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Drcember 3, 1957
Hon. ~TrlceDaniel Opinion No, W- 3@5
Gwemor of Texas
C&to1 Station Re: Whether by virtue of the provl-
Austin, Texas sions of Section 18 Article,111,
of the Texas Constitution,a
member of the Legklatura Is eii-
gible for appointment by the
Owernor to an office In the Exe-
cutive ‘Departmentduring tinetbrm
Dear Governor Daniel: of office f,orwhich he Is elected.
You have requested our o inion as to whether by vir-
tue of the provisions 0::Section 1t; Article III of the Texas
Constltltution,a member of the Legkleture is eligible for
appointment by the Gwornor to an office in the Zxecut:va De-
partment during the term of office for which he is ekcted,
~iiichappointment requires confirmationof the knate, ,i:ndwhen
tineLegislature of whhichhe 2,sa member ha:-not creatcclthe
;,ositlonnor incrciiscii
nor changed the emoluments of theioffice.
Article III, tijsct:.on
18, of the State Constitution is
as follows:
“No Serator or P.:?;:rasuntative
shall, during
tk term for :Aich he riay be elected, be eligible
tc,any civil office of profit under this State
which shall have been created, or the omolum& of
which msy have been increased during such term; no
member of either Hcuse shall during the term for
:&lch he is clectcJ, 110cllg~ble tc any office 3r
pl:lCJ, %hrdappointment tc Rich may be ntiido, ,in
yL,“t;” +n part, by f!lthcrbranch of tl:ci.c&isla-
or 4
0:’ ‘-iither
; &ridno ti:Iumbcr Eouse shall votr;.:‘c:r
ary otha .memborYor :,nyc.fficewhatever, \fi,ich 1.:
,‘J
be filled by a vote tij’ the Legislature,e:%cpt In
such cclsesIASare in this Constitutionizovldad.
Hor shall any member of the Legislaturebe inter-
ested, either directly or Indirectly, in any con-
tract with the State,,or any county thereof, nu%or-
ized by any 1~ pas-ec; reasonable meaning .to the words ‘in
part.I It is, therefore, important to note that the
framers of the Constitution contemplated that an
‘appointment’might be divisible into parts, and that
a part of the ‘appointment’might be made by “either
branch of the.Legislature.I .
“Necessarily,it seems to us, it was contem-
plated by the framers of the 1876 Constitution that
an ‘appointment’might consist of,several steps, the
performance of each of which was necessary,to vest In
the person the right to take and hold the office or
place, and that the performance of one of these steps
in the ‘appointment’might be vest,edin one branch of
the Le islature. It is significant to note that Ar-
ticle $ Section 12, of the Constitution,Itself vests
in the &enate the performance of one of the steps
necessary to entitle a person to &&Q a’ndm a State
or district office; that is, such ,provisionof the
Constitutionrequires the Senate to confirm or reject
persons named by the Governor to fill vacancies In
State or district offices, as a condition precedent to
Hon. Price Daniel, page 4 (‘N-305)
the right of such persons to take and hold, until
the next general election, such offices.
Vhus it is evident that the framers of the *
Constitution had in mind, by the very language used
by themselves, in such Constitution,one of the
methods by which a branch of the Legislaturemight
perform one of the steps necessary to entitle a
person to take and,hold an office‘or place. On the
other hand, it is not easy to comprehend how a
branch of the Legislature might exercise part of the
power to ‘nominateI a person to fill an office or
place. It would seem that In order to give full
effect to the Constitutionalprovision so that the
interpretationthereof might accord with the inten-.
tion of its framers and the fullest protection
afforded against the evils sough,ttherein to be safe-
guarded against, the term ‘appointment’should be
construed as having the broader meaning attributed
to it above.
I,
. . .
fp’Je
are of the opinion that; where confirma-
tion by either branch of the Legislature is required
to be had, under Article 4, Section 12, of our Con-
stiV&ion, a member of the Legislature is ineligible
to be named to fill such office or place.
“The ineiigibil.ltyof the Legislator to such
office or place extends throughout the entire period
of time assigned by the people to the office of mem-
ber of the Legislature, to which he was eiected.
Zuch ineligibilitymay not be removed by resignation
from~,theoffice, for the Constitutiondoes not provide
that it shall continue only during such a period of
time OS he Is a mem’berof the Legislature, or during
the pried of time that he actually served as such
but expressly provides that ,theinel,igi’billty
shall
endure ‘dur-ingthe term for which he is elected.‘IV
Among the authorities cited In support of this Yuling
are Brown VT&&&, 4j Tr-r.b78 (1895);Denison v. Stat%
S.W.2d X17, 102I (Clv.App. 1933 error ref., 61 S.W.2d ;Q$);
, 24 Tex. 337 (1.8$9),and Ex uarte Hennan 13
The Supreme Court of Texas has recent& re-
affirmed the holding in on v. State m, in Wa.l.ker
e#
j&&g, 145 Tex. 121,.196%%2d 324 (194b,).
:
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Hon. Rice Daniel.,page 5 (~~-305)
It is our opinion that no member of the Legislature
is eligible for appointment by you to an office In the Executive
Department which requires confirmationby the Senate during the
term of office for which the legislator has been elected, even
though the Legislature of which he is a member has not created
the office or changed Its emoluments.
No member of the Legislature is eligible for
appointment by the Governor to anoffice in the
Executive Department which requires confirmation
by the Senate during the term of office for which
the legislator has been elected, even though'the
Legislature of whlch.he is a member has not cre-
ated the office or changed Its emoluments,
Yours very truly,
WILL WILSON
Attorney General of Texas
CKR:wb Assistant
APPROVED:
OPINION COMMITTEE
Geo. P. Blackburn, Chairman
John H. Minton, Jr.
Wayland C. Rivers, Jr.
J. C. Davis, Jr.
Joe Wheeler
Mark McLaughlin
W. V. Geppert