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<es herein expressly permitted.”
(emDhasls added): so It mas be stated then that Article                fl.
$e&&       l,~dlvi&s     and distributes     the powers of the govern-
ment into three distinct          departments and prohibits      one
department from exercising          power that by Its nature belongs
to another deDartment, except In Instances where the Con-


             Referring to Article   II,     Section   1, one writer
has aptly    and, we think, correctly       stated:
              l’Th~s, It la not exactly correct    to state
        the principle   of separation of powers as absolutely
        prohlbltlng   performance by one department of aots
        which by their essential     nature belong to another.
        Rather, the correct    statement is that a department
        may constitutionally    exercise   any power whatever
        its essential   nature, which has, by ths oonstitu-
        tion, been delegated to It; but that AC:-may not
Hon. Penn J. Jaokson,     Page 3 (W-324)



      exercise powers not so oon~titutlonilly     granted
      which from their essential   nature do not fall wfth-
      In Its division  of govertanental functions.”   Vernon’s
      Ann. Tex. Const. Art. 2, sec. 1, Interpretive
      Commentary, Vol. 1, p. 525.

          Thus, considering    the above Article and propo6itIon6,
and in order to answer the first     queattion, It Is neee66q     to
detenrlne the nature of the governmentu        power oonferred upon
the Senate and to detemalne If the~Con6tItuflan       h66 graatdd  6uch
power to the Senate.   Article   1.09, Se&Ion (a), of the Insur-
ance Code provides:
             “The Boati, shall appoint a Coml66lotrer OS
      Insurance, by and with the advice and oonsent of
      the Senate of Texas, who shall be its ohlef executive
      and admlnlstratlve    officer,   who shall be oharged tith
      the primary responslblllty      of admlnlatering,    enforaing,
      and oarrylng out the provisions      of the In6ur6noe     Code
      under the supervision      of the Board.    He shall hold his
      position   at the pleasure of the Board and may be dis-
      oharged any time. ”

  . . . ._   The
             . . Texas Supreme
                         .    .   Court. has
                                         .    stated
                                              1 _     that . under
                                                             .       out
6)ciwtxon acne power Go maxe appoincJnents is exeouti$e 6na not
leg1slatlve.      State v. Man      118 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
