The Attorney General of Texas
August 16, 1983
JIM MATTOX
Attorney General
Honorable Ed Howard opinion No. JM-58
Suxeme Court Buildina
P. 6. Box 12540 -
Chairman
Austin. TX. 76711. 2546 Subcommittee on Nominations Re: senate confirmation of
5121475-2501 Texas State Senate agency heads
Telex 9101674-1367 P. 0. Box 12068, Capitol Station
Telecopier 5121475-0266
Austin, Texas 78711
1607 Main St., Suite 1400 Dear Senator Howard:
Dallas, TX. 75201-4709
2141742.6944 You ask us:
4624 Alberta Ave.. Suite 160
May the legislature require senate confirmation
El Paso, TX. 79905-2793 for heads of agencies of the executive branch of
9151533-3464 government created by statute?
,-
You do not indicate about which agencies you are concerned, nor do you
,220 Dallas Ave.. suite 202
Houston. TX. 77002-6986 indicate whether those "heads of agencies" are officers or employees.
7131650-0666 You do indicate that you are concerned only about heads of agencies in
the executive department created by statute who are not appointed by
the governor. Since you raise no question concerning district or
606 Broadway, Suite 312
local officers, no discussion touching them is necessary. We conclude
Lubbock, TX. 79401.3479
6061747-5236
that article IV, section 12 of the Texas Constitution clearly empowers
the senate to confirm the appointment of heads of agencies in the
executive department who occupy state offices appointed by the
4309 N. Tenth. Suite 6 governor. However, any attempt by the legislature to require senate
McNen. TX. 76501-1665
confirmation of heads of agencies in the executive department who are
5121662-4547
employees or who are officers appointed by persons other than the
governor would violate article II, section 1 of the Texas
200 Main Plaza. Suite 400 Constitution, the so-called "separation of powers" provision.
San Antonio. TX. 76205-2797
5121225-4191
Article IV, section 12 of the Texas Constitution provides in
pertinent part:
An Equak Opportunity1
Affirmative Action Employer All vacancies 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, if made during its
SW-SiOll, shall be with the advice and consent of
two-thirds of the Senate present.
Article II, section 1 of the Texas Constitution sets forth the
following:
Honorable Ed Howard - Page 2 (JM-58)
Section 1. The powers of the Government of the
State of Texas shall be divided into three
distinct departments, each of which shall be
confided to a separate body of magistracy, 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 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).
We note at the outset the generally limited nature of the
governmental power conferred upon the senate. The power to make
appointments is executive and not legislative. State v. Manry, 16
S.W.2d 809, 813 (Tex. 1929). The confirmation power exercised by the
senate is not a leeislative oower. but rather an exnresslv delegated
executive power. Walker v. 'Baker; 196 S.W.2d 324, '328 (Tex. 1946);
Denison v. State, 61 S.W.2d 1017, 1021 (Tex. Civ. App. - Austin), writ
ref'd. 1022 (Tex. 1933).
To that extent it [i.e. the power to confirm or
reject gubernatorial appointments] 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. Under those
circumstances there is no ground for relator's
contention that the power asserted in this case
exists because not expressly prohibited. It being
a power ordinarily and intrinsically belonging to
another department of the government, . . . and
the means and time for its exercise being provided
in Art. III, Sec. 5, supra, no other or different
means can be implied . . . . In other words,
since the Constitution specifies the circumstances
under which the Senate may defeat the Governor's
appointments, there is an implied prohibition
against its power to add to those
circumstances . . . . "The declaration (of Art.
II, SW. 1) is that the executive, legislative,
and judicial departments shall exist, -- this is
the fiat of the people, -- and neither one nor all
of the departments so created can enlarge,
restrict or destroy the powers of any one of them,
except as the power to do so may be expressly
given by the constitution." (Emphasis added).
Walker v. Baker, sup+a. at 328.
p. 246
Honorable Ed Howard - Page 3 (~~-58)
Logically only four possible situations give rise to questions
concerning the senate's confirmation power of heads of agencies in the
executive department under the Texas Constitution. The first
situation involves an officer who is a state or district officer, and
who is appointed by the governor. The second situation involves
someone who is -
not a state or district officer and who is appointed by
the governor. Because you ask about someone who is not appointed by
the governor, we need not address these situations. The third
situation involves someone who is a state or district officer but who
is not appointed by the governor. The fourth situation involves
someone who is not a state officer and who is not appointed by the
governor. The third and fourth situations are the ones which we shall
discuss.
The third situation involves state officers in the executive
department -not appointed by the governor. In the absence of a
constitutional provision to the contrary, the legislature can provide
for means of appointment other than by the governor. Denison v.
State, supra, at 1020. _See Attorney General Opinion V-1132 (1950)
(legislature provided that appointment to vacancy on Texas Citrus
Commission to be by quorum of remaining members of commission).
Any attempt by the legislature to require senate confirmation of
a state officer in the executive department appointed by someone other
than the governor is, however, unconstitutional. In Attorney General
Opinion WW-324 (1957). this office concluded that a statute which
required senate confirmation of a commissioner of insurance who is
appointed by the State Board of Insurance violated article II, section
1 of the Texas Constitution. the "senaration-of-vowers" orovision. and
was therefore unconstitutional. Reiying on Waiker v. 'Baker, &,
the opinion declared:
While there may be instances in which the powers
of appointment and confirmation are properly
exercisable by the legislative branch as an
adjunct to its legislative power, we think it is
clear that the power to confirm or reject the
appointment of officers 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
provision in the Constitution which expressly
permits such delegation of power.
Attorney General Opinion WW-324 (1957). The opinion noted that while
article IV, section 12 expressly delegates such a power, it appertains
only when the appointment in question is one made by the governor, not
one that is made by an administrative agency. This office then
concluded that there is no general provision which expressly permits
p. 247
Honorable Ed Howard - Page 4 (JM-58)
?
senate confirmation of an appointment made to the executive department
other than by the governor, and that any instances in which the senate
has been granted authority to confirm such appointments have been
specifically and expressly granted in the constitution. See, e.g.,
Tex. Const. art. IV, §ll (concerning appointment to Board of Pardons
and Paroles).
It has been suggested that Attorney General Opinion WW-324 (1957)
relies on mere dicta from Walker v. Baker in reaching its conclusion.
We agree that the issue in the Walker case was whether the senate
could lawfully convene of its own motion to consider recess
appointments made by the governor, not whether the legislature could
require senate confirmation of state or district officers in the
executive department appointed by someone other than the governor.
However, we decline to characterize the court's discussion as mere
dicta for two reasons. First, the extensive discussion in the Walker
case is the only instance in which the Texas Supreme Court has
discussed this specific issue. It affords us the only guidance that
we have. Second, the proposition set forth in the Walker case as to
the limited nature of the senate's confirmation power is in accord
with the rule of law in other jurisdictions. See, e.g. Myers v.
United States, 272 U.S. 56 (1926); Bradner v. Hammond, 553 P.2d 1
(Alaska 1976); Wittler v. Baumgartner, 144 N.W.2d 62 (Neb. 1966);
Tucker v. State, 35 N.E.2d 270 (Indiana 1941); State v. Dowling, 120
So. 593 (La. 1928); People v. Shawver, 222 P. 11 (Wyo. 1924).
It has further been suggested that the legislature m=y
inherently, by means of enabling legislation, reserve to itself the
power of confirmation or rejection of appointments to an office in the
executive department not a state or district office. Simply put, the
argument is that, if the legislature has the power to create the
office or agency, it is concomitantly empowered to create the means of
filling it. We disagree.
This office considered such an argument in Attorney General
Opinion WW-324 (1957) and explicitly rejected it. Because the
discussion is particularly apposite, we quote it in extenso:
Examining the wording of Article IV, Section
12, it is noted that Article IV, Section 12, reads
"which appointment . . . shall be with the advice
.and consent of two-thirds of the Senate present."
The use of the words "which appointment" has a
definite meaning. It is a well-known rule both of
statutory construction and of English grammsr that
the use of such words as "which," "such," etc., in
connection with a subject, refers directly back to
the immediately preceding subject matter.
Petroleum Casualty Company v. Williams, 15 S.W.2d
553; State v. Houston Oil Company, 194 S.W. 422;
p. 248
Honorable Ed Howard - Page 5 (JM-58)
39 Tex. Jur. 195. The immediately preceding
subject matter in this Article is the "appointment
of the Governor." Therefore, it is reasonable to
hold that the phrase "shall be with the advice and
consent of the Senate" refers only to appointments
made by the Governor. In the case of Denison v.
State, 61 S.W.2d 1017, error refused, 61 S.W.2d
1022, the court stated that Section 12 of Article
IV of the Constitution is plain, clear,
unambiguous, and capable of but one construction
and 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. The court said:
"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
contemplates that the Legislature may,
should it see fit, provide by law for
the filling of offices created by it
otherwise than by appointment by the
Governor, and that in such event
confirmation by the Senate is not
essential."
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-legislative power of confirming an
appointment made by a source other than the
Governor.
We reaffirm the rationale and conclusion of Attorney General
Opinion WW-324 (1957) with respect to this issue and conclude that any
attempt by the legislature to require senate confirmation of heads of
agencies in the executive department who are appointed other than by
the governor is an impermissible violation of article II, section 1 of
the Texas Constitution.
The final situation giving rise to questions regarding the scope
of the senate's confirmation authority involves persons who are not
state officers in the executive department, but rather state
employees. In WW-190 (1957), this office considered, inter alla, the
p. 249
Honorable Ed Howard - Page 6 (JM-58)
constitutionality of a statute which required the secretary-director
of the Teachers Retirement System to be confirmed by the senate. The
secretary-director was appointed by the board of trustees of the
system. The opinion concluded that the secretary-director was an
employee, not an officer, for which no confirmation by the senate is
necessary, and that, moreover, any attempt by the legislature to
require such confirmation was invalid and unconstitutional.
It seems quite clear to us, by the express wording
of this provision of the Constitution [art. IV,
sec. 121, it applies only to vacancies in State
and district offices and has no application to
State employees, regardless of whether appointment
is made by the Governor or by some other
appointive authority under that portion reading as
follo"s: "shall be filled unless otherwise
provided by law."
Relying on Walker v. Baker, E, Denison v. State, w, and
article II, section 1 of the Texas Constitution, this office declared:
Sec. 12 of Art. IV of the Constitution 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 =*y 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. (Emphasis added).
We find the reasoning of Attorney General Opinion WW-190 (1957)
compelling and confirm again its conclusion.
It is a generally recognized principle of constitutional law that
where a power is expressly given by the constitution and the means by
or the manner in which it is to be exercised is prescribed, such means
or manner is exclusive of all others. Walker vi Baker, supra at 327;
Parks v. West, 111 S.W. 726, 727 (Tex. 1908); White v. State, 440
S.W.2d 660, 665 (Tex. Crim. APP. 1969). Moreover, when the
constitution defines the circumstances under which a right may be
exercised, the specification is an implied prohibition against
legislative interference to add to the condition. Walker v. Baker,
supra at 327; Ferguson v. Wilcox, 28 S.W.2d 526, 531 (Tex. 1930);
p. 250
Honorable Ed Howard - Page 7 (JM-58)
Arnold v. Leonard, 273 S.W. 799, 802 (Tex. 1925); Lytle V. Halff, 12
S.W. 610, 612 (Tex. 1889). In order that the senate's confirmation
power come into play under article IV, section 12 of the Texas
Constitution, two conditions precedent must be met: first, that the
person appointed must be appointed to a state or district office in
the executive department; and second, that the person be appointed by
the governor.
SUMMARY
Article IV, section 12 of the Texas
Constitution empowers the senate to confirm or
reject the appointments by the governor of heads
of agencies in the executive branch who are state
officers. Any attempt by the legislature,
however, to enlarge such power by extending it to
include heads of agencies in the executive branch
who are employees, who are not state or district
officers, or who are state or district officers
not appointed by the governor, constitutes an
impermissible violation of article II, section 1
Jk
of the Texas Constitution.
Very trul y r
JIM MATTOX
Attorney General of Texas
TOM GREEN
First Assistant Attorney General
DAVID R. RICHARDS
Executive Assistant Attorney General
Prepared by Jim Moellinger
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Rick Gilpin, Acting Chairman
Jon Bible
Susan Garrison
George Gray
Jim Moellinger
Nancy Sutton
p. 251