the Con6ti-
tution is to the acta of the &gislature -- the supreme component part.
Whatever affects the Wniver~ity of Texas affects in some degree every
lesser State institution and public free school in the Stat4 -- every school.
Senator Penrose Metcalfe, Page 9.
Again, our couclu8ba ta ucentu8ted hy the expreu jmwer
eouferred by Reaalutba No. 35 u followa
‘** * land to inq u ir etuta uy other aff8ir8
ud activities of ~veramental depwtments, inott-
tutiou8, persoam, firms or c 0r p o r *tio o sof wh8t-
ever ktnd and charactor. u SucJbutivitiea in uky
way effect the dkution 8bwe 8rt for& and shall
have authority to bwesttgate 8ud iaquirc Iute much
m&era.”
The Commtttee having begun but mot h&q finished
its tuk wu by Resolutiou No. 103 codhued over with oil thd
power6 coderred by Raolutloa No. 35, and in additioa therep
the further power to lnvedgatbm “such other mattersmffectiq
the schools of Peas em in lta wlsdoza it may see fk”
4
Trusttug t&i vhat we have said suffidutl~ uswoi+
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Ytir8vorytruly* i ~1
BY
(s) Ode Spear
Aui8t8at 1,.
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APPaovEDNov. 16. lqdd I
(m) Orover Sellera
ATTORKEYQENRRALOITRXAS