Paxton: Legislature, preservation board, historical commission have authority to remove plaque from Capitol

By Gabriel Neves | Nov 29, 2018

Children of the Confederacy plaque   Wikimedia Commons/user Srl

AUSTIN – Only the state legislature, the State Preservation Board and the Texas Historical Commission have the authority to remove a historical plaque from the State Capitol complex, Attorney General Ken Paxton says.

Paxton issued an opinion about the subject on Nov. 21 upon request of the House Chair of the Committee on Criminal Jurisprudence Joe Moody. Moody had written to Paxton regarding a plaque placed in the Capitol Complex by the Children of the Confederacy.

Moody wanted to check with the attorney general on whether to remove or relocate the plaque.

The monument, placed in the State Capitol in 1959, was erected by the Texas Division of the Children of the Confederacy, to "perpetuate, in love and honor, the heroic deeds of those who enlisted in the Confederate Army," and the installation states that 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)," Moody's request states. 

As stated in the request, "multiple legislators have called for removal of the plaque, finding it offensive and historically inaccurate."

Paxton explained in his opinion that, as stated by the Government Code, "the legislature possesses authority to remove or relocate the plaque," with the preservation board required to "determine the specific place of honor which this worthy plaque shall occupy in the State Capitol" per the resolution that authorized its installation.

The historical commission, per the opinion, also has the authority regarding the monuments, but "the statute granting authority to the Historical Commission to remove or relocate a monument applies 'notwithstanding any other provision of [the Government Code].'"

When inquired on whether a monument could be removed through a judicial writ of mandamus, Paxton said that "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," as the writ is "an extraordinary remedy, available only in limited circumstances."

Considering the authority exercised by the legislature, the board, and the commission, Paxton stated that "a court is unlikely to grant mandamus relief" on a monument removal.

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