Untitled Texas Attorney General Opinion ( 1939 )

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OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AVmN
Hon. Aug. Celaya, Chairman
House InvestigatingCommittee
Austin, Texas
Dear Sir:
mmittee for
revenues.
Your request for
position has been received
clearly to answer your qu 1 divide it into the
following parts:
Does the Eous entatives of the State
of Texas have th ch a committee as is
set up by House 001 (A copy of said
resolution is at of this opinion.)
the power to issue
process for wi
, upon disobedienceto any
attachments?
ttee have power to punish for
confem?? ( \
g the first question,it should be point-
to investigatetax evasion for the pur-
ret-hand informationupon whioh to base
and adequate” tax laws is within the
resolution. In Terre11 vs. Icing,
14 S. W. (213)786, Justice Greenwoodmakes the following
statement in regard to the power of either House of the Leg-
islature to establish such investigatingcommittees:
Hon. Aug. Celaya, Page 2.
"In declaring,in Section 11 of Artiala 3
of the Constitution,that each House may determine
the rules of its own proc,eedings,the Constitution
plainly delegates to each House the choice of
methods for the most advantageoususe of its
function in the exercise of the State legislative
power, which Mr. Cooley defines as *authority
under the Constitutionto make laws and to alter
and repeal them.' Cooley's ConstitutionalLimita-
tions, 8th Ed., p. 183."
Continuing,Judge Greenwood said:
*Having such ohoice of methods, eaah House
is fully authorized to appoint committees to make
investigations.andconduct inquiries and gather
informationwith respect to the operation of sub-
sisting laws and the need for their improvement,
or alteration,or repeal. McCullough va. Maryland,
4 Wheat. 4C9, 4 L. Ed.'579. Not only does the
Constitutionin the granting of the rille-making
w-r, authorize either House to name such aom-
mittees as it may deem necessary or proper for
the purposes of,investlgationand~inquiry,when
looking to the discharge of any legitimatetuna-
tion or duty or euch House, but the Constitution
goes further and makes the considerationby a
committee a condition precedent to thenenactment
of any law. Section 37, Article 3, Constitution
of the State of Texas."
Since each House continues tn existence after the
end of a legislative session, asdetermined in Ferguson vs.
Maddox, 114 Tex. 93, 263 S.W. 880, and since each House is
invested with independentresponsibilities~andduties,'and
is the sole judge of its own rules of procedure,we think
the power of each House or of the Legislaturecannot be
denied to name committees to sit either during sessions of
the Legislatureor in recess for the purpose of gathering
informationconsideredrequisite or helpful to enlightened
or efficient legislation. A legislativebody cannot legis-
late wisely or effectively in the absence of information
respecting the condi'tionswhich the legislationis intended
to affect or change; and where the Legislaturedoes not ft-
selt.possessthe requisiteinformation,reaoursemust be had
t? others who do possess it. Experience has taught that
-f .
Hon. Aug. Celaya, Page 3
mere requests for such information often are unavailing,and
also that informationwhich is volunteeredis not always accu-
rate or complete; so some means 0r acmpulsionare essential
to obtain what is needed. Again quoting frau Terre11 vs.
ging, supra:
DOur conclusionthat the legislature,or
either house, possesses the authority to order
committee investigationsand inquiries,in order
to get inrormationnecessary to the right use
of legislativelpower,is but an applicationof
the principle often recognized by this court
that a constitutionalgrant of authority includes
*authorityto do all things necessary to accom-
plish the objeat of the grant.'"
Thererore,.it would logically follow that if the
House had the power to establish this committee,certainly
the committeewould.have sufficient authority to oarry on,
in an adequatemanner, its investigation. This deduction
forms the basis for~the answer to question No. 2 in regard
to the committee'spower to Issue process. The following
quotation taken from 65 P.L.R. 1518 clearly states the
law in this regard:
"It has been consistentlyheld that either*
branch of the legislativebody, or one of its com-
mittees, has the power to summon persons who are
not members to attend as witnesses any meeting
which it had the power to hold."
There seems to be no doubt that this general rule
is followed'inTexas. Justice Greenwood, in Terre11 vs. King,
Bupra, explained this power of the committee by the following
reasoning:
"Each house must also be allowed to proceed
in its own way in the collection of such intorma-
tion as may seem important to a proper discharge
of its function; and whenever it deems desirable
that witnesses should be examined, the power and
authority to do so is very properlyref'erredto
a committee,with any power short of final legis-
lative or judicid action as may deem necessary
or expedient in the particular case.'
Justice Greenwood further substantiateshis rea-
soning by quoting the following from &Grain vs. Daugherty,
273 U.S. 135, 71 L. Ed. 500, 50 A.L.R. 1:
. .
Hon. Aug. Celaya, Page 4
"In an opinion 0r great rorce and clarity,
delivered by Mr. Justice Van Devanter,wherein
the Supreme Court, in reversing the order of the
court below, upheld the power of Congress and of
either House under aonstitutionalprovisions al-
together similar to those in.tha Constitutionot
Texas, to appoint committeesand to compel wit-
nesses to appear and testify before such committees,
whenever deemed necessary or proper in the effi-
cient exercise 0r congressionallegislative power.R
The answer to questionNo. 3 is closely interwoven
with the subjectmatter and discussion of question No. 2.
It logically follows that if the committee has the power to
Issue a process for witnesses, books, records, etc;, it must
likewise have the power to enforce this process. It would
therefore follow that the committee set up by House Simple
Resolution 300 would have the power upon disobedienceof any
subpoena to issue an attachmentto secure the presence of a
witness before that committee. This exact situation was re-
viewed by the Supreme Court of the United States in the case
of M&Grain vs. Daugherty,supra, which tact6 were substan-
tially as follows:
The brother or rormer Attorney General Daugherty
refused to appear and testify before a committee of the United
States Senate authorizedto sit after adjournmentof Congress
to obtain lniormationfor the purposes of future Federal
legislation. He was thereuponattached on a warrant auth-
orized by the Senate to compel his appearanceand testimony.
Onzhabeas corpus, he was ordered discharged by the United
States District Court. Artier"earnest and prolonged oon-
sideration,Wthe appeal from the order of the District Court
was determined by the Supreme Court of the United States
wherein the Supreme Court, "in reversing the order of the
court below, upheld the power of Congress and of either Rouse,
under constitutionalprovisions altogethersimilar to those
in the Constitutionor Texas, to appoint committees and to
compel withesses to appear and testify before such committees,
whenever deemed necessary or proper in the erficient exeraise
of congressionallegislativepower."
Power is given each branch of the Legislatureby
the Constitution,Article 3, Section 15, to punish anyone
not a member for ob~structingany of its proceedings. "Ob--
struttingits proceeding"embraces not only things done ln
the presence of the Legislature,but those done in disobed-
ience of a Committee.
Hon. Aug. Celays, Page 5
-'C. J. Morrow, in the ease Ex Parte Youngblood,251
S. W. 509, stetes the law in this regard in the following lan-
gua ge :
.wWe have searched throught'theConstitution
in vain for anything that expressly permits a
committee of the Legislature,0r;any collection .
of persons belonging to the Legislativedepart-
ment, to imprison ior contempt. The only refer-
ence to the question of aontempt as related to
the Legislaturein any way is that,containedin
Section 15, Artiole 3 of the Constitution,which
in terms *expresslypewits e,achHouse of the
Legislatureto aprison for contempt ror not ex-
ceeding (8 hours at any one t.ime.
"In our opinion, under our Constitution,
while the Legislaturemay function through a com-
mittee, and, because of the refusal of any per-
son to answer .properinquiries before the committee,
the matter may be reported to the House appointing
the committee ror its action, and said House of the
Legislaturemay, by appropriateproceeding, adjudge
such person in contempt and he may be thereafter
imprisonedfor the time specified by the Constitu-
tion for such aontempt, the committee itself has no
such power because of the rorbiddanceof the Con-
stitution."
In conclusion,may.1 sum up the discussionof the
.powersof this committee,in the following manner: The Leg-
islature has the power to set up such a committeeas is es-
tablished by House Simple Resolution 300. and such committee
has the power to issue subpoenas and attachments for witnesses,
books and records. However, if a witness refused to comply
and thus were *obstruatingthe proceedi@ within the mean-
ing of our Constitution,such contempt oould not be punished
by the committee acting as a committee, but only by the
House as a whole.
We hope the above discussion has answered the
questions you have in mind in regard to the authority and
power of your committee. If any further questions arise,
please ref'erthem ta us.
Sincerely yours
FBI:pbp
ATTORNEY GENERAL OF TEXAS
APPROVED NOV 21, 1939
(8) Gerald C. Mann
ATTORNEY GENERAL OF TEXAS BY
Frederik B. Isely
Assistant
. APPROVED