Does a Texas state agency have to build a monument that a legislative resolution authorized?

Plain-English summary

In 2007 the Texas Legislature passed House Concurrent Resolution 111, which authorized the State Preservation Board and the Texas Facilities Commission to approve and permit a privately funded monument on the Capitol grounds honoring the Bill of Rights. A preliminary schematic was presented to the Commission in 2009, but the Commission never gave final approval, the monument's funding ran out that same year, and the plan lay dormant until 2016. In the meantime the Legislature directed the Commission to prepare a Capitol Complex Master Plan, adopted in 2016 and updated in 2018, which set out monument guidelines and proposed sites. The Commission's executive director, Mike Novak, asked the AG three questions about where things stood.

The first question turned on a Board rule providing that the legislative authority for a monument "should be reviewed" at the end of a five-year period unless a construction permit had issued. The AG explained that this rule does not impose a deadline on an organization to submit a proposal. It instead tells the Board to confirm, before approving any monument, that the Legislature has not pulled its authority. More to the point, the resolution itself used the word "authorize," which courts read as permissive, creating discretion rather than a mandatory duty. The AG contrasted this with statutes where the Legislature wrote that the Board "shall establish" a particular monument. And because HCR 111 was a concurrent resolution rather than a bill, it could express the Legislature's will but could not be given the effect of law. The Texas Constitution draws a clear line between laws and resolutions. So the Board and the Commission had discretion about whether to approve and permit the monument at all.

On the second question, the resolution "encouraged" the agencies to place the monument on the Supreme Court Plaza unless a more appropriate site became available. The AG concluded the word "encouraged" did not create a mandatory duty to reserve that site to the exclusion of other applicants; it left the location to the agencies' discretion, subject to state law and their own rules.

On the third question, the AG concluded that the State Preservation Board, not the Facilities Commission, holds the review and approval authority over monument site selection and construction in the Capitol Complex. The Commission's role is to help define potential locations within the master plan. The AG found no separate authority for the Commission to approve, or conditionally approve, a site for a specific monument.

Currency note

This opinion was issued in 2020. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule mentioned here.

What the opinion meant for those who asked

For the Texas Facilities Commission and the State Preservation Board, the opinion confirmed they were not locked into a 13-year-old monument proposal. At the time, the reading was that HCR 111 authorized but did not compel the monument, so the agencies could decide whether to accept any proposal and where, if anywhere, to put it. For the private organization that had championed the monument, the opinion meant the 2007 resolution gave it no enforceable right to approval or to a reserved site, especially after the Capitol Complex master plan had changed in the intervening years. For anyone tracking how Texas treats legislative resolutions, the opinion restated a basic structural point: a concurrent resolution can voice the Legislature's preference, but only a bill makes law, so an agency's duty to act has to come from a statute, not a resolution's "authorize" or "encourage." The opinion also drew a clean division of labor: site approval power sat with the Preservation Board, and the Commission could not approve a monument site on its own.

Common questions

Q: Did the Legislature order Texas to build a Bill of Rights monument?
A: No. The AG explained that HCR 111 used the word "authorize," which courts read as permissive. It gave the State Preservation Board and the Facilities Commission discretion about whether to approve the monument, not a command to build it.

Q: Why doesn't a concurrent resolution carry the same weight as a statute?
A: The AG pointed to the Texas Constitution, which provides that "no law shall be passed, except by bill." A concurrent resolution may express the Legislature's will, but, as the courts have put it, it cannot be given the effect of law.

Q: Did the five-year review rule kill the monument's authorization?
A: Not by itself. The AG read Board Rule 111.25(c)(8)(M) as directing the Board to review the legislative authority after five years to confirm it had not been revoked, not as a deadline for an organization to file a proposal.

Q: Could the Facilities Commission approve a monument site on its own?
A: No. The AG concluded that review and approval authority over monument sites in the Capitol Complex rests with the State Preservation Board. The Commission helps define potential locations but has no separate authority to approve or conditionally approve a site.

Background and statutory framework

The request concerned House Concurrent Resolution 111, adopted by the 80th Legislature in 2007 (2007 Tex. Gen. Laws 6022), which authorized a Bill of Rights monument in the Capitol Complex. The AG relied on the permissive-authorization principle from Gutierrez v. Collins and Pablo Rion y Asociados, S.A. de C.V. v. Dauajare, and on the law-versus-resolution distinction drawn from Texas Constitution article III, sections 30 and 34, as explained in Commercial Standard Fire & Marine Co. v. Comm'r of Ins. and Conley v. Tex. Div. of United Daughters of the Confederacy. The framework for monument approval came from Government Code chapter 443 (sections 443.007(a)(4), 443.0152(a), and the contrasting mandatory language of section 443.01525) and from State Preservation Board rules at 13 Texas Administrative Code section 111.25(c). The Capitol Complex Master Plan duty came from Government Code section 2166.105(a), the Capitol Complex definition from section 411.061(a)(1), and the Commission's renaming from section 2152.0011(a).

Citations and references

Resolution, constitutional, and statutory provisions:

• Tex. H.R. Con. Res. 111, 80th Leg., R.S., 2007 Tex. Gen. Laws 6022
• Tex. Const. art. III, § 30 (no law except by bill); art. III, § 34
• Tex. Gov't Code § 443.007; § 443.0152; § 443.01525
• Tex. Gov't Code § 2166.105; § 411.061; § 2152.0011
• 13 Tex. Admin. Code § 111.25(c)

Cases:

• Gutierrez v. Collins, 583 S.W.2d 312 (Tex. 1979)
• Pablo Rion y Asociados, S.A. de C.V. v. Dauajare, 495 S.W.3d 494 (Tex. App.-Houston [14th Dist.] 2016, no pet.)
• Commercial Standard Fire & Marine Co. v. Comm'r of Ins., 429 S.W.2d 930 (Tex. App.-Austin 1968, no writ)
• Conley v. Tex. Div. of United Daughters of the Confederacy, 164 S.W. 24 (Tex. App.-Austin 1913, writ ref'd)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0314
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2020/kp-0314.pdf

Original opinion text

June 10, 2020

Mr. Mike Novak
Executive Director
Texas Facilities Commission
Post Office Box 13047
Austin, Texas 78711-3047

Opinion No. KP-0314

Re: Authority of the Texas Facilities Commission and the State Preservation Board in relation to a Bill of Rights monument authorized by House Concurrent Resolution No. 111, adopted by the Eightieth Legislature (RQ-0322-KP)

Dear Mr. Novak:

You ask three questions related to a proposed monument within the Capitol Complex dedicated to the Bill of Rights.[1] In 2007, the Legislature passed a concurrent resolution authorizing the State Preservation Board ("the Board") and the Texas Facilities Commission ("the Commission") "to approve and permit the construction of a monument on the Capitol grounds or adjacent state property commemorating the Bill of Rights of the United States Constitution." Tex. H.R. Con. Res. 111, 80th Leg., R.S., 2007 Tex. Gen. Laws 6022. You explain that the monument "was to be entirely privately funded by the organization MyBillofRights.org." Request Letter at 1. You further explain that "a preliminary schematic for the memorial site was presented" to the Commission in July 2009, but the Commission has not granted final approval of any plan. Id. at 2.[2] Briefing submitted in response to your request explains that funding raised for the monument was exhausted in 2009, and the plan lay dormant until 2016.[3] During that intervening time, the Legislature directed the Commission to prepare a Capitol Complex Master Plan. See TEX. GOV'T CODE § 2166.105(a).[4] That plan, first adopted in 2016 and updated in 2018, includes extensive monument guidelines and proposals for specific sites.[5] The intervening time and the changes to Capitol Complex planning have resulted in multiple questions about the status of the Bill of Rights monument authorized in 2007.

In your first question, you ask the following:

Because more than 5 years have elapsed since H.C.R. No. 111 (80R), and as no appropriate construction permit was issued during those first five years, does this failure to act on the part of an organization to submit a preliminary proposal for review and approval, as stated by [Board] rule 111.25(c)(8)(M), allow both the [Board] and [Commission] discretion in determining whether to accept a proposal from an organization if now filed?

Request Letter at 4. Board Rule 111.25(c)(8)(M) provides:

The legislative authority for a memorial and/or monument should be reviewed at the end of the five-year period beginning on the date of the enactment of such authority, unless an appropriate construction permit by the office of the State Preservation Board for the work has been issued within that period.

13 TEX. ADMIN. CODE § 111.25(c)(8)(M) (2019) (State Preservation Board, Memorials/Monuments on the Capitol Complex). Rule 111.25(c)(8)(M) does not require an organization to submit a preliminary proposal for review and approval within five years of the enactment of legislative authority. See id. It instead requires the Board, before approving any monument in the Capitol Complex, to ensure the Legislature has not revoked its authority to do so. See id. However, the language of House Concurrent Resolution 111 itself provides the Board and the Commission discretion to determine whether to accept any given proposal, and it requires both entities to consider state law and their own rules before approving construction of the monument. The exact language of the Resolution provides:

RESOLVED, That the 80th Legislature of the State of Texas hereby authorize the State Preservation Board and the Texas Building and Procurement Commission, subject to state law and rules of the board and commission, to approve and permit the construction of a monument . . . commemorating the Bill of Rights of the United States Constitution.

Tex. H.R. Con. Res. 111, 80th Leg., R.S., 2007 Tex. Gen. Laws 6022 (emphasis added).[6] Courts consistently construe the word "authorize" as permissive, creating a discretionary function rather than a mandatory duty. See Gutierrez v. Collins, 583 S.W.2d. 312, 314 (Tex. 1979); Pablo Rion y Asociados, S.A. de C.V. v. Dauajare, 495 S.W.3d 494, 497 (Tex. App.-Houston [14th Dist.] 2016, no pet.). Nothing in the language of the resolution requires either the Board or the Commission to accept a proposal from an organization interested in building the monument.

In other instances, the Legislature enacted statutes requiring the Board to establish a monument commemorating a specific event or group. Cf. TEX. GOV'T CODE § 443.01525 ("The State Preservation Board shall establish a Tejano memorial monument . . . ." (emphasis added)). Here, the Legislature "authorized" the monument through a concurrent resolution and not through a bill. "Although such resolutions may express the will of the legislature, they cannot be given the effect of law." TEX. CONST. art. III, § 30 interp. commentary (West 2007) (Article III, section 30 provides: "No law shall be passed, except by bill . . . ."). "The Constitution draws a clear distinction between 'laws' and 'Resolutions.'" Commercial Standard Fire & Marine Co. v. Comm'r of Ins., 429 S.W.2d 930, 934 (Tex. App.-Austin 1968, no writ) (discussing the constitutional distinctions found in Texas Constitution article III, sections 30 and 34). Texas courts have explained that the Legislature typically uses a resolution when "it wishes to merely express an opinion as to some given matter or thing." Conley v. Tex. Div. of United Daughters of the Confederacy, 164 S.W. 24, 26 (Tex. App.-Austin 1913, writ ref'd). Thus, the Board and Commission have discretion about whether to approve and permit the construction of a monument commemorating the Bill of Rights.

In your second question, you ask:

As [the Commission] serves as consultant to [the Board] in the review and selection of a monument site in relation to the master plan, does the significant change in the Capitol Complex master plan remove any obligation by [the Commission] to reserve a potential site, to the exclusion of other applicants, when an organization has not properly or timely applied for monument approval through the [the Board] within the 5 year timeframe since legislative passage of an H.C.R.?

Request Letter at 4-5. The resolution "encouraged" the Board and Commission "to locate the monument on the Supreme Court Plaza, unless another more appropriate site within the Capitol Complex becomes available." Tex. H.R. Con. Res. 111, 80th Leg., R.S., 2007 Tex. Gen. Laws 6022. While this provides evidence of the Eightieth Legislature's desire that a Bill of Rights monument be constructed in a specific area, the word "encouraged" does not create a mandatory duty. It instead gives discretion to the Commission and the Board regarding a location for the monument. Furthermore, the Resolution requires the Board and Commission to ensure that any monument is consistent with state law and rules of the Board and Commission. Id.

In your final question, you ask:

Does the [Commission] have the authority to issue a conditional approval of a site outside the process required by [the Board] for the procedures for approval of memorials/monuments in the Capitol Complex?

Request Letter at 5. The Board possesses review and approval authority over the site selection and construction of monuments within the Capitol Complex. See TEX. GOV'T CODE §§ 443.007(a)(4) ("The board shall . . . approve all changes to the [Capitol] buildings and their grounds . . . ."), 443.0152(a) (listing requirements for Board approval of permanent monuments on Capitol grounds); 13 TEX. ADMIN. CODE § 111.25(c). The Board has adopted procedures for approval of such monuments and their locations. See 13 TEX. ADMIN. CODE § 111.25(c). The Commission is responsible for generally defining potential locations suitable for monuments within the Capitol Complex master plan. Id. § 111.25(c)(2). We find no separate authority on the part of the Commission to approve, or conditionally approve, a site location for a specific monument.

[1] See Letter from Mr. Mike Novak, Exec. Dir., Tex. Facilities Comm'n, to Honorable Ken Paxton, Att'y Gen. of Tex. at 4-5 (Dec. 13, 2019), https://www2.texasattorneygeneral.gov/opinion/requests-for-opinion-rqs.

[2] See Letter from Mr. Edward Johnson, Exec. Dir., Tex. Facilities Comm'n, to Mr. Chris Bliss, President, MyBillofRights.org at 1 (Jan. 9, 2009) (attached to Bliss Brief, infra) (on file with the Op. Comm.).

[3] See Brief from Mr. Chris Bliss, Exec. Dir., MyBillofRights.org, to Honorable Ken Paxton, Att'y Gen. of Tex. at 2 (Jan. 21, 2020) ("Bliss Brief") (on file with the Op. Comm.).

[4] The term "Capitol Complex" includes, among other locations, "the area bounded on the north by the inside curb of Martin Luther King, Jr., Boulevard, on the east by the outside curb of Trinity Street, on the south by the outside curb of 10th Street, and on the west by the outside curb of Lavaca Street." TEX. GOV'T CODE § 411.061(a)(1).

[5] Tex. Facilities Comm'n, 2018 Tex. Capitol Master Plan Update at 76 (June 2018) (Monument Guidelines) http://www.tfc.state.tx.us/divisions/commissionadmin/tools/.

[6] In 2007, the Legislature renamed the Texas Building and Procurement Commission as the Texas Facilities Commission. See TEX. GOV'T CODE § 2152.0011(a).

S U M M A R Y

House Concurrent Resolution 111, adopted in 2007 by the Eightieth Legislature, authorized the State Preservation Board and the Facilities Commission to approve and permit the construction of a monument on the Capitol grounds commemorating the Bill of Rights of the United States Constitution. The Legislature gave the Board and the Commission discretion about whether to approve and permit the construction of such a monument and where to locate the monument.

The Legislature requires the State Preservation Board to review and approve the site selection and construction of monuments within the Capitol Complex.

Very truly yours,

KEN PAXTON
Attorney General of Texas

JEFFREY C. MATEER
First Assistant Attorney General

RYAN L. BANGERT
Deputy First Assistant Attorney General

RYAN M. VASSAR
Deputy Attorney General for Legal Counsel

VIRGINIA K. HOELSCHER
Chair, Opinion Committee