The opinion
Honorable George G. Roane opinion No. o-4609
County Attorney Re: Constitutionality of Joint Leg-
Fort Bend County islative Advisory Committee set
Richmond, Texas up by House Bill No. 284, Acts
Regular Session, 47th Legislature.
Dear Sir:
We have your letter of May 13th, requesting the opinion of
this department upon the constitutionality of the provisions of House
Bill No. 284, Acts Regular Session, 47th Legislature, the Rural Aid Ap-
propriation Bill, creating and prescribing the powers and duties of a
"Joint Legislative Advisory Comittee."
So much of the caption of House Bill No. 284 as relates to the
Legislative Advisory Committee reads as follows:
"AN ACT . . . creating a Joint Legislative Advisory
Committee; defining its powers and duties and giving it
supervisory powers for the administration of said appro-
priation and allocation; . . . giving the Joint Legisla-
tive Advisory Committee certain appellate powers and au-
thorizing said committee to employ certain persons to aid
it in carrying out its dutiesj making certain allocations
for the payment thereof; requiring said committee to make
certain investigations for recommendations to the legis-
lature; . . . providing for the duties of the State Board
of Education in the event said Joint Legislative Advisory
Committee becomes inoperative for any purpose. . . ."
The provisions of the Act itself relating to the Joint Legis-
lative Advisory Committee are as follows:
Article I, Section 1, provides in part as follows:
"Districts maintaining a school at home and having
less than an average of one enumerated scholastic per
square mile are exempt from said minimum scholastic re-
quirement and are eligible for aid for only one teacher
unless a geographical barrier necessitates the operation
of two schools for the same race in said district, such
geographical barrier to be determined by the State De-
partment of Education subject to the approval of the
Joint Legislative Advisory Committee."
Honorable George G. Roane, page 2 (0-4609)
Article I, Section 4, provides in part as follows:
"The sixty-five per cent average daily attendance shall
be determined by a rule provided therefor by,the Department
of Education with the approval of the Joint Legislative Ad-
visory Committee."
Article II provides in part as follows:
"The trustees of the districts authorized to apply for
aid under the provisions of this Act shall send to the State
Superintendent of Public Instruction on forms provided by
said authority, and which have been approved by the Joint
Legislative Advisory Committee, a list of the teachers em-
ployed in the schools, showing the monthly salaries, experi-
ewe, and training of each, together with an itemized state-
ment of all anticipated receipts and budgeted expenditures,
the length of terms, and such other information, as may be
required."
Article III, Section 1, provides in part as follows:
"Where unusual or extraordinary conditions cause an
actual increase in enrollment so that the average daily at-
tendance of the school reaches a point in excess of the net
scholastics remaining in the district after transfer, an
adjustment for the remainder of the school year as to the
number of teachers may be made by the State Superintendent
subject to the approval of the Joint Legislative Advisory
Committee, in which case said average daily attendance be-
comes the basis for the teacher-pupil quota."
Article IV, Section 1, provides in part as follows:
"Provided further that school districts whose area
does not exceed sixteen square miles and having an accred-
ited high school of sixteen units or more which serve Tea-
cher Training Institutions as practice teaching laboratories
shall upon approval of the Joint Legislative Advisory Com-
mittee receive a tuition payment of not to exceed seven dol-
lars and fifty cents ($7*50) per month for not to exceed five
months on all high school pupils enumerated in said district."
.
Article V, Section 1, provides in part as follows:
"And providing further that all school districts con-
taining one hundred (100) square miles of territory or more
may receive Two Dollars ($2) per month per pupil as trans-
portation aid when there is need shown therefor as provided
Honorable George G. Roane, page 3 (0-4609)
herein and when same is recommended by the Director of
Equalization and approved by the Joint Legislative Ad-
visory Committee."
Article V, Section 2, provides in part as follows:
"No transportation aid shall be granted for a pupil
being transported out of his home school district if two
or more receiving schools are applying for transportation
aid from such pupil's home district unless the bus routes
through such districts have been approved by the State
Department of Education, and such approval confirmed by
the Joint Legislative Advisory Committee."
Article V, Section 3, provides in part as follows:
"A school requesting transportation aid on a stu-
dent who is not an approved scholastic of his home dis-
trict, shall list such student separately on the appli-
cation, giving such information as may be requested by
the Department of Education and the Joint Legislative
Advisory Committee. The Department of Education, sub-
ject to approval of the Joint Legislative Advisory Com-
mittee, shall formulate rules to determine the eligi-
bility of students who are not approved scholastics of
their home district."
Article VI provides in part as follows:
"It shall be the duty of the State Superintendent
of Public Instruction, and he is hereby authorized, to
take such action and to make such rules and regulations
not inconsistent with the terms of this Act as may be
necessary to carry out the provisions and intentions of
this Act, subject to the approval of the Joint Legisla-
tive Advisory Committee created in this Act, and for the
best interest of the school for whose benefit the funds
are appropriated. . . . In the event the appropriations
and allocations of aid made herein are insufficient to
pay the total of all applications showing need, the
State Superintendent and the Director of Equalization
subject to the approval of the Joint Legislative Ad-
visory Committee shall reduce all applications pro rata
so as to bring aggregate of all applications approved
within the appropriations and all allocations herein
made, and in order to accomplish this, said Director
shall reduce the authorized expenditures of all schools
applying for salary aid pro rata; shall lower the tui-
tion rate of all schools applying for tuition pro rata;
Honorable George G. Roane, page 4 (G-4609)
and decrease the transportation aid of each scholastic
transported pro rata, so as to bring the total salary
aid, tuition aid and transportation aid within the al-
locations herein eet forth. Appeals from the decision
of the State Superintendent shall be made to the Joint
Legislative Advisory Committee for adjustments and the
decisions of said Committee shall be final."
Article VIII, Section 1, provides in part as follows:
"For the school year 1941-42,upon the agreement
of the board of trustees of the districts concerned or
on petition signed by a majority of the qualified vo-
ters of the district and subject to the approval of the
county superintendent, state superintendent, and Joint
Legislative Advisory Committee, the trustees of a dis-
trict which may be unable to maintain a satisfactory
school may transfer entire scholastic enrollment, or
any number of grades thereof, to a convenient school
of higher rank, and in such event, all of the funds of
the district, including the State aid to which the dis-
trict would otherwise be entitled under the provisions
of this Act, or such proportionate part thereof as may
be necessary shall be used in carrying out said agree-
ment; provided that no aid shall be allowed for teachers
that are not actually employed in the contracting schools."
Article IX, Section 1, provides in part as follows:
"Warrants for all money granted under the provi-
sions of this Act shall be approved and transmitted by
the State Superintendent of Public Instruction to treas-
urers of depositories of school districts to which aid
is granted in the same manner as warrants for state ap-
portionments, are not transmitted. Initial payment of
not more than 56 of salary aid, tuition aid, and trans-
portation aid may be made by the State Superintendent of
Public Instruction after September 1st of each year of
the biennium as soon as a basis for payment can be de-
termined, and approved by the Joint Legislative Advisory
committee.... Final payment by warrant of the total amount
allotted to any one school shall then be made not later
than June lst, or as early as possible thereafter, after
the approval and upon the order of the Joint Legislative
Advisory Committee, except high school tuition."
Article XII provides as follows:
"There is hereby provided a special Joint Legislative
Advisory Committee composed of five (5) members of the
. -
Honorable George G. Roane, page 5 (0-4609)
Senate to be appointed by the President of the Senate and
five (5) members of the House of Representatives to be ap-
pointed by the Speaker of the House of Representatives.
Said Committee shall promptly organize and select from its
membership a chairman and a secretary and keep a permanent
record of its proceedings and shall vote as a unit on all
propositions coming before it for consideratioa. Said Com-
mittee shall concur with the State Superintendent of Public
Instruction in regulations and interpretations governing
the administration of this Act. Said Committee shall also
receive and adjust appeals from the decision of the State
Superintendent. Said Committee is also directed to study
the school laws of this State in order that said laws may
be recodified. Said members are to be reimbursed for their
actual and necessary expenses from the Contingent Fund of
the House of Respective members for the actual and neces-
sary expenses in performance of their duties as members of
said Committee on approval of the Chairman of said Joint
Advisory Committee and the Chairman of the respective Con-
tingent Expense Committee of each House, not to exceed Five
Thousand, Five Hundred Dollars ($5,500)for the first year
of the biennium and Two Thousand, Five Hundred Dollars
($2,500) for the second year of the biennium, provided that
any unexpended balance occurring at the end of the fiscal
year 1941-42 in any allocation may be transferred and added
to the appropriation for the year ending August 31, 1943.
Should for any reason the Joint Legislative Advisory Com-
mittee fail or refuse to perform the duties herein imposed
upon it, or should the duties, powers, and functions of said
Joint Legislative Advisory Committee become inactive or un-
enforceable, then, and in that event, such duties as are
herein imposed on said Joint Legislative Advisory Committee
shall be performed by the State Board of Education the sane
as if said Committee had not been created or authorized."
Article XIII, Section 1, provides:
"For the purpose of promoting the equalization of edu-
cational opportunities afforded by the State of Texas to all
emuuerated scholastics within the State as herein provided,
and for the purpose hereinabove set out, there is hereby ap-
propriated out of the General Revenue Fund of the State of
Texas not otherwise appropriated, the sum of Eight Million,
Four Hundred Forty-four Thousand, One Hundred and Ninety
Dollars ($8,444,lp0)for the school year ending August 31,
1942, and Eight Million, Four Hundred Forty-four Thousand,
One Hundred and Ninety Dollars ($8,444,190) for the school
year ending August 31, 1943, or so much thereof as may be
necessary for the biennium ending August 31, 1943, to be
Honorable George G. Roane, page 6 (0-4609)
allocated and expended under the provisions,of this Act by
the State Superintendent of Public Inetructlon through the
Director of Equalization in the State Department of Educa-
tion and under the supervision of the Joint Legislative Ad-
visory Corsnitteecreated herein."
Article XIII, Section 2, provides:
"It is herein specifically provided that out of the
money appropriated for each school year of the biennium
the Sum of Four Million, Three Hundred and Fifty Thousand
Dollars ($4,350,000) is hereby set aside for salary aid;
Nine Hundred and Twenty Thousand Dollars ($920,000) for
High School tuition; Three Million, Thirty-nine Thousand
and Twenty Dollars ($3,039,020) for transportation aid;
One Hundred Thirteen Thousand, Nine Hundred and Seventy
Dollars ($113,970) for the administration of this Act as
provided herein; Eight Thousand, Two Hundred Dollars
($8,200)for the operation of the school plant division
in the Department of Education, as permitted, authorized,
and appropriated in the general Departmental Bill, for
the biennium ending August 31, 1943, Five Thousand Dol-
lars ($5,000) for the Census Division In the Department
of Education to be expended by the Director thereof on
order of the Joint Legislative Advisory Committee for
checking and approving school census rolls in seasonal
labor not to exceed forty cents (40#) per hour therefor,
Eight Thousand Dollars ($8,000) for the purpose of em-
ploying an auditor and for such other and necessary ex-
penses incident to the duties of the Joint Legislative
Advisory Committee. Such auditor shall not receive more
than Three Thousand, Six Hundred Dollars ($3,600) per
year out of the sum hereby allocated. The auditor and
other authorized employees shall be appointed by the Com-
mittee and their salary and necessary expenses be paid on
order of said Committee and all such employees shall be
under the direct supervision of aaid Committee or its
order. Each of the above named allocations is for each
year of the biennium.
"Any unexpended balance under either of the above
allocations at the end of the first year of the biennium
shall be transferred by order of the Joint Legislative
Advisory Committee to any allocation herein created and
set up."
So much of the Act as creates the "Joint Legislative Advisory
Committee" for the purpose of studying the school laws of this State
in order that said laws may be recodified is clearly constitutional.
Honorable George G. Roam, page 7 (0-4609)
Terre11 v. King, 118 Tex. 237, 14 S. W. (2d) 786. The remaining provi-
sions of the Act, however, with reepect to the Joint Legislative Advisory
Committee, the effect of which are to impose upon said Committee of the
Legislature the authority to administer the law, are unconstitutional
for the reaaous to be hereinafter stated.
Article II, Section 1, of the Constitution of the State of
Texae, provides as follows:
"The power6 of the Government of the State of Texae shall
be divided into the 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, or COlleCtiOn of persons, being of one of these de-
partments shall exercise any power properly attached to either
of the others, except in the instances herein expressly per-
mitted."
Article 3, Section 1, of the Constitution of the State of Texas,
provides:
"The legislative power of the State shall be vested in a
Senate and House of Representatives, which together shall be
styled 'the Legislature of the State of Texas."'
Of Article 2, Section 1, of the Constitution of Texas, the
late Chief Justice Cureton, in the case of Langever v. Miller, 76 S. W.
(2~3)1035, stated:
"The origin of this provision is very well known. It
first found expression, at least with clarity and precision,
in the writings of Montesquieu with which the members of the
Federal Constitutional Convention of 1787 were familiar,
early appeared in the organic laws of the some of the states,
and was adopted as a basic principle inhe Constitution of
the United States in 1.787, from which it entered into the
Constitutions of nearly all the States, including Texas,
both as a republic and as a state. Montesquieu's Spirit of
Laws, (Collier's Edition) pages 151-152; 12 Corpus Juris,
pages 802, 803, section 234; Sayles Constitutions of Texas,
post.
"Under this division of governmental power it is now au
established and fundamental principle of constitutional law
that the executive cannot exercise either judicial or legis-
lative authority; the judicial department cannot be clothed
with executive or legislative power; and the legislative
'magistracy' cannot exercise the functions of either the
.-
Honorable George G. Roane, page 8 (O-4609)
Executive or the Judicial Departmenta. 12 Corpus Juris,
page 802, eection 234, et seq. Corpus Jurie, supra, de-
claree: 'The separation of the powers was believed by
Montesquieu, by Blackstone, and by American Conetitution
makers of the eighteenth century to be one of the chief
and most admirable characteristics of the English Consti-
tution. '
"A principle which is the very foundation of the
government of the United States and of the several states
must be deemed one essential to the preservation of the
rights and liberties of the people, and should be thought-
fully and faithfully observed by all clothed with the pow-
ers of government.
"So important is this division of governmental power
that it was provided for in the first section of the first
article of the Constitution of the Republic of Texas, and
alone it constituted article 2 of each succeeding Consti-
tution. Sayles' Texas Statutes (Constitutions) Ed. of
1888, pp. 188, 228, 302, 399, 508."
It is the function of the legislative branch of the government
to make the laws; it is the function of the executive branch of the gov-
ernment to administer and execute those laws. In the statute under con-
sideration, the Legislature of the State of Texas has undertaken not only
to declare what the law shall be, which is clearly its prerogative, but
has also undertaken to clothe a portion of the membership of the Legis-
lature, the Joint Legislative Advisory Committee, with the authority
to execute and administer the law passed by the Legislature. Under
Article 2, Section 1, of the Constit,utionof the State of Texas, the
Legislature is powerless to clothe itself, or a portion of it5 members,
with executive authority.
The following language, quoted from the case of People v. Tre-
maine, (New York) 168 N. E. 822, has application to the situation under
consideration:
"The Legislature has not -de only a law -- i.e., an
appropriation -- but has made two of its members ex officio
its executive agents to carry out the law; i.e., to act on
the segregation of the appropriation. This is a clear and
conspicuous instance of an attempt by the Legislature to
confer administrative power upon two of its own members.
It may not engraft executive duties upon a legislative of-
fice and thus usurp the executive power by indirection.
Springer v. Phillipine Islands, 277 U. S. 189, 48 SUP. Ct.
480, 72 L. Rd. 845.
Honorable George G. Roane, page 9 (0-4609)
"Should the question arise whether the appointments
under consideration are legislative or admini5trative, a
dilema presents itself either side of which is fatalto
the contention of the reepondent. If they are legisla-
tive in character, the appointment amounts to a delega-
tion of the legislative power over appropriations. The
Legislature cannot secure relief from its duties or re-
sponsibilitieB by a general delegation of legislative
power to someone else. People v. C. Krinck Packing Com-
pany, 214 N. Y. 121, 108 N. E. 278, Anno. Cas. 1916B,
1051. The power to itemize legislative appropriations
is the legislative power which it may exercise if it sees
fit as long as the matter is in its hands. If the power
to approve the segregation of lump Bum appropriations may
be delegated to anyone, even to one or two members of the
Legislature, it necessarily follow6 that the power to seg-
regate such appropriations may also be conferred upon such
delegates. The conclusion would then inevitably be that
the Legislature could make lump sum appropriations and
delegate the power to two of its members to segregate the
same, not only within a department but among departments.
To visualize an extreme cazle,one lump Bum appropriation
might be made to be segregated by the committee chairmen.
Such a delegation of legislative power would be abhorent
to all our notiona of legislation on the matter of ap-
propriations. It would amount to a casting on others of
a great measure of legislative reBponsibility assumed by
the members themselves by their oath faithfully to dis-
charge the duties of their office. If, on the other hand,
the power is administrative, it has no real relation to
legislative power. The head of the department does not
legislate when he segregates a lump sum appropriation.
The legislation is complete when the appropriation is made.
The Legislature might make the segregation itself, but it
may not confer administrative powers upon its members with-
out giving them, unconstitutionally, civil appointments to
administrative offices. It might by general law confer the
power of segregation or approval of segregation upon any
one but its own members subject to the provisions of the
Constitution (Article~5), hereinafter discussed, if appli-
cable, but the Constitution (Article 3, Section 7, supra)
makes its own members ineligible to such an appointment.~
"It follows that so much of the appropriation bills
in question as confers powers on the legislative chairman
to approve segregations is unconstitutional and void."
See also the caBe of Stockman v. Leddy, 129 Pac. 220.
- ., .
Honorable George G. Roane, page 10 (0-4609)
Though 50 much of the Act as purport5 to confer upon the Joint
Legislative Advisory Committee power to execute and administer the pro-
visions of the Act is unconstitutional, nevertheleee those duties, powers,
and function5 of the Joint Legislative Advisory Committee do not wholly
fail. This is 50 because the Legislature anticipated that the attempt
to confer such authority upon the Joint Legislative Advisory Committee
would probably violate the Constitution of the State of Texas, and, in
recognition of that, provided in Article XII of the Act that should the
duties, powers and function5 of the Joint Legislative Advisory Committee
become inactive or unenforceable, then and in that event, "such duties
as are herein imposed on said Joint Legislative Advisory Committee shall
be performed by the State Board of Education the same as if said Commit-
tee had not been created or authorized."
It follows, therefore, from what has been said above, that
the duties, powers, and functions of the Joint Legislative Advisory Com-
mittee, save and except the duty imposed upon it to study the school
laws of this State in order that said laws may be recodified, devolve
upon and are to be executed by the State Board of Education the same
as if the Joint Legislative Advisory Committee had not been created or
authorized by the Act.
We trust that the foregoing sufficiently answers your inquiry.
Your5 very truly
APPROVED JDR 12, 1942 ATTORNEY GENERAL OFTEXAS
Id Gerald C. Mauri
By /s/ R. W. Fairchild
ATTORNEY GENERAL OF TEXAS R. W. Fairchild
Assistant
RWF:db:lm
APPROVED
OPINION
COMMPPIEE
BY /s/ BWB
CHAIRMAN