Who can remove the Children of the Confederacy plaque in the Texas Capitol, and how?

Plain-English summary

The chair of the Texas House Committee on Criminal Jurisprudence asked the AG who has the authority, and through what process, to remove or relocate a plaque displayed inside the State Capitol. The plaque was donated by the Children of the Confederacy and installed in 1959 under a legislative resolution; in recent years multiple legislators had called for its removal, finding it offensive and historically inaccurate. The request asked which officials or entities can remove or relocate it, and whether any of them could be forced to act by a writ of mandamus.

The AG identified Government Code section 2166.5011 as the central statute. It authorizes three bodies, the Legislature, the State Preservation Board, and the Texas Historical Commission, to remove, relocate, or alter a monument or memorial on state property, and it defines "monument or memorial" to include a plaque that honors a citizen of the state for military or war-related service. The briefs disagreed about whether the plaque fit that definition. The AG concluded it did: the plaque sets out the Children of the Confederacy creed and states a purpose of perpetuating the heroic deeds of those who enlisted in the Confederate Army, and the 1959 resolution acknowledged the Texans who participated in the Confederate cause, so both the plaque and the authorizing resolution purport to honor individuals for war-related service. Some briefing argued the stated purpose was a pretext for other messages, but the AG explained that deciding whether a stated rationale is pretextual requires a factual inquiry into the actors' intent, which the opinion process cannot conduct; courts discern legislative intent from the plain meaning of the words chosen, and on that plain language the statute authorized removal.

The AG then walked through each body's authority. The Legislature, under both its general legislative power and section 2166.5011, may remove or relocate the plaque by resolution, just as it has relocated other historic artifacts through concurrent resolutions; a past Legislature's grant of authority to the Board's predecessor to set the plaque's location did not tie a future Legislature's hands. The State Preservation Board has broad authority over the Capitol and its contents, including approving changes and overseeing a curator, and it adopted a rule (13 Texas Administrative Code section 111.16) creating a change-request process. A plaque request would likely fall in the category for relocations and additions of furnishings and artwork, where a person submits a change-request form and the curator (or the Board, if it chooses to get involved) decides. The AG noted that the rule guarantees consideration at an open Board meeting only for denied requests involving construction, restoration, and repairs, not for furnishings-and-artwork denials, though the Board may discuss any request at an open meeting. The Texas Historical Commission holds concurrent authority too: although the Board's authority over the Capitol is otherwise exclusive, section 2166.5011 applies "notwithstanding any other provision," so it controls to the extent of a conflict.

Finally, on mandamus, the AG explained that the remedy is extraordinary and does not issue to control an officer's legitimate exercise of discretion. Because whether and how to address a request to remove or relocate the plaque is a discretionary function of the Legislature, the Board, or the Commission, a court is unlikely to grant mandamus relief.

Currency note

This opinion was issued in 2018. 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, deadline, or remedy mentioned here.

What the opinion meant for those who asked

Legislators seeking removal or relocation: The AG concluded the Legislature may remove or relocate the plaque by resolution under its general power and under section 2166.5011, and that an individual legislator may submit a change-request form to the State Preservation Board under its rules.

The State Preservation Board and its curator: The opinion explained that a plaque request would likely fall in the furnishings-and-artwork category, where the curator approves changes and the Board may become involved, and that open-meeting consideration of a denial is required only for construction-related requests.

The Texas Historical Commission: The AG concluded the Commission has concurrent authority to remove or relocate the plaque under section 2166.5011, which applies notwithstanding the Board's otherwise-exclusive authority over the Capitol.

Anyone considering a lawsuit to force action: The AG explained that the decision is discretionary, so a court is unlikely to grant a writ of mandamus.

Common questions

Who can take down the Children of the Confederacy plaque in the Texas Capitol?
At the time of this opinion, the Legislature, the State Preservation Board, and the Texas Historical Commission each had authority to remove or relocate it under Government Code section 2166.5011.

How would the Legislature remove it?
The AG explained the Legislature could adopt a resolution directing removal or relocation, the same kind of concurrent resolution it has used to move other historic artifacts.

What is the process through the State Preservation Board?
The AG explained that a person submits a change-request form, and a plaque request would likely fall in the furnishings-and-artwork category, where the curator (or the Board, if it chooses to act) decides.

Can a court be asked to force an official to remove the plaque?
Unlikely to succeed. The AG concluded that whether and how to address such a request is discretionary, and mandamus does not issue to control an officer's legitimate exercise of discretion.

Background and statutory framework

The Legislature authorized the plaque in 1959 (Tex. H.R. Con. Res. 104, 56th Leg., R.S., 1959 Tex. Gen. Laws 1214). Government Code section 2166.5011 authorizes the Legislature, the State Preservation Board, and the Texas Historical Commission to remove, relocate, or alter a monument or memorial on state property and defines that term to include a plaque honoring a citizen for military or war-related service (Tex. Gov't Code § 2166.5011(a), (b), (b)(2), (b)(3)). The AG declined to resolve the pretext argument because it required a factual inquiry outside the opinion process (St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 511-14 (1993); Tex. Att'y Gen. Op. No. JC-0326 (2001)) and construed the resolution by its plain language (Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 437 (Tex. 2009)).

The Legislature's authority rests on both its general legislative power (Tex. Const. art. III, § 1) and the statute, and a prior Legislature could not bind a later one (Shepherd v. San Jacinto Junior Coll. Dist., 363 S.W.2d 742, 743 (Tex. 1962); Cent. Power & Light Co. v. Pub. Util. Comm'n, 649 S.W.2d 287, 289 (Tex. 1983)). The Board's authority over the Capitol and its contents, its duty to approve changes, its curator, and its membership are set by statute (Tex. Gov't Code § 443.007(a)(1), (a)(4), (b), (c); § 443.006(a), (b)(5); § 443.003(a)), and its rule establishes the change-request categories and procedures (13 Tex. Admin. Code § 111.16; § 111.16(a)(1); § 111.16(a)(2); § 111.16(b)-(d); § 111.16(b)(5); § 111.16(c); § 111.16(c)(1)-(2); § 111.18(e)). The singular-includes-plural canon meant recognizing several individuals did not change the analysis (Tex. Gov't Code § 311.012(b)). The Historical Commission's concurrent authority follows from the "notwithstanding" clause controlling over conflicts (In re Lee, 411 S.W.3d 445, 454 (Tex. 2013); Tex. Lottery Comm'n v. First State Bank of DeQueen, 325 S.W.3d 628, 639 (Tex. 2010)). On mandamus, the remedy does not control discretionary acts (Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992); In re Smith, 333 S.W.3d 582, 585 (Tex. 2011)).

Citations

Constitutional, statutory, and administrative provisions:

• Tex. Const. art. III, § 1
• Tex. Gov't Code § 2166.5011(a), (b), (b)(2), (b)(3); § 443.003(a); § 443.006(a), (b)(5); § 443.007(a)(1), (a)(4), (b), (c); § 311.012(b)
• 13 Tex. Admin. Code § 111.16; § 111.16(a)(1); § 111.16(a)(2); § 111.16(b)-(d); § 111.16(b)(5); § 111.16(c); § 111.16(c)(1)-(2); § 111.18(e)
• Tex. H.R. Con. Res. 104, 56th Leg., R.S., 1959 Tex. Gen. Laws 1214

Cases and Attorney General opinions:

• St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 511-14 (1993)
• Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 437 (Tex. 2009)
• Shepherd v. San Jacinto Junior Coll. Dist., 363 S.W.2d 742, 743 (Tex. 1962)
• Cent. Power & Light Co. v. Pub. Util. Comm'n, 649 S.W.2d 287, 289 (Tex. 1983)
• In re Lee, 411 S.W.3d 445, 454 (Tex. 2013)
• Tex. Lottery Comm'n v. First State Bank of DeQueen, 325 S.W.3d 628, 639 (Tex. 2010)
• Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992)
• In re Smith, 333 S.W.3d 582, 585 (Tex. 2011)
• Tex. Att'y Gen. Op. No. JC-0326 (2001)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0224
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2018/kp0224.pdf

Original opinion text

KEN PAXTON
ATTORNEY GENERAL OF TEXAS

November 21, 2018

The Honorable Joe Moody Opinion No. KP-0224
Chair, Committee on Criminal Jurisprudence
Texas House of Representatives Re: Authority and process for removing
Post Office Box 2910 historical plaques in the Texas Capitol Complex
Austin, Texas 78768-2910 (RQ-0226-KP)

Dear Representative Moody:

   You seek an opinion regarding the removal or relocation of a plaque located inside the

State Capitol. [1] As background, you explain that a plaque donated by the Children of the
Confederacy is currently displayed inside the Capitol. Request Letter at 1. The Legislature
authorized installation of that plaque in 1959. Tex. H.R. Con. Res. 104, 56th Leg., R.S., 1959 Tex.
Gen. Laws 1214 ("permission of the Texas Legislature is hereby given to the Children of the
Confederacy to dedicate and install a plaque in the State Capitol"). You tell us that in recent years,
multiple legislators have called for removal of the plaque, finding it offensive and historically
inaccurate. Request Letter at 1. [2] You therefore ask which officials or entities are authorized to
remove or relocate the plaque and the processes for doing so. Id. at 2.

   Section 2166.5011 of the Government Code authorizes the Legislature, the State

Preservation Board ("the Board"), and the Texas Historical Commission to remove, relocate, or
alter a monument or memorial located on state property. TEX. GOV'T CODE § 2166.5011(b). That
section defines "monument or memorial" to include, among other items, a plaque located on state
property that honors a citizen of this state for military or war-related service. [3] Id. § 2166.5011(a).
The various briefs submitted in response to your request take different positions regarding whether
the plaque qualifies as a "monument or memorial" under this definition. [4] The plaque sets forth
the creed of the Children of the Confederacy, thereby recognizing that organization. A stated
purpose of that organization, reflected on the text of the plaque, is "to perpetuate, in love and
honor, the heroic deeds of those who enlisted in the Confederate Army." The resolution
authorizing the plaque similarly acknowledged the 60,000 Texans who participated in the
Confederate cause. Tex. H.R. Con. Res. 104, 56th Leg., R.S., 1959 Tex. Gen. Laws 1214. Thus,
the text of the plaque itself and the resolution authorizing its installation both purport to honor
individuals for war-related service. Id.; TEX. GOV'T CODE § 2166.5011(a).

    Briefing submitted in response to your request proposes that the installation of the plaque

and its stated purpose of honoring war heroes were pretexts for other messages that the Legislature
intended to convey regarding the current events of the time. [5] While we recognize that possibility,
any determination about whether a stated rationale for action is pretextual requires a factual inquiry
into the intent of the actors at the time that action was taken. See, e.g., St. Mary's Honor Ctr. v.
Hicks, 509 U.S. 502, 511-14 (1993) (relying on the jury as factfinder to determine whether an
employer's proffered reason for terminating an employee was a pretext for discrimination). This
office does not have authority in the opinion process to conduct the factual inquiries necessary to
make a pretext determination. See Tex. Att'y Gen. Op. No. JC-0326 (2001) at 3 (explaining that
the opinion process cannot resolve factual disputes). And irrespective of that lack of authority, in
discerning legislative intent, the courts consistently require that we look to the plain meaning of
the words chosen by the Legislature. Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 437
(Tex. 2009). Based on the plain language of the resolution authorizing the plaque, subsection
2166.5011(a) authorizes the removal of the plaque by the entities listed.

  Thus, under both its general legislative power and section 2166.5011 of the Government

Code, the Legislature possesses authority to remove or relocate the plaque. TEX. CONST. art. III,
§ 1; TEX. GOV'T CODE § 2166.5011(b). The Legislature approved installation of the plaque in
1959. Tex. H.R. Con. Res. 104, 56th Leg., R.S., 1959 Tex. Gen. Laws 1214. And it retains
authority to move or relocate the plaque today. See Shepherd v. San Jacinto Junior Coll. Dist.,
363 S.W.2d 742, 743 (Tex. 1962) ("All power which is not limited by the Constitution inheres in
the people, and an act of the state legislature is legal when the Constitution contains no prohibition
against it."). The Legislature has moved other historic artifacts and monuments through concurrent
resolutions and could likewise use that process to relocate or remove the plaque here. See, e.g.,
Tex. S.R. Con. Res. 42, 63d Leg., R.S., 1973 Tex. Gen. Laws 2258 (relocating a portrait of Jesse
H. Jones to the museum building at Washington-on-the-Brazos).

    Alongside the Legislature, the Board possesses authority to remove or relocate the plaque.

See TEX. GOV'T CODE §§ 443.007(a)(1), 2166.5011(b)(3). The resolution authorizing installation
of the plaque requires the State Board of Control, a predecessor to the Board, to "determine the
specific place of honor which this worthy plaque shall occupy in the State Capitol." Tex. H.R.
Con. Res. 104, 56th Leg., R.S., 1959 Tex. Gen. Laws 1215. Thus, the Legislature gave express
authority to the Board's predecessor to determine the plaque's setting within the Capitol. In
providing such authority, however, the Fifty-sixth Legislature did not restrict a future Legislature
from passing legislation to relocate the plaque. See Cent. Power & Light Co. v. Pub. Util. Comm'n,
649 S.W.2d 287, 289 (Tex. 1983) ("A legislature cannot prevent future legislatures from amending
or repealing a statute.").

    Section 443.007 of the Government Code provides the Board with broad authority over the

Capitol and its contents. [6] TEX. GOV'T CODE § 443.007(a)(1). That authority includes a duty to
approve changes to the Capitol buildings. Id. § 443.007(a)(4). The Government Code also
requires the executive director of the Board to "employ a curator of the Capitol," who, among
other responsibilities, must "develop a collections policy regarding the items of historic
significance" in the Capitol. Id. § 443.006(a), (b)(5).

    The Legislature authorized the Board to "adopt rules concerning the [Capitol] buildings,

their contents, and their grounds," and pursuant to that authority, the Board adopted a rule to
outline the process for requesting a change at the Capitol. Id. § 443.007(b); see 13 TEX. ADMIN.
CODE § 111.16. The rule defines "changes" as "any alteration, addition, relocation, or other form
of renovation to the Capitol building ...." 13 TEX. ADMIN. CODE § 111.16(a)(1). It then divides
potential changes into three categories:

             (A) construction, restoration, and repairs;

             (B) relocations/additions of furnishings and artwork;

             (C) maintenance and custodial.

Id. § 111.16(a)(2). And the rule provides different approval processes for specific types of change.
See id. § 111.16(b)-(d). A request related to the plaque would likely fall within change request
category (B) and would be subject to the following procedures:

             (1) A change request form must be filled out if a change (permanent
                 additions, loans, location changes, and maintenance) related to
                 the state-owned objects of historical significance in the buildings
                 and on the grounds is sought.

             (2) Changes to furnishings and artwork must be approved by the
                 curator of the Capitol.

Id. § 111.16(c)(1)-(2). Thus, a legislator seeking a change regarding the plaque must complete a
change request form and submit it to the office of the Board. The discretion to approve the change
thereafter lies with the curator or the Board, if the Board chooses to become involved. See id.
§ 111.18(e) (authorizing the Board to deaccession material to refine its collection).

     Briefing submitted in response to your request suggests that if the Capitol curator denies a

request from a legislator to remove or relocate the plaque, the legislator may bring the request
before the Board at its next open meeting for a final ruling. [7] The provision authorizing discussion
of a change request at an open meeting of the Board falls under the subsection addressing the first
category of changes relating to construction, restoration, and repairs of the Capitol. See id.
§ 111.16(b)(5). The Board did not provide the same process for denied change requests related to
furnishings and artwork under subsection (c). See id. § 111.16(c). [8] Thus, while the Board may
discuss any change request at an open meeting, its rules only require consideration at an open
meeting of those change request denials involving construction, restoration, and repairs.

    In addition to the Legislature and the Board, section 2166.5011 of the Government Code

authorizes the Texas Historical Commission to remove or relocate monuments or memorials on
state property. TEX. GOV'T CODE § 2166.5011(b)(2). The Legislature vested the Board with
specific authority over preservation and maintenance of the Capitol and its contents, to the
exclusion of other state agencies in almost all instances. Id. § 443.007(a)(1), (c) ("Any power or
duty related to the [Capitol] buildings and formerly vested in the ... Texas Historical Commission
... is vested solely in the board."). However, the statute granting authority to the Historical
Commission to remove or relocate a monument applies "[n]otwithstanding any other provision of
[the Government Code]." Id. § 2166.5011(b). The use of the word "notwithstanding" indicates
that the Legislature intended subsection 2166.5011(b) to be controlling to the extent of a conflict.
See In re Lee, 411 S.W.3d 445, 454 (Tex. 2013); see also Tex. Lottery Comm'n v. First State Bank
of DeQueen, 325 S.W.3d 628, 639 (Tex. 2010). The Historical Commission therefore possesses
concurrent authority with the Legislature and the Board to remove or relocate the plaque under
section 2166.5011(b) of the Government Code.

    You also ask whether an official or entity with authority to decide whether to remove or

relocate the plaque may be compelled through a writ of mandamus to address a request for removal
or relocation of the plaque or take other actions related to the plaque. Request Letter at 2.
Mandamus is an extraordinary remedy, available only in limited circumstances. Walker v. Packer,
827 S.W.2d 833, 840 (Tex. 1992). Although mandamus may issue to enforce the performance of
a nondiscretionary or ministerial act, it will not issue to control an officer's legitimate exercise of
discretion. In re Smith, 333 S.W.3d 582, 585 (Tex. 2011). Whether and how to address a request
for removal or relocation of the plaque is a discretionary function of the entities discussed above,
and a court is unlikely to grant mandamus relief in such circumstances.

                                  SUMMARY

                  The Legislature authorized installation of the Children of the
          Confederacy plaque inside the Capitol in 1959, and it likewise
          possesses authority to remove or relocate the plaque by adopting a
          resolution directing its removal or relocation.

                 Alongside the Legislature, section 2166.5011 of the
          Government Code authorizes the State Preservation Board and the
          Texas Historical Commission to remove or relocate monuments or
          memorials such as the plaque. Board rules establish a procedure for
          requesting a change to contents of the Capitol.

                  Whether and how to address a request for removal or
          relocation of the plaque is a discretionary function of the
          Legislature, the Board, or the Commission, and a court is unlikely
          to grant mandamus relief in such circumstances.

                                         Very truly yours,

                                         KEN PAXTON
                                         Attorney General of Texas

JEFFREY C. MATEER
First Assistant Attorney General

BRANTLEY STARR
Deputy First Assistant Attorney General

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

[1] See Letter from Honorable Joe Moody, Chair, House Comm. on Crim. Jurisprudence, to Honorable Ken Paxton, Tex. Att'y Gen. at 2 (Apr. 27, 2018), https://www2.texasattorneygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter").

[2] The full text of the plaque provides:

Children of the Confederacy Creed

Because we desire to perpetuate, in love and honor, the heroic deeds of those who enlisted in the Confederate Army, and upheld its flag through four years of war, we, the children of the South, have united in an organization called "Children of the Confederacy," in which our strength, enthusiasm, and love of justice can exert its influence.

We, therefore, pledge ourselves to preserve pure ideals; to honor our veterans; to study and teach the truths of history (one of the most important of which is, that the war between the states was not a rebellion, nor was its underlying cause to sustain slavery), and to always act in a manner that will reflect honor upon our noble and patriotic ancestors.

Erected by Texas Division
Children of the Confederacy
August 7, 1959

[3] The Legislature has instructed that in construing statutes, "the singular includes the plural and the plural includes the singular." TEX. GOV'T CODE § 311.012(b). Thus, the fact that the plaque recognizes numerous individuals for their military service instead of a single individual does not change the analysis.

[4] See Letter from Honorable Eric Johnson, Tex. House of Reps., to Virginia Hoelscher, Chair, Op. Comm. at 2 (June 5, 2018) (arguing that section 2166.5011 authorizes removal of the plaque by various entities); Brief from Honorable James White, Tex. House of Reps. to Office of Att'y Gen. at 3, n.15 (June 28, 2018) (arguing that section 2166.5011 is not applicable because the plaque does not meet the definition of "monument or memorial") (briefs on file with the Op. Comm.).

[5] See Letter from Jon Schnautz, Gen. Counsel to Honorable Joe Straus, Tex. House of Reps., to Op. Comm. at 7 (June 5, 2018) (on file with the Op. Comm.).

[6] The Board consists of the Governor, the Lieutenant Governor, the Speaker of the House of Representatives, one senator appointed by the Lieutenant Governor, one representative appointed by the Speaker of the House, and a member of the general public appointed by the Governor. TEX. GOV'T CODE § 443.003(a).

[7] See Brief from Honorable Eric Johnson, House of Representatives, to Virginia K. Hoelscher, Chair, Op. Comm. at 2-3 (June 5, 2018) (on file with the Op. Comm.).

[8] See also ANTONIN SCALIA & BRIAN A. GARNER, READING LAW: THE INTERPRETATION OF LEGAL TEXTS, 156 (2012) (discussing the scope-of-subparts canon).