Untitled Texas Attorney General Opinion ( 1957 )

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TEIEATTORNEY GENERAL
OF TEXAS
AUST’IN 11.%-E=S
WILL WILSON
*TrGRNEY GENERAI.
July 15,1957
Hon. Robert S. Calvert Opinion No. WW 190
Comptroller of Public Accounts
Capitol Station Re: Claim of $799.81 of Frank
Austin, Texas M. Jackson, Secretary-
Director of the Teachers
Dear Mr. Calvert: Retirement System
YOU have referred to this office for advise as to the authority
of the Legislature to make an appropriation to pay the above captioned
claim. We are treating your reference as an official opinion request.
TheFifty-fifth Legislature has made an appropriation to
Mr. Jackson in the amount above indicated to pay his claim. The
claim is based upon Mr. Jackson’s salary as Secretary-Director
of the Teachers Retirement System for the full month of March,
1957, in the s,utn of $750.00 and $175.00 for seven days for the
month of April. This claim is for the net salary for the month of
March in the sum of $624.81 and $175.00 for seven days in the month
of April, aggregating a total of $799.81 which sum was appropriated
by the Legislature. This $175.00 will be subject to the usual deductions.
You submitted an affidavit of Mr. Jackson which reveals most
of the facts, but some are added which we have obtained from The Teach-
ers Retirement System. We quote the pertinent part of Mr. Jackson’s
affidavit.
“I was appointed Executive Secretary-Director
of Teacher Retirement System of Texas by the State
Board of Trustees, Teacher Retirement System of
Texas on March 1, 1957 at a monthly salary of $750.00.
I assumed my duties as of March 1, 1957. The Chairman
of the Board of Trustees of the Teacher Retirement
System told me I would be paid from March 1, 1957.
“On March 31, 1957, I received a State Warrant
in the net amount of $624.81.
“I was confirmed by the State Senate on April 8,
1957. On April 9, 1957, Robert S. Calvert, State Comp-
toller of Public Accounts called me and advised that
I should repay the Teacher Retirement System the
amount of the warrant plus $15.00 Teacher Retirement,
$16.99 Social Security and $93.20 withholding tax for
Hon. Robert S. Calvert page 2 (WW-190)
March1957. I have complied with the request of the
State Comptroller in returning the full amount of
$750.00.
“This claim is made for the March 1957 net
salary plus an additional 7 days in April in the
gross amount of $175.00, making a total of $799.81.”
We add the resolution taken from the minutes of the Teachers
Retirement Board, dated February 28, 1957, which is as follows:
“Mr. Frank Jackson of San Angelo, Texas, was
unanimously elected as Executive Secretary to fill
the position of Mrs. B. B. Sapp.”
Sub-seci 4 of Sec. 12 of Article 2922-1 Vernon’s Civil Statutes
provides as to the executive duty in part as follows:
“He shall recommend and nominate to the State
Board of Trustees such actuarial and other service
as shall be required to transact the business of the
Retirement System.”
Sub-sec. (a) of Sec. 12 of Article 2922-l Vernon’s Civil Statutes
is as follows:
“The general administration and responsibility
for the proper operation of the Retirement System and
for making effective the provisions of this Act are here-
by vested in a State Board of Trustees, which shall con-
sist of seven members who shall be appointed as follows:”
Mr. Jackson assumed his duties as Executive-Secretary on
March 1, 1957, and has continuously served in that capacity. When he
assumed his duties on March 1, 1957, he did not take an oath of office
nor is any required of him by any provision of the law governing the
Teachers Retirement System. He did give a bond in the s urn of
$25,000.00 payable to the State Board of Trustees as provided in
Sub-section 2 of Sec. 16 of Art. 2922-l V.C.S. Under date of March
12, 1957, Mr. Jackson’s appointment as Executive Secretary was sub-
mitted to the Senate for confirmation or rejection and the same was
confirmed by the Senate on April 8, 1957.
Mr. Jackson took the usual constitutional oath of office, al-
though the statute nowhere required him to take an oath, and the
Governor issued a commission to Mr. Jackson on April 10, 1957
Hon. Robert S. Calvert page 3 (WW-190)
Our answer as to the validity of this appropriation depends
upon whether Mr. Jackson is an officer of the State, as distinguished
from an employee of the Board or more properly speaking an em-
ployee of thenState. If an officer of the State, then for the purpose of
this opinion we assume the provision of the statute requiring conflr-
mation by the Senate is valid. But since his appointment was while
the Legislature was in session and was submitted to the Senate while
in session his appointment as an officer of the State, if he is one, was
not complete until confirmed by the Senate. There would be no legal
basis to pay him as such officer until his appointment was completed
by confirmation of the Senate.
In 81 C.J S. 1001, we find this language:
“The governor, in exercising his power of ap-
pointment must, if the law so requires, act in con-
junction with another body, and he cannot exercise
the power of appointment alone, but must obtain
proper confirmation of his appointment before such
appointment is valid;. . .”
In support of this statement from the text is cited Denison
v. State, 61 S.W.Zd 1017 (Civ. App 1933 Error Ref.) Denison v.?%&-&
rel Allred, 122 Tex. 459, 61 S.W.2d 1022 (1933). The rule is clearly
stated in the case of McBride vs. Osborn, 127 Pac. 2d, 134 Supreme
Court of Arizona in the following language:
*a
. . .The approval of the senate is just as necessary
as the action of the executive to complete the appointment
and give the appointee any right whatever to take over the
office and discharge its duties. In McCall v. Cull, 51 Ariz.
237, 75 P.2d 696, 699, the court used the following lan-
guage in discussing an appointment to the Live Stock
Sanitary Board, which the law requires to be done with
the advice and consent of the Senate:
” ‘* * * Under this statute, his power to appoint is
in conjunction with the Senate. The two must concur.
The Governor cannot exercise the power alone. He may
put into motion this joint power by first appointing the
officer, but such appointment is ineffective until and un-
less ratified or confirmed by the Senate.***’ ”
In brief if Mr. Jackson’s appointment by the Board of Trustees
is to an office of the State as distinguished from an employee he had no
legal right to assume the duties of the office until his confirmation was
completed. The appointment was made while the Legislature was in
session. It would, therefore, follow that if he was appointed an officer
of the State and prematurely assumed that office he would have no ‘right
to compensation prior to confirmation.
Hon. Robert S. Calvert Page 4 (WW-190)
If Mr. Jackson is an employee of the State, as distinguished
from an officer, the appropriation is valid for he assumed his duties
as such employee on March ist, and is entitled to be paid out of the
appropriation available to the State Retirement System to pay for
such services, which he has faithfully discharged from March 1st
up to the present date.
We have reached the conclusion that Mr. Jackson is not an
officer of the State but an employee and that his confirmation by the
Senate was not required and the attempt of the Legislature to require
it is invalid and unconstitutional.
The most recent decision by the Supreme Court on the sub-
ject and the distinction to be made between an officer and an employee
is stated in the case of Aldine Independent School District v. Standley,
154 Tex. 547, 280 S.W.2d 5 (8 (1958) stated in this language:
“We think, that the determining factor which
distinguishes a public officer from an employee is
whether any sovereign function of the government
is conferred upon the individual to be exercised by
him for the benefit of the public largely independent
of the control of others.” (Emphasis added)
What separate and independent functions of the government
are conferred upon Mr. Jackson to be exercised by him for the benefit
of the public independent of the control of the Board? The answer is
none unless we can say that the following from the statute (Sec. 12
Art. 2922 V.C.S.) is all sufficient: “he shall recommend and nominate
to the State Board of Trustees such actuarial and other service as shall
be required to transact the business of the Retirement System.” This
activity is still subject to and subordinate to the Board. Moreover, the
above quoted Sub-sec. (a) of Section 12 of the Statute (Art. 2922 V.C.S.)
vests the administration and responsibility for the proper operation of
the Retirement System and for making effective the provision of the
law setting up the System, in the Board of Trustees.
Mr. Jackson is at all times subject to the control and direct-
ion of the Board of Trustees and possesses little or no authority inde-
pendent of the Board. The statute (Art. 2922 V.C.S.) does not fix any
limitations upon his tenure as Executive Secretary. This being true,
he serves at the pleasure of the Board, whereas if he be an officer of the
State his term would be limited to filling out the unexpired term of his
predecessor. Her term could not exceed two years by virtue of Sec.
30 of Article XVI of the Constitution of Texas which provides in part
as follows: “The duration of all offices not fixed by this Constitution
shall never exceed two years;. . .” He could not be removed except for
cause and then would be entitled to a trial by jury. Knox et al v.
Johnson, 141 S.W.2d. 698 (1940 Writ Ref.)
.
Hon. Robert S. Calvert Page 5 (WW-190)
The only alternative for removal of an officer of the State
is by impeachment. In brief if he be an officer of the State he does
not serve at the discretion of the appointive power. If an employee
he does.
This brings us to the question: Must his appointment by
the Board be submitted to and confirmed or rejected by the Senate?
If that part of the statute requiring this is valid, regardless of
whether he is an officer or employee, then it must be obeyed. The
provision of the Constitution pertinent herein dealing with filling -
vacancies in state and district offices is Sec. 12 of Art. IV of the
4:
Constitution of Texas which is as follows:
“Sec. 12. All vancancies in State or district
offices, except members of the Legislature, shall
be filled unless otherwise, provided by law, by
appointment of the Governor, which appointment,
is made during its session, shall be with the advice
and consent of two-thirds of the Senate present. If
made during the recess of the Senate, the said ap-
pointee, or some other person to fill such-vacancy,
shall be nominated to the Senate during the first ten
days of its session. If rejected, said office shall im-
mediately become vacant, and the Governor shall,
without delay, make further nominations, until a
confirmation takes place. But should there be no
confirmation during the session of the Senate, the
Governor shall not thereafter appoint any person to
fill such vacancy who has been rejected by the Senate;
but may appoint some other person to fill the vacancy
until the next session of the Senate or until the regular
election to said office, should it sooner occur. Appoint-
ments to vacancies in offices elective by the people
shall continue until the first general election thereafter.”
(Emphasis added)
There is no special constitutional provision dealing with the
Executive-Secretary of the Teachers Retirement System. Hence it is
referable to the foregoing provision, if it is applicable. It seems quite
clear to us, by the express wording of this provision of the Constitution,
it applies only to vacancies in State and district offices and has no appli-
cation to State employees, regardless of whether appointment is made
by the Governor or by some other appointive authority under that
portion reading as follows: “shall be filled unless otherwise provided
by law.” The Courts have held that the next proceeding provision ap-
plies to appointlve authority and not to the provision requiring confir-
mation or rejection by the Senate. In other words this provision per-
mits the filling of vacancies in state offices by other authorities than
Hon. Robert S. Calvert Page 6 (WW-190)
the Governor; but it does not follow that such appoinhents’tiust becon-
firmed by the Senate. This is the express holding in case of Denison
V. State, 61 S.W.2d 1017 (1933 Error ref.) expressed in the following
language:
“We think the language of section 12, art. 4,
of the Constitution is plain, clear unambiguous,
and capable of but one construction. That the
clause ‘unless otherwise provided by law’ refers
to the nominating authority, and has no reference
to ‘the advice and consent of two-thirds of the
senate present.’ This language clearly contem-
plates that the Legislature may, should it see fit,
provide by law for the filling of offices created by
it otherwise’than by appointmenme Governor,
and that in such event confirmation by the Senate
is notessential.” (Emphasis added)
The power of confirmation by the Senate is not Legislative
but Executive. The Supreme Court has so held in the case of Walker
v. Baker, 145 Tex. 121, 196 S.W.2d 324 (1946) as follows:
“Confirmation or rejection of the Governor’s
appointments is an executive function expressly
delegated to the Senate. Denison v. State, Tex. Civ.
App., 61 S.W.2d 1017, error refused. To that extent
it represents a permitted invasion by one branch of
the Legislature of that field of power which is confided
to the executive department by Art. II, Sec. 1, of the
Constitution.”
Sec. 12 of Art. IV of the Constitution of Texas conferring
this limited executive power upon the Senate constitutes an exception
to Sec. 1 of Art. II of the Constitution of Texas, which is as follows:
“Section 1. The powers of the Government of
the State of Texas shall be divided into three dis-
tinct departments, each of which shall be confided to
a separate body of magistracy, towit: Those which
are Legislative to one; those which are Executive to
another, and those whichare Judicial to another; and
no person, or collection of persons, being of one of
these departments, shall exercise any power properly
attached to either of the others, except in the instances
herein expressly permitted.” (Emphasis added)
If Mr. Jackson is an officer of the State he was appointed
by the proper authority, and the statutory requirement of submission
of his appointment to the Senate for confirmation or rejection we as-
. .*. .
Hon. Robert S. Calvert Page 7 (WW-190)
sume for the purpose of this opinion is valid. But it seems quite
clear to us that if Mr. Jackson is an employee as distinguished
from an officer of the State that Sec. 12 of Art. IV of the Constitu-
tion of Texas affords no constitutional basis for Senate action upon
his appointment for the simple reason that State employees are not
covered by that section of the Constitution or any other insofar as
confirmation or rejection of the appointment is concerned. Sec. 12
of Art. IV of the Constitution of Texas may not be enlarged to embrace
employees when they are not covered by it and any legislative attempt
to invoke the action of the Senate by confirmation or rejection as to
employees would be a clear violation of Sec. 1 of Art. II in that the
Senate would be discharging executive functions clearly forbidden
by that section. Walker vs. Baker, 145 Tex. 121, 196 S.W.2d 324
(1946). What was said by the Supreme Court in an early case,
Houston Tap & B.R. Company vs. Randolph, 24 Tex. 317 is appro-
pr iate here .
“‘The second article of the constitution provides
that ‘the powers of the government of the State of
Texas, shall be divided into three distinct depart-
ments, and each of them be confined to a separate
body of magistracy, towit, those which are legisia-
tiRre to one, those which are executive to another,
and those which are judicial to another; and no person
or collection of persons, being of one of these depart-
ments shall exercise any power, properly attached to
either of the others, except in the instances herein ex-
pressly permitted. 0. & W. Dig. 14. Here is a direct
prohibition of the blending of the departments. It con-
templates that the persons employed in each depart-
ment, will be wise enough, and honest enough, to dis-
charge the duties intrusted to them, without the aid
or interference of the others. And it is a full warrant
for each department to disregard and repel such
volunteer and unauthorized aid and interference. For
as before said, each one of these departments acts
under a delegated limited authority, and if one exceeds
its authority, by usurping powers not belonging to it,
its act is a nullity, not binding upon the other depart-
ments, and may be totally disregarded by them.”
We do not mean to imply that the position of the Executive-
Secretary of the Teachers Retirement System is not an important
position; indeed it is. It is one of honor and trust and, of course, of
emolument, but it does not rise to the stature of an officer of the
state in any sense in which confirmation by the Senate could be
constitutionally required.
Hon. Robert S. Calvert Page 8 (WW-190)
We, therefore, hold that Mr. Jackson is not a State Officer
but an employee and that the statutory provision requiring the suc-
mission of his appointment by the Board to the Senate for confirma-
tion is void and unconstitutional in that it violates Sec. 1 of Art. II
of the Constitution of Texas, which says “and no person or collection! :
of persons being of one of the departments shall exercise any power
properly attached to either of the others”.
Mr. Jackson’s appointment has been valid from its inception
and he is entitled to his salary for the period of time it has been with-
held from him and you have the authority to issue a warrant pursuant
to the appropriation made by the Legislature to pay the same.
SUMMARY
The appointment of a state employee as distin-
guished from an officer of the state does not
require confirmation by the Senate under Sec.
12 of Art. IV of the Constitution of Texas and
an Act of the Legislature requiring such confir-
mation is invalid and unconstitutional. A state
employee is entitled to receive his salary from
inception of his appointment regardless of any
statutory requirement for confirmation.
Very~ truly yours,
WILL WILSON
Attorney General of Texas
Ass is tant
LPL/fb
APPROVED:
QPINION COMMIT:TEE:‘.:
H. GradyCChZuldler, Chairman
Ci.1.:. Richards
Marvin Thomas
John Lennan