HOUSE OF REPRESENTATIVES JOE STRAUS SPEAKER June 5, 2018 Via Electronic Mail Re: Request No. Dear Opinion Committee, Thank you for the opportunity to submit briefing on Representative Joe Moody's opinion request regarding the "Children of the Confederacy Creed? plaque in the Texas Capitol. Speaker Joe Straus has authorized me to submit this brief on his behalf to address whether the State Preservation Board has legal authority to remove or relocate the plaque. It is our conclusion that the board may remove the plaque based on the general authority the Legislature has granted it. We also believe the board may relocate the plaque under the specific terms of the 1959 concurrent resolution authorizing the plaque's placement. This brief also addresses the historical inaccuracy of the plaque. In September of last year, Speaker Straus wrote his fellow Preservation Board members to request that board staff study the historical accuracy and context of all symbols on the Capitol grounds and make any necessary recommendations to the board. That request recognized the complex history of these monuments and the need to consider each monument in context. However, no further review is necessary to make clear the inaccuracy of this plaque, and the Speaker believes the board should exercise its authority to remove or relocate it as soon as possible. I. The Truths of History The plaque was dedicated on August 7, 1959. It adorns a wall facing the north doors of the Capitol, on the building's first floor, in a hallwayjust east of where the north wing enters the rotunda.1 It is readily visible to anyone walking down that hallway, or who enters the building from the north doors and looks to the left just before entering the rotunda. Permission to "dedicate and install a plaque in the State 1 Notably, and as discussed in greater detail later in this brief, the plaque has only been in its current location since 1995. Prior to this date, it was displayed in the southern ?rst-floor foyer of the Capitol. PO. BOX 2910 0 AUSTIN, TEXAS 78768?2910 0 (512) 465?1000 0 FAX (512) 465?0675 Capitol" was given to an organization known as the Children of the Confederacy by the 56th Legislature three months prior to its dedication. Tex. H.R. Con. Res. 140, 56th Leg., R.S., 1959. The plaque reads in full: 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 ofthe south, have united in an organization called "Children of the Confederacy," in which our strength, enthusiasm, and love ofjustice 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 The italicized portions (emphasis added) represent two historically inaccurate statements which should not be inscribed, unchallenged and without context, on a wall near the entrance to the Texas Capitol a location in which they are likely seen by tens of thousands of visitors each year, including many schoolchildren. A. The plaque's statement regarding slavery - presented as "one of the most important. . . truths of history" is patently false. The best evidence of the motivation behind Texas' secession from the Union, subsequent entry into the Confederate States of America, and the war that followed are the sentiments directly expressed by those who voted to secede. Their contemporaneous statements were unvarnished by the knowledge of history?s eventual judgment on the institution of slavery. Cf. 35 Tex. Jur. 3d Evidence 269 (describing rationale for "present sense impression" to hearsay rule as suggesting that statements made at the time events occur are "without any motive to fabricate, falsify, or otherwise exaggerate"). And these statements leave absolutely no doubt that sustaining slavery was the animating force behind Texas" decision to leave the Union. Following the election of Abraham Lincoln, a Secession Convention gathered in Austin beginning on January 28, 1861. By February 1, the convention had voted overwhelmingly 166 to 8 for secession, subject only to the question being placed before voters later that month. Journal of the Secession Convention of Texas 1861 (Ernest William Winkler 1912, at 48-49. The next day, the convention adopted, without recorded dissent, a "declaration of the causes which impel the State of Texas to secede from the Federal Union." Id. at 61-66. In their words: [Texas] was received as a commonwealth holding, maintaining and protecting the institution known as negro slavery the servitude of the African to the white race within her limits a relation that had existed from the first settlement of her wilderness by the white race, and which her people intended should exist in all future time. Her institutions and geographical position established the strongest ties between her and other slave- holding states of the confederacy . . . . But what has been the course of the government of the United States, and of the people and authorities of the non?slave-holding States, since our connection with them? The controlling majority of the Federal Government . . . has so administered the same as to exclude the citizens of the Southern States, unless under odious and unconstitutional restrictions, from all the immense territory owned in common by all the States on the Pacific Ocean, for the avowed purpose of acquiring sufficient power in the common government to use it as a means of destroying the institutions of Texas and her sister slave?holding states . . . . In all the non-slave-holding States . . . the people have formed themselves into a great sectional party, now strong enough in numbers to control the affairs of each of those States, based upon the unnatural feeling of hostility to these Southern States and their beneficent and patriarchal system of African slavery, proclaiming the debasing doctrine of the equality of all men, irrespective of race or color a doctrine at war with nature, in opposition to the experience of mankind, and in violation of the plainest revelations of the Divine Law. They demand the abolition of negro slavery throughout the confederacy, the recognition of political equality between the white and negro races, and avow their determination to press on their crusade against us, so long as a negro slave remains in these States. . . . We hold as undeniable truths that the governments of the various States, and of the confederacy itself, were established exclusively by the white race, for themselves and their posterity; that the African race had no agency in their establishment; that they were rightfully held and regarded as an inferior and dependent race, and in that condition only could their existence in this country be rendered beneficial or tolerable. That in this free government all white men are and of right ought to be entitled to equal civil and political rights; that the servitude of the African race, as existing in theSe States, is mutually beneficial to both bond and free, and is abundantly authorized and justified by the experience of mankind, and the revealed will of the Almighty Creator, as recognized by all Christian nations; while the destruction ofthe existing relations between the two races, as advocated by our sectional enemies, would bring inevitable calamities upon both and desolation upon the fifteen slave?holding States. . . . For these and other reasons . . . We the delegates of the people of Texas, in Convention assembled, have passed an ordinance dissolving all political connection with the government of the United States of America . . . . Id. at 61-65. The declaration enumerates several specific grievances regarding slavery, including the harboring of escaped slaves in the north and efforts to "stir up servile insurrections." Id. at 63-64. It lists only one grievance not inherently related to or deriving from slavery the failure of the federal government to properly secure the western border. Id. at 64. But even that ground of secession is neatly tied back to the root issue: They [the non-slaveholding states] have refused to vote appropriations for protecting Texas against ruthless savages, for the sole reason that she is a slave-holding State. Id. at 64 (emphasis added). The convention was also visited by emissaries from South Carolina, Georgia, and Louisiana, each of whom made clear his state's aims in addresses to the Texas convention. From John McQueen of South Carolina: . . . Lincoln was elected by a sectional vote, whose platform was that of the Black Republican party and whose policy was to be the abolition of slavery upon this continent and the elevation of our own slaves to an equality with ourselves and our children. . . . It is from under such dominion that South Carolina respectfully invites you to unite in forming a government with a homogenous people, identical in interest with you, and whose effort it will be to perpetuate the institutions of our fathers . . . to unite with them in a Southern Confederacy, to perpetuate the institutions of our ancestry, who transmitted them to us, that we should have in them but a usufruct, and transmit them, untarnished, to our posterity. Id. at 50-51. From John W.A. Sanford of Georgia: I deem it unnecessary to enter into a detailed exposition of the causes which have impelled her [Georgia] to this course of conduct [secession]. I shall therefore content myself with briefly adverting to the fact that her Northern confederates have for many years pretermitted no opportunity of annoying her upon the subject of negro slavery until, emboldened by her last forbearance, they have publicly proclaimed their determination of waging an unceasing warfare against its further extension and longer toleration. . . . [Georgia had] the alternative of either assuming a position which would place her beyond the control of those who had unjustly refused to recognize her equality in the common territory and the right of property in slaves, or of tamely submitting to the inauguration of a policy studiously designed to overthrow an institution inseparably interwoven with her social organization, and indispensably necessary to the advancement of her material interest and prosperity. . . . I rejoice that Georgia stands not solitary and alone in the performance of this historic act. Id. at 72-73. And from George Williamson of Louisiana: Louisiana looks to the formation of a Southern confederacy to preserve the blessings of African slavery . . . The people of Louisiana would consider it a most fatal blow to African slavery, if Texas either did not secede of having seceded should not joint her destinies to theirs in a Southern Confederacy. . . . The people of the slave-holding States are bound together by the same necessity and determination to preserve African slavery . . . . With the social balance wheel of slavery to regulate its machinery, we may fondly indulge the hope that our Southern government will be perpetual. Id. at 122?23. In concert with these overt and unmistakable declarations of slavery as the rationale for secession are numerous occasions on which the convention referred to the seceding states by their slave-holding status as a sort of shorthand.2 Defense of slavery was not a mere description of the states which would form the new confederacy; it was the indispensable condition of their membership. On those rare occasions when any room for doubt might have been left, the convention was quick to fill it. The journal records the following amendment to the secession ordinance: Mr. Brown offered the following amendment to the Section 6th line of the ordinance after the words "the Southern people" insert the words "Texas and her sister slave? holding states." Adopted. Id. at 46. 2 See Journal of the Secession Convention of Texas 1861 at 30 (reference to the desire of the "people of Alabama to meet the slaveholding states of the South?), 33 (proposed resolution that Confederate constitution allow for "admission of any of the slave?holding states which may hereafter ratify the same?), 34 (proposed resolution that "people of Texas are in favor of the speedy formation of a federal union with other slave?holding states?), 43 (proposed resolution that seceding states ?agree upon a basis for a new confederacy of slave States"), 69 (proposed resolution that ordinance of secession be transmitted "to each of the governors of the slave-holding states"), and 80 (naming delegates to "the Montgomery convention of slave-holding states"). This is a non- exhaustive list of instances in which this or similar terminology was used. Not all the proposals referenced here were adopted by the convention; they simply illustrate that secession and the maintenance of slavery were one and the same in the words of the convention. Finally, and tellingly, the organization whose creed is displayed on the plaque appears to no longer assert in the creed that sustaining slavery was not the underlying cause of the war. The phrase "nor was its underlying cause to sustain slavery" was removed from the Children of the Confederacy creed by the United Daughters of the Confederacy three years ago. Minutes of the 122nd Annual General Convention, United Daughters of the Confederacy, Nov. 2015, at 116.3 If even the group that crafted this statement regarding slavery no longer sees fit to defend it, there is even less reason the state should do so by allowing its display in the Capitol. B. The plaque's statement that the war "was not a rebellion" is inaccurate. The accuracy of this claim rises or falls on the definition of the word "rebellion." A rebellion is "an open, armed, and usually unsuccessful defiance of or resistance to an established government." Merriam? Webster Dictionary online, (last visited June 5, 2018). The war's appropriate characterization as a rebellion pivots on the legality of secession. If legal, secession rendered the war that followed a struggle between two separate nations, not a rebellion. If illegal, then Texas never ceased to be part of the United States of America, and its war efforts fit neatly within the framework of an armed defiance or resistance to an established government of which it was still a part. The Supreme Court ruled that secession was illegal a century and a half ago. After the war, Texas contested the validity of the transfer of certain bonds by its Civil War government to several private parties in exchange for supplies to aid the war effort. The Court necessarily had to consider the legality of this transfer, and with that question came the legality of secession. As the Court stated: Did Texas, in consequence of these acts, cease to be a State? Or, if not, did the State cease to be a member of the Union? It is needless to discuss, at length, the question whether the right of a State to withdraw from the Union for any cause, regarded by herself as sufficient, is consistent with the Constitution of the United States. . . . The Constitution, in all its provisions, looks to an indestructible Union, composed of indestructible States. When, therefore, Texas became one of the United States, she entered into an indissoluble relation. . . . There was no place for reconsideration, or revocation, except through revolution, or through consent of the States. Considered therefore as transactions under the Constitution, the ordinance of secession . . . and all the acts of her legislature intended to give effect to that ordinance, were absolutely null. They were utterly without operation in law. . . . It certainly follows that the State did not cease to be a State, nor her citizens to be citizens of the Union. If this were otherwise, the State must have become foreign, and her citizens foreigners. The war must have ceased to be a war for the suppression of rebellion, and must have become a war for conquest and subjugation. 3 The Children of the Confederacy is an auxiliary group to the United Daughters of the Confederacy. The relevant portions of these minutes are attached as Exhibit A. Texas v. White, 74 U.S. 700, 725-26 (1869), overruled in part on other grounds by Morgan v. U.S., 113 U.S. 476 (1885). Secession was illegal, and the war was in fact a rebellion. Just as a Capitol wall should not be emblazoned with denials of the central role of slavery in that conflict, so too should it not proclaim the legality of secession generations after that issue was settled. C. No historical purpose is served by leaving the plaque in its current location and without context as to its content and placement. Discussion regarding the future of any plaque or memorial related to the Civil War invariably raises concerns that removal would constitute an inappropriate attempt to embellish or "rewrite" history. In the case of this plaque, those concerns are unfounded. The plaque was originally installed almost a century after the start of the Civil War, and as discussed further below, was only placed in its current location in the mid?19905. The only history it is capable of preserving is the view of one particular group in 1959 regarding events that happened 100 years before. It is difficult to discern how preserving errors of historical fact errors even the group itself no longer appears to fully embrace in a 60?year?old monument about events that happened almost 160 years ago in any way serves or preserves history. Indeed, far from being entitled to any deference, the timing of the plaque's original placement is an additional ground to remove it. In the years immediately following the Supreme Court's 1954 school desegregation decision, tributes to the Confederacy were also used as thinly veiled messages about current events. The Legislature's own pronouncements from that period add to this context, and are at least suggestive that the plaque's timing was motivated by more than recognition of a group's creed.4 Keeping in place an historically inaccurate symbol from that painful time period one which, unlike the Civil War, many Texans can personally recall is particularly inappropriate. 4 To offer a few examples: within the 18 months prior to the plaque's authorization, the Legislature responded to the threat of federal intervention to enforce school desegregation by threatening to close public schools (Act of Dec. 10, 1957, 55th Leg., 2d C.S., ch. 7 (requiring governor to close public schools if the local school board finds that violence or danger to the school cannot be prevented except by resort to military force)); to prevent, through intimidation, advocacy on behalf of desegregation (Act of Dec. 10, 1957, 55th Leg., 2d C.S., ch. 20, 1 (imposing penalties on individuals belonging to organizations declared by a countyjudge to be "engaged in activities designed to hinder, harass, and interfere with the powers and duties of the State of Texas to control and operate its public schools")); and to authorize the attorney general to defend school districts sued over school segregation in federal court (Act of Dec. 10, 1957, 55th Leg., 2d C.S., ch. see also Tex. H.R. Con. Res. 3, 55th Leg., C.S., 1957 (protesting Supreme Court's decision in Brown v. Board of Education and opposing federal intervention to integrate schools). For a news account of one example of the insertion of Confederate imagery into arguments about school desegregation, see "Pickets on Opposing Sides Farm at Connally Mansion," Dallas Morning News, Aug. 2, 1963 (describing pro- and anti-integration rallies at Governor's Mansion in which anti?integration protesters wore Confederate uniforms and claimed to be members of the Children of the Confederacy). 7 II. The State Preservation Board may remove the plaque. A. The law grants the board broad authority over the contents of the Capitol. The State Preservation Board possesses broad authority to "preserve, maintain, and restore" the Capitol and its contents. Tex. Gov't Code 443.007. That authority necessarily includes the ability to remove this historically inaccurate plaque.5 The Legislature created the board in 1983 for the purpose of consolidating control of the Capitol and grounds in a single entity that could represent the unified vision of the Governor and House and Senate leadership. See House Comm. on Cultural and Historical Resources, Bill Analysis, Tex. 5.3. 147, 68th Leg., RS. (1983), at 2?3 (noting need for "coordinating and overseeing" a comprehensive program for the Capitol and that board would ?determine the placement and removal of items in the buildings under the board's care"). The board's structure the Governor as chair, Lieutenant Governor and Speaker as co- vice-chairs, one additional member each from the House and Senate, and one public appointee of the Governor both ensures this unified interest and provides accountability for its actions. See Tex. Gov't Code 443.003. Part of the board's mandate is to "restore" the Capitol. The word ?restore," in this context, has meaning only in relation to some earlier time period. See Merriam?Webster Dictionary online, (last visited June 5, 2018) ("restore" means to "bring back or to put back into a former or original state?). In the context of the Capitol and grounds, and in carrying out its duty to restore these facilities, the board has long operated under a guiding policy to return them to their 1915 appearance. See Texas Capitol Preservation and Extension, Master Plan and Historic Structures Report, prepared for the State Preservation Board, December 1989, at IV.59 (on file with boa rd staff); see also Greg Abbott, Acknowledgement Without Endorsement: Defending the Ten Commandments, 9 Tex. Rev. L. Pol. 229, 243 (2005). By the text of its own statute, and as evidenced by its unchallenged practice, the board has authority to remove a plaque that was added almost four- and-a?half decades after 1915. Appropriate to the goal of unified management of the Capitol and grounds, state law also grants the board sweeping authority over the Capitol's contents. The board is vested with the power to "approve all changes to the buildings and their grounds, including. . . any transfers or loans of objects under the curator of the Capitol's care." Tex. Gov't Code The curator of the Capitol is a board employee mandated by law to register and inventory the Capitol's contents. Id. at 443.006. While clearly stated in its own right, the scope of the board's authority is also apparent in the concerns expressed about its creation. In light of worries that the board may decide to move the offices of 5 While the board possesses authority to simply remove the plaque, the Speaker suggests that a better option would be relocation to a setting in which it could be placed in an appropriate historical context, perhaps in a broader display about the evolution of Texas' attitudes regarding civil rights. Such decisions should be discussed by the board if and when the issue comes before it, and are obviously subject to the preferences of a majority of the board. legislators or the Governor or Lieutenant Governor from the Capitol, the board's enabling legislation was amended to provide that the board could not do so unilaterally, but only with some manner of outside approval, as appropriate under the circumstances.6 See Bruce Hight, "Capitol protection board approved by Legislature," Austin American-Statesman, May 28, 1983 (noting that location of offices was "a sensitive point with lawmakers?). Such language would be unnecessary if the board did not otherwise possess authority to remove items from the Capitol. The board's statute also restricts its control over objects in the offices of members of the Legislature. Tex. Gov't Code This specific limitation also speaks to the general authority the board possesses. B. The board's previous actions demonstrate its authority to remove items like the plaque. The board has in other instances acted pursuant to its authority to remove items from the Capitol and grounds. During the renovation of the Capitol grounds in 1995 and 1996, two monuments were removed. See Abbott, 9 Tex. Rev. L. Pol. at 262 (2005) (citing sworn testimony of State Preservation Board staff in litigation involving Ten Commandments monument on Capitol grounds). Like the plaque, at least one of these monuments had been authorized by concurrent resolution of the Legislature. See Tex. H.R. Con. Res. 12, 64th Leg., R.S., 1975 (granting permission for construction of a bicentennial fountain funded by a trade association). Removal of both monuments was part of a unilateral decision by the board that monuments placed to the south, east, and west of the Capitol after 1965 should either be moved to the north grounds or, in the case of the two monuments mentioned above, removed entirely. See Abbott, 9 Tex. Rev. L. 8: Pol. at 243, 255. These actions show the board appropriately exercising its authority to act as a unified manager of the Capitol and grounds by making broad, unilateral decisions about the location and continued placement of monuments. That authority certainly extends to removing a plaque containing the inaccuracies described above, should the board choose to do so. C. Subsequent legislative actions confirm the board's authority. Other legislative actions after the board's creation recognize the board's authority to remove the plaque. In 2001, after a controversy arose over the replacement of a plaque dedicating the Texas Supreme Court building to Texas' Confederate veterans, the Legislature passed a law specifically designed to limit any purported authority to remove similar plaques to a few, select entities. See Act of May 28, 2001, 77th Leg., R.S., ch. 377, 7, (codified at Tex. Gov't Code 2166.5011); see also Christy Hoppe, "Judge won't order return of plaques," Dallas Morning News, March 23, 2004 (describing controversy regarding removal). That statute provides that no entity other than the Legislature, Texas Historical Commission, or State Preservation Board may remove, relocate, or alter a plaque like this 5 Specifically, the law requires the approval of the Governor, Lieutenant Governor, or Speaker for the movement of those of?ces, respectively, and approval of the relevant body for the movement of any other legislator's office. Tex. Gov't Code one.7 Tex. Gov't Code 2166.5011. This statute recognizes the board's inherent authority to remove the plaque by preserving it as one of the only entities that should continue to possess that authority. If the board had no independent authority to remove the plaque, Section 2166.5011 would make no sense. Almost all of the monuments and plaques in the Capitol or on the grounds the only locations in which the board has any authority at all derive from an express grant of legislative permission.8 If only the Legislature could remove these items, there would be no reason for the statute to preserve the board's authority to remove them, because no such authority would exist. The reservation of the board's authority in Section 2166.5011 must serve a purpose. See City of Dallas v. TCI West End, Inc., 463 53, 57 (Tex. 2015) (statutory language should not be read to be useless or a nullity); see also Tex. Gov't Code The Legislature, of course, also retains the authority to remove or relocate the plaque. But as both the factual and legislative history during and after the board's creation illustrate, it has also been granted authority by the Legislature to do the same as to Capitol building and grounds. D. Conley v. United Daughters of the Confederacy has no bearing on the State Preservation Board's authority. As demonstrated above, the Legislature has vested the State Preservation Board with broad authority over displays in the Capitol and on the grounds. That authority supersedes and renders irrelevant a century-old case involving the use of a Capitol room by the United Daughters of the Confederacy. 7 The statute defines a "monument or memorial" subject to its terms to include a plaque "on state property" and that "honors a citizen of this state for military or war-related service." Tex. Gov't Code The current plaque appears to qualify based on its stated desire to commemorate the "heroic deeds of those who enlisted in the Confederate Army." Even if the statute did not by its terms apply to this particular plaque, the point would remain valid: Section 2166.5011 does not explicitly grant any entity any authority, but merely recognizes authority which already exists. 8 See, Act of Mar. 28, 1883, 18th Leg., R.S., ch. 46, 1883 Tex. Gen. Laws 35 (State Fireman's Association Monument); Tex. H.B. 360, 215t Leg., R.S. (1889) (Heroes of the Alamo Monument); Tex. S. Con. Res., 24th Leg., R.S., 1895 (Confederate Soldiers Monument); Tex. S. Con. Res. 22, 25th Leg., R.S., 1897 (Terry's Texas Rangers Monument); Tex. S. Con. Res. 3, 315t Leg., R.S., 1909 (Hood's Texas Brigade Monument); Tex. 5. Con. Res. 2, 52nd Leg., R.S., 1951 (The Hiker Monument); Tex. 5. Con. Res. 4, 52nd Leg., R.S., 1951 (Statue of Liberty Replica Monument); Tex. H.R. Con. Res. 76, 54th Leg., R.S., 1955 (Veterans of the 36th Infantry Memorial); Tex. H.R. Con. Res. 104, 56th Leg., R.S., 1959 (Children of the Confederacy Creed Plaque); Tex. 5. Con. Res. 16, 57th Leg., R.S., 1961 (Ten Commandments Monolith); Tex. H.R. Con. Res. 38, 57th Leg., R.S., 1961 (World War Monument); Tex. H.R. Con. Res. 9, 59th Leg., C.S., 1966 (Confederate Historic Markers); Tex. H.R. Con. Res. 149, 64th Leg., R.S., 1975 (Lutheran and Methodist Church Historical Markers); Tex. H.R. Con. Res. 180, 66th Leg., R.S., 1979 (Disabled American Veterans of Texas Memorial); Tex. S. Con. Res. 42, 70th Leg., R.S., 1987 (Pearl Harbor Memorial); Act of May 18, 1989, 7lst Leg., R.S., ch. 132 1, 1989 Tex. Gen. Laws 491 (Peace Officers Memorial); Tex. S. Con. Res. 159, 72nd Leg., R.S., 1991 (Reverse Side of the Great Seal); Tex. S. Con. Res. 62, 73rd Leg., R.S., 1993 (Tribute to Texas School Children Monument); Tex. H.R. Con. Res. 158, 73rd Leg., R.S., 1993 (Texas Pioneer Women Memorial); Tex. S. Con. Res. 35, 74th Leg., R.S., 1995 (Korean War Veterans Memorial); Tex. S. Con. Res. 2, 78th Leg., C.S., 2003 (World War II Memorial); Tex. H.R. Con. Res. 36, 79th Leg., R.S., 2005 (Vietnam Veterans Monument); Act of May 29, 2009, 81$t Leg., R.S., ch. 252 3, 2009 Tex. Gen. Laws 697 (Tejano Monument); Act of May 30, 2011, 82nd Leg., R.S., ch. 207 1, 2011 Tex. Gen. Laws 762 (African American History Memorial). This list may not be exhaustive and only reflects the express authorizations we have been able to locate. 10? In 1903, the Legislature by concurrent resolution granted permission to the United Daughters to use a specific room in the northwestern portion of the Capitol for the display of war relics. Conley v. Texas Div. of United Daughters of the Confederacy, 164 S.W. 24, 25 (Tex. Civ. App?Austin 1913, writ In 1913, the state superintendent of buildings and grounds attempted to evict the group to allow space for the State Fire Insurance Commission. Id. at 24?25. The United Daughters sued to maintain their access. Id. at 25. The court noted that the concurrent resolution had allowed for the use of the room until it was needed for other purposes. Id. But given that neither the concurrent resolution nor any subsequent legislative act had specified who was to make the determination of when the room might be so needed, the court held that [the Legislature], not having vested this discretion in any other person, we are not prepared to hold with appellant that he had the right to determine the need of the state in this respect." Id. at 26. The circumstances of the current plaque contrast sharply with that reasoning. In this instance, the Legislature has subsequently vested in the State Preservation Board broad authority over the contents of the Capitol, authority that the board has exercised, unquestioned, for decades.10 The Legislature reiterated the point by recognizing and reserving the board's authority with the passage of Section 2166.5011. Ill. By the same authority granting permission for the plaque, the State Preservation Board also may relocate the plaque within the Capitol and it has already done so once. Even if the board did not possess the general, legislatively?granted power to remove this inaccurate plaque, it would still have the more narrow authority to relocate the plaque within the Capitol.11 This specific authority derives directly from the legislative action that authorized the plaque in the first place. As long as the plaque remains in the Capitol, the board retains authority over its location. The concurrent resolution authorizing the plaque gave the State Board of Control authority to "determine the specific place of honor this worthy plaque shall occupy in the State Capitol." Tex. H.R. Con. Res. 140, 56th Leg., R.S., 1959. The State Board of Control a state agency with charge of the custody and maintenance of the Capitol was abolished in 1979, and its duties transferred to the State Purchasing and General Services Commission. Act ofJune 13, 1979, 66th Leg., R.S., ch. 773, 11.01. As discussed above, in 1983, the Legislature broadly vested any authority of the State Purchasing and General Services Commission relating to the Capitol in the State Preservation Board. Act ofJune 19, 9 While Conley carries a "writ refused" designation, it does not carry the weight of Texas Supreme Court authority. Prior to 1927, the "writ refused" designation did not indicate the Texas Supreme Court's approval of the reasoning of a case. See City of San Angelo v. Deutsch, 91 308, 312 (Tex. 1936); Tex. State Board of Medical Examiners v. Koepsel, 322 609, 614 (Tex. 1959). 1? In addition, even if Conley stood for some broad principle that only the Legislature can effectuate the removal of a monument or plaque, the concurrent resolution authorizing this plaque would still allow the State Preservation Board to relocate it. See Section Unlike in Conley, which involved a speci?c room and unde?ned discretion, placement of the plaque specifically authorizes the board to determine its location within the Capitol. 11 While removal from the Capitol is the best option to address the historical inaccuracies in the plaque, relocation within the Capitol would at least allow for a location that might be more conducive to additional displays that could place the plaque in historical context. 11 1983, 68th Leg., R.S., ch. 476, 4 (codified at Tex. Gov't Code This transferred the State Board of Control's authority over the location of the plaque to the State Preservation Board. The board has already acted pursuant to this authority to move the plaque. The plaque formerly was displayed in the south foyer of the Capitol, also on the first floor. In the 19905, during the Capitol renovations, it was moved to its current location.12 As the successor in all matters- involving the Capitol to the State Board of Control, the State Preservation Board has authority to relocate the plaque anywhere within the Capitol. IV. Conclusion Confederate monuments, memorials, and plaques are understandably important to many Texans. Plaques heralding fundamentally inaccurate messages on a subject as painful as slavery are even more understandably offensive to many. Each monument should be assessed on its own merits, but this one fails any reasonable test of historical accuracy. Every year, thousands of visitors to the Capitol are exposed to this inaccurate plaque. Maintaining it in its present location is a disservice to them and to history. The plaque should either be removed or relocated to a place where appropriate historical context can be provided. The Speaker believes the board possesses the authority to do so, and hopes it will exercise this authority as soon as possible. Sincerely, Jon nautz General Counsel Speaker Joe Straus cc: State Preservation Board Members Rod Welsh, Executive Director, State Preservation Board The Honorable Joe Moody The Honorable EricJohnson Exhibit A: Portion of minutes, 122nd Annual General Convention, United Daughters of the Confederacy, Nov. 2015 12 According to information provided by board staff based on its records, the plaque was removed from the south foyer and placed in storage on Jan. 28, 1993 and then placed in its current location on April 14, 1995. 12 Qtunfeheratw Orgamzed September 10 1894 I NASHVILLE TENNESSEE 7 7 6f the ONE HUNDRED TWENTY SECOND . ANNUAL GENERAL CO 12'. - ?j Held 1_n 4. Raleigh, North Carolma November November 9_ 2015 Mrs. MOLD JAY Wu Mus. Gmiudz - PreszdentGenel-al Secretary Getieral . ONE HUNDREDAND TWENTY-SECOND ANNUAL GENERAL CONVENTION of the General Minutes for the 122"? Annual Convention at a cost of $7,266.00. ADOPTED 14. The General Executive Committee recommends that a $500 donation be made to Arizona CWND Dixie Chapter 1679 in Tempe, AZ toward the restoration of the monument currently situated on the capitol grounds in Phoenix. AZ which commemorates the Confederate soldiers Who. participated in the Battle of Picacho Pass the westernmost battle of the War Between the States. The funds to come from the Lure Heath Historical Fund. Rationale: Money' Is being allocated to this project due to their fund raising effects and following all the proper procedures as Specified by' the Finance Committee. ADOPTED 15. The General Executive Committee recommends that Chapters and Divisions that order a Museum Set pay $100 to defray the shipping that are dismayed in their respective state and submit the list to the PresidentGeneml. ADOPTED 16. The General Executive Committee recommends the Ex-President General ma?ter be purchased and be presented to each Ex-P're'siderit General upon completion of their term. This Will include all living Ex- Presidents General. Costs to be covered from the funds raised. from the Ses?quicentehnial Committee. ADOPTED 17. The General Executive Committee recommends that the phrase ?nor was its underlying cause to suStain slavery" be removed from the CofC Creed. ADOPTED Reports from Standing Committees continued. Ms. Lloyce West, Chairman of Finance Committee. presented the ?scal year 2015 audit. Ms. West stated that the audit accurately re?ects the Organization? 5 activities. She moved that the audit be accepted. ADOPTED Mrs. West mentioned that the process of rotation of members on the Finance Committee has werked well. in reference to the Anndal Budget, if members Went to have copies available. at the General Convention. Ms. west will need to know this In advance. President General Trammell discussed the budget and the additional expenses that had been incurred during the summer. The General Executive Committee with recommendation from the Finance Committee. recommends that the 2015-2016 Budget be approved. ADOPTED President General Trammell announced the new members of the Memorial Building Board of Trustees. Steele (ful?ll the unexpired term of Pat Limpus, 2016); Beth Manchester (fUl?ll the uneXpired term or Aileen Ezell. 2016), Ann King (2019) and Mary Jackson (2019).