Attorney General Opinion WW-0358

February 3, 1958 Honorable Wm. J. Burke Executive Dlreqtor State Board of Control Austin, Texas Dear Mr. Burke: Opinion No. ~~-358 Re: Authority of the 36th lJ~visloq Association of the Texqs Vatlopal Guard to erect a Monument as a memor$al to the Members of 'the 36th Division' under the provisions of Senate Bill 437 of the 55th Legislature and House Concurrent Resolution 76 of the 54th Legislature. You have requested an opinion from this office concerning the interpretation of House Concurrent Resolution 76 passed by the 54th Legialature,and its present validity since the passage of Senate Bill 437 passed by the 55th Legis- lature. House Concurrent Resolution 76, whloh was passed by the 54th Legislature, provided In part as follows: "RRSOLVRD by the House of Representatives of the State of Texas, the Senate concurring, that the 36th Division Assoaiatlon be and it Is hereby authorized to erect on the Capitol grounds in Austin, a suitable monument as a memorial to the members of the 36th Division, Texas Natgonal Guard, who served during World Wara 5 and II, the monument to be created under the supervision of and at a location seleated by the State Board of Control, without any cost to the State of Texas." You are concerned with whether or not this resolu- tion is still in force and effect since the passage of Senate Bill No. 437 passed by the 55th Legislature, codified as Article 861b, Vernon's Texas Penal Code, and which Aat reads in part as follows: -- Honorable Wm. J. Burke, Page 2 (~~-358). "Section 1. It shall be unlawful, without the prior express consent of the Legislature, for any officer of this state or any employee thereof or any other person to construct, build, erect or maintain any building, structure, memorial, monument, statue, concesslon or any other structure including creation of parking areas or the laying of additional paving of the grounds that surrounded the State . . . on Zny Capitol ,, " . . . "Sec. 5. All laws or parts of laws conflict herewith are repealed." in Article 861b further provides that It shall be a misdemeanor for any officer or employee of this State or other person to violate Section 1 of'the above mentioned article. You have propounded to this office the following questions to be answered: "(1) Since the authority was granted by resolution, Is the authority for the erection of the monument to the 36th Division valid with the passage of S.B. #437? "(2) Since the passage of S.B. #k37 which became effective Way 31, 1957, provided for,prior express consent, should the 36th Division of the Texas National Guard renew its request before the Legislature Andy obtain a new authorization? "(3) Since it appears that it will be some time before the 36th Division monument plans are ready for examination and the final determination of the site made, for what approximate period is the authority granted by resolution or other action of the Legislature considered effective and/or valid as it relates to the erection of monuments, etc., on the Capitol grounds? Honorable Wm. J. Burke, Page 3 W-358). ” 4 $4 Would the Board of Control be in riola- tion 0 he provisions of S.B. ,#37 to permit the tentative selection of a site on the Capiol ! grounds with the speelfic understanding w th the 36th Division that final approval was not to be granted for the permanent use of any site selected until after the approval of plans and specifica- tions by the Board of Control?' It,was the purpose of the Legislature, in passing Senate Bill 437, to prevent haphazard construction of buildings, monuments and other edifices on the Capitol grounds without prior approval of the,Leglslature, in order that the Capitol grounds might retain their attractiveness. It is the opinion of this office that Rouse Concur-~ rent Resolution 76, passed by the 54th Legislature, meets the neoesaary requirements as set out in Senate Bill 437. In the situation you pose, the consent haa already been obtained from the Legislature. It is olearly the intent of the Legis- lature that consent of the Legislature be the only requirement necessary before the erection of any typeof structure, and since the 36th Division has already obtained consent, it would be foolish to require them to go through the proaedure again. Further, It is the opinion of thia office that the resolution passed by the 54th Legislature Is still in force and effect and that the Board of Control has authority under that resolution to permit the tentative selection of a site on the Capitol ground5 by the 36th Division Association of the Texas National Guard. The Board of Control, after the selection of the site, still has the right to approve the final plans and specifications of the monument to be erected by the Association. SRMMARY Since the 36th Division Association of the Texas National Guard has obtained legislative consent to construct a monument on the Capitol Honorable Wm. J. Burke, Page 4 (~~-358). grounds, the requirement set out in Artiale 861b of Vernon's Texas Penal Code has been met. Yours very truly, WILL WILSON Attorney General of Texas - Llnward Shivers Assistant LS:Jl APPROVED: OPINION COMMITTEE Geo. P. Blaakburn, Chairman Jack Goodman J. Mark McLaughlin Ralph R. Rash REVIEWED FOR THE ATTORNFiY GENERAL BY: W. V. Geppert