Honorable Preston Smith Opinion No. M-728
Governor of the State of Texas
State Capitol Building
Austin, Texas 787 11 Re: Whether Price Daniel is
eligible for appointment
to the Texas Supreme Court
in view of the fact his son
is a member of the House
Dear Governor Smith: of Representatives?
,-~
Your recent request for an opinion of this office poses the follow-
ing question:
“Would you please advise this office whether or not
fokn.&r governor, PrikDaniel, is eligible for ap-
pointment to the Supreme Court of Texas, since his
son, Price Daniel, Jr., is a member of the Texas
House of Representatives? ”
We fitid that the eligibility qualifications for the office of a Supreme
Court Justice and the authoTization for appointments to fill such a vacancy
are set out in the Constitution of Texas, which created the Supreme Court
by its Sections. 1 and 2 of Article V. The provisions of Article V relating
to eligibility and appointments are as follows:
“Sec. 2. The Supreme Court shall consist of a Chief
Justice and eight Associate Justices, any five of whom
shall constitute a quorum, . . . No person shall be eli-
gible to the office of Chief Justice or Associate Justice
of the Supreme Court unless he be, at the time of his
election, a citizen of the United States and of this state,
and unless he shall have attained the age of thirty-five
years, and shall have been a practicing lawyer, or a_
lawyer and judge of a court of record together at least
ten years. . . . In case of a vacancy in the office of any
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Honorable Preston Smith, page 2 (M-728)
Justice of the Supreme Court, ‘the Governor shall fill
tne vacancy until the xx-general election for state of-
ficers, and at such general election the vacancy for the
unexpired term shall be filled by election by the quali-
fied voters of the state . . .I’ (Emphasis added.)
“Sec. 28. Vacancies in the office of judges of the Supreme
Cart, the Court of Criminal Appeals, the Court of Civil
Appeals and the District Courts shall be filled by the Governor
until the next succeeding General Election; . , . ” (Emphasis
added. )
Other constitutional qualifications and disqualifications applicable
alike to .judges and other offices of public trust are contained in Sections
2, 5, 12, 40 and 41 of Article XVI, and Section 4 of Article XV, of the Texas
Constitution. None of these constitutionally enumerated disqualifications re-
lates to kinship with a member of the Legislature.
Although the above quoted specific provisions for appointments by
the Governor to fill judicial vacancies do not require Senate confirmation,
this rCfice expressed the opinion in Attorney General’s Opinion No. O-1092
(1939) that the general provisions of Section 12 of Article IV are applicable
to these judicial appointments and require that they be confirmed by the
Senate. This interpretation has been followed for many years by Texas
Governors and Senates. The relevant portion Section 12 of Article IV reads:
“Sec. 12. All vacancies in State or district offices,~
except members of the Legislature, shall be filled un-
less otherwise provided by law, by appointment of the
Governor, which appointment, if made during its ses-
sion, shall be with the advice and consent of two-thirds
of the Senate present. If made during the recess of the
Senate, the said appointee, or some other person to fill
such vacancy, shall be nominated to the Senate during
the first ten days of its session . . . Appointments to
vacancies in offices elective by the people shall only
continue until the first general election thereafter. ”
Your inquiry thus raises the controlling question of whether the
general statutory provisions of the Anti-Nepotism Law (Articles 432-435 of
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Honorable Pr.eston Smith, page 3 (M-728)
Vernon’s Penal Code) apply to those offices created by the Constitution and
for which the Constitution has enumerated the qualifications of those eligible
to serve and the method of appointment to fill vacancies. We quote the per-
tinent portion of Article 432:
“No officer of this State nor any officer of any district,
county, city, precinct, school district, or other muni-
cipal subdivision of this State, nor any officer or mem-
b’er of any State district, county, city, school district
6k other municipal board, or judge of any court, created
by or ‘under authority of any General or Special Law of
this State, nor any member of the Legislature, shall ap-
point, or vote for, or confirm the appointment to any of-
fice’, poiition, clerkship, employment or duty, of any
person related within the second degree by affinity or
within the third degree by consanguinity to the person So
appointing or so voting, or to any other member of any
such board, the Legislature, or court of which such per-
sorl so’ appointing or voting may be a member, when the
salary, fees, or compensation of such appointee is to be
paid for, directly or indirectly, out of or from public
funds or fees of office of any kind or character whatso-,
ever; . . .‘I
Article 433 enumerates the offices to which “The inhibitions set
forth in this law. . . ” shall apply, including executive officers, judges, mem-
bers of the Legislature, members of State Boards, school boards, city
councils, etc. Article 434 prohibits trading of appointments, and Article
435 prohibits payment of warrants or other conpensation to ‘I. . . such ineli-
gible officer or person, knowing him to be so ineligible. ”
, It is apparent that the Act was intended to cover a vast number of
statutory State, district, county and city offices and to make ineligible for
appointment relatives of the appointing or confirming officers. With refer-
ence to statutory offices, the Act has been held valid in numerotis decisions
of the Courts and opinions of the Attorney General. Although the language
of the statute is comprehensive enough to apply to constitutional officers
whose qualifications are fixed by the Constitution, our research reveals
that no decision exists which holds that they are applicable to such offices.
Consequently, the fact situation presented by your request, as applied to
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Honorable Preston Smith, page 4 (M-728)
the anti-nepotism statute, presents a legal question of construction of Ar-
ticle 432 which has not been previously passed upon in this state.
Article 432 has been construed by this office to apply to a brother
of one of the members of the Legislature (House) so that he might not be
appointed to serve on the Board of Directors of the Guadalupe-Blanc0
Authority. Attorney General Opinion No. O-6428 (1945). However, there
is no opinion of this office passing upon the application of this statute to
those officers whose qualifications on grounds of eligibility or ineligibility
are prescribed by the Constitution of Texas, and therefore any Attorney
General opinions which have construed the statute would be distinguishable
from this situation presented.
The rule in Texas and in a majority of the other states is stated in
34 ALR2d 155, 163-171, as follows:
“Generally speaking, a state legislature’s powe; as to
prescribing eligibility qualifications for constitutional
officers ordinarily is not equivalent to its power to pre-
scribe such qualifications for statutory offices . . .
(p. 163. )
“It is quite generally considered that where a Constitu-
tion lays down specific eligibility requirements for a par-
ticular constitutional office, the constitutional specifica-
tion in that regard is exclusive and the legislature (except
where expressly authorized to do so) has no power to re-
quire additional and different qualifications for such con-
stitutional office. ” (p. 17 1. )
This general majority rule is stated in 81 C. J. S. 988, States, Sec.
66; 42 Am. Jur. 909, Public Officers, Sec. 38, notes 11 and 12; 42 ALR 909;
47 ALR 481; 95 ALR 294; 143 ALR 599; 18 ALR2d 241 and 71 ALR2d 352.
Does the Texas Constitution, either expressly or impliedly, give
the Legislature the power to impose additional or different qualifications
for a Justice of the Supreme Court than those set out in Article V, Section
2? We can find no such power. Article V, Section 2, confers no such legis-
lative power, nor does any other Section under Article V, covering the Judi-
cial Department. We further observe that the legislative power to pass
nepotism statutes is not even mentioned in the Constitution.
-3531-
Honorable Preston Smith, page 5 (M-728)
The subject of nepotism is deemed to be one personal type of
disqualification for office. 22 RCL 401, 88 ALR 1103. The enactment
of nepotism statutes finds its validity in the exercise of the police power,
and the legislature “may prescribe such qualifications for the holding of
a statutory office as it sees fit, as long as it does not interfere with any
-qualification prescribed by the Constitution. ” 88 ALR 1104. (Emphasis
added. ) See Ann. Cas. 1917D, 735.
We will now discuss the ledding Texas cases in support of the fore-
going rule of constitutional construction. The first is Dickson v. Strickland,
114 Tes. 176, 265 S. W. 1012 (1924) in . which Mrs. Ferguson’s eligibility
for the offi~ce of Governor was challenged because she failed to meet resi-
dence requirements of Articles 3082 and 3083a, which were not set forth
in the Texas Cotistitution for the office of Governor, and also because the
common law prohibited a woman from serving as Governor. With reference
to the statutes which purported to add residence qualifications, the Texas
Supreme Court declared:
II . In so far as this act related to officers, such as
the Governor, whose qualifications had been particularly
and carefully and differently enumerated in the Consti-
tution, it cannot be doubted that it was utterly void. ”
(at p. 1015. )
The Supreme Court cited 9 RCL 1124 and Cooley’s Constitutional
Limitations (7th Ed. ), page 99 for cases from other states, and quoted
the following language from the Supreme Court of Illinois in People v.
McCormick, 103 N. E. 1057:
” ‘In our judgment, when the Constitution undertakes to
prescribe qualifications for office, its declaration is con-
clusive of the whole matter, whether in affirmative or in
negative form. Eligibility to officn belongs to all persons.
In our Constitution no other form bf stating eligibility to
office is found than the declaration that no person shall be
eligible who does not possess certain qualifications. The
Constitution of the United States is in the same form in
this particular. and so are the Constitutions of other states.
The expression of the disabilities specified excludes others.
The declaration in the Constitution that certain persons are
-3532-
Honorable Preston Smith, page 6 (M-728)
not eligible to office implies that all other persons are eli-
gible. ’ ” (Emphasis added. ) (at p. 1015. )
The Supreme Court of Texas then continued:
“The qualifications of public officers, when defined by the
Constitution, are as clearly beyond change by the Legis-
lature as are the qualifications of electors when fixed by
constitutional provision. It is the declared law, by both
the Court of Criminal Appeals and the Supreme Court of
this state, that it is beyond the power of the Legislature
to add an additional qualification for an elector to those
prescribed by the Constitution. Solon v. State, 54 Tex.
Cr. R. 261, 114 S. W. 349; Koy v. Schneider, 110 Tex.
378, 218 S. W. 479, 221 S. W. 880.” (at p. 1015.)
Th e Court then quoted from an opinion in Steusoff v. State, 80 Tex.
430, 15 S. W. 1100 (1891) as follows:
” ‘Eligibility to office is not declared as a right or principle
by any express terms of the constitution, but it rests as a
just deduction from the express powers and provisions of
the system. The basis of the principle is the absolute liberty
of the electors and the appointing authorities to choose and
appoint any person who is not made ineligible by the consti-
tution. Eligibility to office therefore belongs not exclusively
or specifically to electors enjoying the right of suffrage. It
belongs equally to all persons whomsoever not excluded by
the constitution. ‘.” (q+ p. 1019. )
In Kilday v. State ex rel Candler, 75 S. W. 2d 148 (Tex. Civ. App.
1934, Motion for leave to file mandamus refused by the Supreme Court in
75 S. W. 2d 253), an attempt was made to have the name of James V. Allred
removed from the ballot because of a violation of Article 3173of the Election
Code limiting campaign expenses. The San Antonio Court of Civil Appeals
said:
“The Constitution of Texas having prescribed the re-
quisite qualifications for one to be the Governor of the
state and having fixed the grounds of ineligibility appli-
cable to that office, it is beyond the power of the Legis-
lature to add another ground of disqualification. ”
-3533-
Honorable Preston Smith, page 7 (M-728)
. . . .
“Therefore, the first sentence of article 3173, quoted
above, in so far as it imposes a test of eligibility or ineli-
gibility for one to have his name placed on the official bal-
lot at the general election as the nominee of a party and
a candidate for the office of Governor is unconstitutional.
To prescribe a qualification or disqualification for one to
have his name placed on the ballot as a candidate is to pre-
scribe a qualification or disqualification to hold the office
. . . II
. . . ..
‘1. . : The framers of the Constitution at the time made
detailed provisions as to qualifications and disqualifica-
tions of the Governor, in connection with which only one
reference was made to disqualifications arising from
elections, namely, article 16 5 5, relating to bribery in
elections. Thus it is apparent that the Constitution not
only did not authorize the Legislature to create new quali-
fications for the Governor, but upon~the contrary fore-
closed all future legislation upon that subject. ” (at p.
: 150. )
In overruling a motion to file a petition for the mandamus, the
Supreme Court wrote an opinion, reported in 75 S. W. 2d 253, in which it
expressly concurred in the language of the Court of Civil Appeals:
“The Supreme Court concurs in the conclusion stated in
the opinion of Chief Justice Bickett, in words as follows:
‘The Constitution of Texas having prescribed the requisite
‘qualifications for one to be the Governor of the state and
having fixed the grounds of ineligibility applicable to that
office, it is beyond the power of the Legislature to add
another ground of disqualification. ’
“We deem it best to add only a few words to the clear dis-
cussion of this question in the opinion of the Chief Justice.
On this point, his opinion firmly rests on Dickson v. Strick-
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Honorable Preston Smith, page 8 (M-728)
land, 114 Tex. 176, 265 S. W. 1012. . . The main question
in that case was whether the disability of coverture rendered
Mrs. Ferguson ineligible to be Governor. The question here
is simply whether a nominee had been rendered ineligible
under a statute adding to the tests of eligibility specified in
the Constitution. The court held in Dickson v. Strickland,
supra, that the constitutional tests of eligibility to hold the
Governor’s office could not be altered by statute. Chief
Justice Bickett’s opinion follows that decision, ” (at p. 257. )
In Burroughs v. Lyles, 142 Tex. 704, 181 S. W. 2d 570 (1944), the
Supreme Court declared unconstitutional Article 2929a, which provided that
no person elected or appointed to an executive or administrative public of-
fice for a term of more than two years shall be eligible for nomination or
election to another office the term of which begins before expiration of term
or original office unless he first resigns. The Court said:
‘1. . . It was held by this court in Dickson v. Strickland, 114
Tex. 176, 265 S., W. 1012, that where the Constitution pre-
scribed the qualifications for office it is beyond the legis-
lative power to change or add to the qualifications, unless
the Constitution gives that power. That decision was re-
affirmed in State ex rel Candler et al v. Court of Civil Ap-
peals et al, 123 Tex. 549, 75 S. W. 2d 253. The statute here
involved seeks to impose an additional test of eligibility, other
than what is prescribed by the Constitution, on a candidate
for State office, and for that reason it is void. ” (at p. 574. )
Citing and following the above cases, the Texas Court of Criminal
Appeals held in Ex Parte Le Fors, 347 S. W. 2d 254 (1961):
“Neither the courts nor the Legislature have the authority
; to add to the qualifications prescribed by the Constitution
for the office of District Judge . . . ” (at p. 255. )
In the Kilday case, supra, it was argued that the statutes were a
mere exercise of the police power to regulate elections and prevent and
punish corrupt practices, rather than to add eligibility qualifications for
holding constitutional offices. In rejecting this distinction, the Court held
that a statutory test of eligibility which prevents a person from obtaining
-3535-
Honorable Preston Smith, page 9 (M-728)
a constitutional office by election amounts to an added qualification and is
unconstitutional. In this connection the Court of Civil Appeals said:
II . . . To prescribe a qualification or disqualification
for one to have his name placed on the ballot as a candi-
date is to prescribe a qualification ordisqualification to
hold the office. . . . If he is not disqualified to hold the
office, he is not disqualified to have his name placed on
the ballot. This statute does undertake to add a disquali-
fication not provided nor authorized by the Constitution. ”
75 S. W. Zd 150.
The Supreme Court, in refusing a motion for mandamus in the
above case (75 S. W. 2d 253, 257) arrived at the same conclusion, adding
‘I. ‘~. . The question here is simply whether a nominee
had been rendered ineligible under a statute adding to
the tests of eligibility specified in the Constitution . . .”
By analogy, the question here is simply whether an otherwise qualified
appointee to a constitutional office is rendered ineligible under a statute
which would prevent the~senate from confirming the appointee on account
of his relation to a House member. Paraphrasing the Court’s holding
and applying’,it to such an appointee, we cannot escape the following con-
clusion:
To prescribe a qualification or disqualification for one
to be appointed to an office is to prescribe a qualification
or disqualification to hold the office . . . If he is not
disqualified to hold the office, he is not disqualified to be
appointed. When applied to constitutional offices, this
statute does undertake to add a disqualification not pro-
vided nor authorized by the Constitution.
The Anti-Nepotism Act seeks to restrict the appointing and con-
firming authorities by adding eligibility disqualifications as shown by the
words of the statute itself. Article 433, Vernon’s Penal Code, specifically
refers to “The inhibitions set forth in this law . . . ” and Article 435 spe-
cifically designates the proscribed appointee as ‘I. . . such ineligible office
or person, . . .”
-3536-
Honorable Preston Smith, page 10 (M-728)
We have, therefore, concluded that this Act is valid as to the many
statutory offices to which it applies, yet it can have no valid application to
constitutional offices for which the Constitution itself enumerates the quali-
fications and disqualifications of persons who may be elected or appointed
thereto. Since under settled cannons of statutory construction, we must
presume that the Legislature had the intent to enact a constitutional anti-
nepotism statute in harmony with the Constitution, we must hold that the
Legislature did not intend that such statute apply to those offices which the
Constitution created. and for which it prescribed the qualifications without
granting to the Legislature any authority to add to such qualifications or eli-
gibility requirements.
In view of the foregoing, we answer your question in the affirmative
having concluded that if Price Daniel meets all the constitutional eligibility
requirements for appointment as a Justice of the Supreme Court, he is not
ineligible because his son is a member of the Texas Legislature. Article
432, Vernon’s Penal Code, does not apply to the office of a Justice of the
Supreme Court. ’
SUMMARY
If Price Daniel meets all of the eligibility quali-
fications enumerated in the Texas Constitution for ap-
pointment to the office of a Justice of the Supreme Court,
he is not ineligible for such appointment because his son
is a member of the Texas House of Representatives. Ar-
ticle 432, Texas Penal Code, the Anti-Nepotism Act, is
not applicable, since the Legislature had been given no
authority to add to or alter the eligibility qualifications
prescribed by the Constitution which created such office.
Youryvkry truly,
Attorney C&era1 of Texas
I,’
Prepared by Kerns Taylor
-3537-
Honorable Preston Smith, page 11 (~-728)
APPROVED:
OPINION COMMITTEE
W. E. Allen, Acting Chairman
John Grace
Houghton Brownlee
J. C. Davis
Ralph Rash
Meade F. Griffin
Staff Legal Assistant
Alfred Walker
Executive Assistant
Nola White
First Assistant
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