Untitled Texas Attorney General Opinion ( 1957 )

Honorable Penn J., Jackson Opinion No. WW-324
Chairman, State Board of Insurance
Austin, Texas Re: Questions concern-
ing the constltu-
tlonallty of con-
firmation by the
Senate of the State
of Texas of the
appointment of the
Commissioner of In-
surance by the State
Dear Judge Jackson: Board of Insuranoe.
You have requested an opinion on the folldwlng
questions:
1. Is the appointment of a Commissioner
of Insurance by the State Board of Insurance
subject to “the advice and consent of the Senate
of Texas”, or ls’such a provision calling for
confirmation by the Senate unconstitutional?
2. Assuming that confirmation by the Senate
Is valid, Is a simple majority vote of the members
of the Senate present and voting sufficient for con-
firmation of the Commissioner of Insurance, and,
If not, what percentage of vote Is necessary?
3. Assumln& that In the above two questions
It Is held that confirmation by the Senate Is
necessary and that the appointee has not received
the requisite number of votes as determined In
your second answer, thereby causing the rejection
of the appointment, may the appointee hold offloe
until his successor has been appointed and qualified
In accordance with Article XVI, Section 17, of
the Texas Constitution?
May I state at the beginning that the above
questions that you have requested an opinion on are questions
of first ,lmpresslon‘and have never been passed on or determln-
ed by a Texas Court. Furthermore, there are few Texas cases
which have dealt either directly or indirectly with the
-
Hon. Penn J. Jackson, Page 2 (WW-324)
subject that you have presented for consideration. ‘With
this statement In mind and In reply to your request, I
submit the following information:
Article II, Section 1, of the Constitution Of
the State of Texas provides that:
“The powers of the government of the State
of Texas shall be divided Into three dlstlnet
department 8, each of which shall be confided to
a separate body of maglstraoW, to wit: Those
which are legislative to one, those which are
executive to another, and those which are __
judicial to another; and no person, or colleo-
tion of persons, being of one of theee depart-
ments, ahall exercise any power properly attaohed
to either of the others, except in the instances
herein expressly permitted. ” (emphasis addea)
The above Artlole Is oommonly referred to as
the dlstributlng of power clause of the Texas Constitution.
It expresses the fundamental principle of American and Texas
government, the Doctrine of Separation of Powers. By ex-
press words the Article divides and distributes the powers
of the Texas government Into three distinct departments:
the legislative, executive, and judicial. Article II further
expresses this principle when it states that “no person or
collection of persons, being of one of these departmente,
shall exercise any power properly attached to either of the
_ _
others, exoept In the lns%an118 Tex. 449, 16 S.V.2d 609. The
Surmeme Court so de8lared that the confinutldn
or-rejection of appointees to ublio office lo an executive ‘0,.
runotion. Walker v. Baker, 19g S.W.2d 324. While there w
be lnstanoee In uhloh the powers of appointment and oonfirma-
tion are properly exercisable by the le~l~latlve braaoh as an
adjunct to Its legislative power, we think It is olear that
the power to confirm or reject the appointment of offioer8
attached to some other branch of government Is executive in
nature and Is a non-legislative power. Therefore, In order
for the Legislature to confer this non-legislative power upon
the Texas Senate, there must be some provlalon in the Conatltu-
tion whIoh expressly permits such delegation of power.
Article IV, Seotlon 12, of the Tex6s Conrtltntlon
provideo:
“All vaoanolee In State or distriot offioer,
except memberr of the Legislature, rhall be Tilled,
unless otherwise provided by law, by appointamt
or the Governor, whioh appointment, if mad6 ~duriag,
itn seasion, 6hall:.be with the advice and conrmt
0r two thirds 0r the Senate present. xi tide during
the reoeaa of the SeMte, the said appointee, or
.
Hon. Penn J. Jackson, Page 4 (G-324)
some other person to fill. such vacancy., shall, ,, ,.,,,
be nominated to the Sbna$e~du?lng, thg. first : .; ‘,
ten days~,of its ‘seMion. If rqj+ted, said
office shall Immediately become vacant, and the,,,
Governor shall, without delay, make ~furthernom- ”
lnatlons until a confirmation takes place. But
should there be no confirmation during the session
of the Senate; the Governor shall not, ther,eafter
appoint any,person to fQl such vacancy who has
been rejected,by the Senate, but may appoint some
other’person to fill, the vacancy until the next
sessldn of the Senate or until the regular elec-
tion to said office, should It sooner occur.
Appointments to vacancies In offices elective
by the people shall only continue until the first
general election thereafter.”
The above, Article expressly places, the executive
function of appqlntlng State and district offlaes ‘in, the
Governor,, unless oth,erwlse provided by law. The Article, ,,
by granting to the Senate the power to confiIln or reject
appointments when made by the Governor, has also provided
that the executive power of appointing such dfflclals shall
be shared with the Senate. This grant of a non-leglslatlve
power to the Senat,6,‘ls an instance’ln which one department
of the governmer$.exerclses a power that 1s “properly
attadhed” to anoth’er ‘department. Such exercise of a non-
leglslatl`` power by the Senate 18.&n instance that IS
“expressly permlt$ed” by the Texas “Constitution. It Is to
be not&d, however, that the appointment In queetion id not
one made by the Governor , ,nhlch, the Cbnstltutlon expm
permits the Senate to conflim, but the appointment in
question is one that Is made by.the Texas Insurance Board,
an administrative agency. Article IV, Section 12, does not
expressly grant aut~horlty to the Senate to ,,conflrm an appolnt-
ment made by a source other than the Governor unless the
phrase in Article IV, Section’ 12, “unless otherwise ,$ro-
vlded by law” can be held $6 grant to the Senate such ex-
press authority.
Examining the wording of Article IV, Section 12,
It Is noted that Article IV, Section 12, reads “which appolnt-
ment . shall be with the advice and consent of two-thirds
of the’ Sinate present. ” The use of the words “which appoint-
ment” has a definite meaning. It Is a well-knoom,rule both-
of statutory construotlon and’of English grammar that the
use of such, words 8,s “which,“’ ~suqh,,” etc.#: in connection
with a subject, refers dlrec,tly back,to’the immediately pre-
ceding subject matter. Pet%tileum Casualty Company v.
Hon. Penn J. Jabkson, Page 5 (VW-3241
nllliams, 15 S.W.2d 553; State v. Hou8tOn 011 COmpiny, .“_
194 s . w . 422;
39 Tex.Jur. 193. The lmmedlately pr&Oediiig
s6bject matter in this Article Is the “appolntmbmt of the-
Governor. ” Therefore, It Is reasonable to hold that the
phrase “shall be with the advice and oonsent of the Senate”
refers only to appointments made by the Clovernor. In the
case of Denleon v. State, 61 S.W.&d 1017, error refuead,
61 S.W.2d 1022, the court stated that Seotlon 12 of~lhhiole
IV of the Constitution .is plain, alear, unamblguoulr, and
oapable of but one construction and that the clause “unless
otherwise provided by law” refers to the nominating aathorlty
and has non reference~to the advloe and oons$nt of two-hhlrdr-
of the S%ate present. The oourt said:
“We think the language of seotlon 12,
art. &,,of the Constitution Is plain, clear,
unambiguous, and capable of btit one oonstruo-
Mon. That the olause ‘unless otherrolse pro-
vided by law’ refers to the nominating authority,
and ha8 no reference to ‘the advloe and consent
of two-thirds of the senate present.1 Thlfa lan-
guage clearly contemplates that the Legislature
may, ehould It see fit, provide by law for the
filling of offices oreated by It otherwise than
by appointment by the Oovernor, and that In suoh
event confirmation by the Senate Is not esBentlal.lt
It Is, therefore, our opinion that the phrase
“unless otherwise provided by law’ does not grant to the
Legislature a right to confer upon the Senate the non-leglr-
latlve power of confirming an appointment made by a Bouroe
other than the Governor.
Upon further examination of the Constitution we
find that there IB no general provision uhloh expressly
permits the Senate to confirm appolntmente to a pub110 offloe
made by a souroe other than the @overnor. On the contrary,
In Instances where the Senate has been granted the authority
to confirm or reject appointmenta made by a souroe other than
the Governor, eubh authority has been sp~olfloally and ex-
pressly granted In the Constitution. ?iB one .exBmple, oonrrlder
the movislons for the Board of Pardons and Paroles whloh is
a8 fiiiOWB1
1,
. . . One member of said board shall be
appointed by the Governor, one member by the
Chief Justice of the,SuFeme Court of the St&e
of Texas and one member by the presiding Justioe
of the Court of C,rlmlnal Appeals; the appointments
. . .
Hon. Penn J. Jackson, Page 6 (W-32$,)
of all members of said board shall be made
with the advlc,e and consent of two thirds
of the Senate present.” (Article IV,
Section 11, Board of Pardons and Paroles)
The above Article, by apelUng out the power of
the Senate to confirm appointments made by a souroe other
than the Governor, seems to bear out the fact that the
framers of the Constitution recognized and followed the
principle stated In Article II, Section 1, that no depart-
ment shall exercise powers that are properly attached to
another department unless the Constitution expressly per-
mits such exercise of power.
Therefore, beoause the confirmation and rejection
of the appointment of the Insuranoe CommlBsloner le a non-
legislative power, and al:ch grant of power to the Senate Is
not expressly permitted by the Constitution of Texas, the
conferring to the Senate of this power by Article 1.09,
Seotlon (a), of the Insurance Code la In violation of
Article II, Section 1, of the Texas Constitution and Is
therefore unconstitutional.
Because we are of the opinion that confirmation of
the appointment of the Insurance Commissioner by the Senate
IB unconstitutional, there Is no necessity to answer the
seoond and third questions of your request.
SUMMARY
The provision of Article 1.09, Section (a),
of the Insurance Code which provides that the
appointment of the Insurance Commissioner by the
Insurance Board shall be confirmed by the Senate
Is In violation of Article II, Section 1, of the
Constitution of Texas and Is therefore unoonstltu-
tional .
APPROVED: Yours very truly,
OPINIOI?CObMIlTREr WILL WILSON,
Geo. P. Blaokburn, Chairman Attorney General of Texan
John Webster
C. K. Rlahards
Mary K. Wall By &d&A
Rlohard B. Stone
Fi&VIEWED
FOR THE ATTORNEY GYNEKAL Adsistant
: Wm. V, Geppert