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
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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%an