July 6,~ 1972
Honorable Preston Smith Opinion No. M-1167
Governor of Texas
State Capitol Building Re: Necessity for subject matter of
Austin, Texas 78711 resolutions to be included in the
calI of a Special Session of the
Legislature in order for their
Dear Governor Smith: consideration and passage.
You ask our opinion in answer to the f,ollowing questions:
“( 1) Does the Texas Constitution (Article III,
Section 40 and Article IV, Section 15) re-
quire the Governor to enlarge the call for
the Third Called Session, 62nd Legislature,
to enable the Legislature to consider re-
solutions, the subject matter of which were
not included in the present call, particular-
ly if a point of order is raised based on this
fact?
“(2) Would different constitutional gro,unds apply
to consideration of joint resolutions Andy con-
current resolutions? ”
You state that one of the reasons for your inquiry is that,
“The question, however, has recently risen as
to whethe; or not the Legislature can consider certain
resolutions pending before each of the Houses unless
the Governor does open the Session by amending the call
to include these subjects, one of which is a request tc the
Congress of the United States to call a convention to amend
the United States Constitution to prohibit forced busing to
achieve integration of our schools. I’
-5688-
Honorable Preston Smit~h, page 2 (M,-1167)
You fwther stat:e,
“There have been numerous requests to this
office to opens the c,tirrexit Legislative Session (62nd
‘Legislature, Third Called Session) tq allow the Legis-
lature to adopt certain resolutions on various subjects.
It h,as not been considered necessary in the past to in-
clude the subject, matter of resolutions in the call for
a Special Session in order for their consideration and
passage by either or ‘both Houses of the Legislature. ”
‘Your req.uest inquires specificall:y of two Sections of our Texas C;r;ri
stitution. The first is Article III, Section 40 which restricts legislation ai
a special ses~sion:of the legislature. It reads:
“When the Legislature shall be convened in
special ses,sion, there shall be no legislation upon
subjects other than those designated in the proclama-
tion of the Governor calling such s.ession, or presented
to them by the Governor; and no such session shall be
of longer durat:ion than thirt:y days. ” (Emphasis added. )
The second is Article IV, Section 15 which requires approval of the Govcr-
nor to certain actions of the Legislature; it reads:
“Every order, resolut~ion or vote t.o which the
concurrence of both Ho,uses of the Legislature may be
necessary, except on questions of adjournment, shall
be presented to the Governor, and, before it shall take
effect, shall be approved by him; or being disapproved,~
shall be passed by both Ho-uses,” and all the rules, pro-
Visions and limit,ations shall apply thereto as prescribed
in the last preceding section in the case of a bill. ”
We must first consider the word “legislation” as it is used in Artlcli.
III, Section 40. In Ex parte Walters,
._I Ex parte Gray, 144 S. W. 531, 533. iii?
574 (Tex. Crim. 1912) the court: held that the therm “legislation” 2:~ used ir,
this Section 40 comprehends u:nly the enactment: of new laws or the an‘end-
ment or repeal of existing ones.
.-5689-
Honorable Preston Smith, page 3 (M-1167)
The term “legislation ” in constitutional provisions, so far as
our research shows, is uniformly used with, reference only to the en-
actment, amendment or repeal of laws. Commonwealth v. Griest, 46
Atl. 505 (.Pa. Sup. 1900); State v. Hyde, 22 N. E. 644, 646 (Ind. Sup. 18&9);
State v. Skeggs, 46 So. 268, 271 (Ala.Sup. 1908); and Hatcher v. Mere-
dith, 173 S. W. 2d 665 (Ky. Ct. of App. 1943).
The case of Sweeny v; King, 137 A. 178 (Pa. Sup. 1927) is directly
in point. We quote from that decision:
“At its special session held in 1926, the Legis-
lature adopted a resolution proposing an amendment to
article 15, of the state constitution, by adding a new set -
tion to it, though the subject-matter, thereof was not re-
ferred to in the Governor’s proclamation calling the ses-
sion. . . . Plaintiff’s only contention is that a resolution
for a proposed amendment to the Constitution cannot be
adopted at a special session of the Legislature, unless the
subject-matter thereof is included in the Governor’s pro-
clamation. The court below did not agree with this, and
dismissed the bill. We are in a,ccord with that conclu-
sion. ”
We are of the opinion that a resolution is not legislation; therefore,
Article III, Section 40 of the Texas Constitution does not prohibit the Legis-
lature from passing resolutions.’ The subject of a resolution need not be
set out in the Governor’s call for a special session in order for the Legis-
lamre to validly act upon the resolution.
We turn now to consideration of whether or not Article IV, Section 15
of the Texas Constitution requires that a resolution applying to Congress to
call a convention to amend the United States Constitution is required to be
presented to the Governor for his approval. In our opinion a resolution. of
the Texas Legislature making such an application to the Congress is not r‘c-
quired to be submitted to the.Governor for his approval and does not n is nut ‘an act of Icgis
lation’ within, the proper sense of the wr:rd. I’ (at, p. 250 .251. )
This opinion cites .-.-.-- Y. Smith,
Hawke
---“ 253 ‘U.S. 221 (1920~), IO A. L. R. 1504
as having esta’blished this pri,nciple; see also Wise
--_--._-- v. Chandler, IO8 S. W. Zd
1024, 1033 (Ky. Cf:. of App. 1937.)
No provisiti,n. of the Strlte ConstltJtion can contravene 3. prov~s.~or~ o:
the Federal Const1t~.&iun because of rhe supremacy clause of Arllcle Vl of I:,(.
I Federal Cunstit~utiw~. The Federal CvgslIt,titi-
vention to amend the United States Constitution even though
this subject was not included in the proclamation of the Go\ ei -
nor calling the session, and provided the resolution passes
both Houses of the Legisiature,~ no valid objection may be
made to it.
The terms “concurrent resolution” and “joint rtso
lution” are matters of nomenclature only and it is necessar.y
to look at the content of the resolution itself to determine
what constitutional provisions are applicable.
Yours very truly,
Attorne#General of Texas
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Honorable Preston Smit.h, page 8 (M,.1167)
APPROb’ED:
OPINlON COMMIT TEE
Kerns Taylor, Chairman
W. E. Allen, Co-Chairman
Houghton Brownlee
J. C. Davis
Milton Richardson
John Reeves
SAMiJEL D. MQANIEL
Staff Legal Assistant
ALFRED WALKER
Executive Assistant
NOLA WHITE
First Assistant
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Untitled Texas Attorney General Opinion
Combined Opinion