                                 ATTORNEY GENERAL OF TEXAS
                                              GREG         ABBOTT




                                               December 14, 2007



The Honorable James L. Keffer                               Opinion No. GA-0584
Chair, Committee on Ways and Means
Texas House of Representatives                              Re: Nature of the offices of President Pro
Post Office Box 2910                                        Tempore of the Texas Senate and Speaker of the
Austin, Texas 78768-2910                                    Texas House of Representatives for purposes of
                                                            removal from office (RQ-0589-GA)
The Honorable Byron Cook
Chair, Committee on Civil Practices
Texas House of Representatives
Post Office Box 2910
Austin, Texas 78768-2910

Dear Representative Keffer and Representative Cook:

       You ask four questions! about the nature of the offices of the President Pro Tempore of the
Texas Senate and the Speaker of the Texas House of Representatives:

             Question 1:        Are the Speaker of the Texas House of Representatives and
                                the President Pro Tempore of the Texas Senate "legislative
                                officers" as recently held by the Texas Supreme Court,
                                officers who serve at the pleasure of the membership,
                                according to rules adopted under the authority granted by
                                Article 3, [section ]11 of the Texas Constitution, or are they
                                "state officers" subject to removal only as provided in Article
                                15, Section 7 of the Texas Constitution?

             Question 2:        If you conclude that ... the Speaker of the Texas House of
                                Representatives and the President Pro Tempore of the Texas
                                Senate are subject to removal only by impeachment or other
                                trial and removal proceeding under Article 15, Section 7 of


         ISee Letter and Brief from Honorable James L. Keffer, Chair, Committee on Ways and Means, Texas House
of Representatives, joined by Honorable Byron Cook, Chair, Committee on Civil Practices, Texas House of
Representatives, to Honorable Greg Abbott, Attorney General of Texas (June 18, 2007) (available at
http://www.oag.state.tx.us) [hereinafter Request Letter and Request Brief, respectively]. All letters and briefs received
by the Office of the Attorney General and cited herein are on file with the Opinion Committee.
The Honorable James L. Keffer - .Page 2               (GA-0584)
The Honorable Byron Cook


                              the Texas Constitution, what is the effect ofthe impeachment
                              of either of these officers? That is, does impeachment only
                              remove them from the legislative office of Speaker or
                              President Pro Tempore, or does it expel them from
                              membership in the House/Senate in a manner different from,
                              and inconsistent with, Article 3, Section 11 of the Texas
                              Constitution?

             Question 3:      If, after the regular legislative session has commenced, a
                              Speaker chosen by the members of the House is removed
                              from that office by any legal means, does the House then have
                              the power to select a new Speaker, or is it required to continue
                              its operations in the absence ofa Speaker, in apparent conflict
                              with Article 3, Section 9 of the Texas Constitution?

             Question 4:      If the rules adopted by the Texas House of Representatives
                              give the Speaker of the House unlimited discretion to refuse
                              to recognize members for purposes of presenting any motion
                              whatsoever-be it a motion to impeach the Speaker, a motion
                              to vacate the chair, or any other sort of motion-do those
                              rules effectively give the Speaker unlimited ability to prevent
                              his removal (by simply refusing to recognize members for the
                              required motions)?

Request Brief at 1.

I.      Are the President Pro Tempore of the Texas Senate and the Speaker of the Texas
        House of Representatives Officers of the State Such That They May be Removed Only
        Pursuant to Article XV, Section 7 of the Texas Constitution?

        To determine whether the Speaker of the Texas House of Representatives (the "Speaker")
and President Pro Tempore of the Texas Senate (the "President Pro Tempore")2 may be removed
only as provided in article XV, section 7 of the Texas Constitution, we must first analyze whether
they are "officers of this State" under that constitutional provision.

        A.     Are the President Pro Tempore and the Speaker officers of this State under
               article XV, section 7 of the Texas Constitution?

       The President Pro Tempore and the Speaker are not included in the list of "certain" officers
who are expressly subject to impeachment under article XV, section 2 of the Texas Constitution.



         2We capitalize "Speaker" and "President Pro Tempore" throughout this opinion because those terms are
capitalized in the Texas Constitution. See TEX. CONST. art. III, § 9. The only exception should be when those words
appear in a quotation without capitalization.
The Honorable James L. Keffer - Page 3                     (GA-0584)
The Honorable Byron Cook


TEX. CONST. art. XV, § 2 (entitled "Trial of Impeachment of Certain Officers by Senate"); see also
Request Brief at 3. Article XV, section 2 lists "the Governor, Lieutenant Governor, Attorney
General, Commissioner of the General Land Office, Comptroller, and the Judges of the Supreme
Court, Court of Appeals and District Court" as subject to impeachment under that constitutional
provision. TEX. CONST. art. XV, § 2. Because neither the President Pro Tempore nor the Speaker
appears on that list, neither is subject to impeachment under article XV, section 2. See id.; see also
Tex. Att'y Gen. Op. No. JC-0418 (2001) at 5-6 n.1 (stating that a member of the Railroad
Commission is not subject to impeachment under article XV, section 2); Tex. Att'y Gen. Op. No.
0-898 (1939) at 3 (observing that only those officers named in article XV, section 2 are subject to
impeachment under that provision).

       We look then to article XV, section 7, entitled "Removal of Officers When Mode not
Provided in Constitution." TEX. CONST. art. XV, § 7. This provision requires the Legislature to
provide by law "for the trial and removal from office of all officers of this State, the modes for
which have not been provided in this Constitution." Id. (emphasis added).

       Pursuant to section 7, the Legislature enacted Government Code chapter 665 to provide for
the impeachment of individuals not listed in article XV, section 2: 3

                          An individual may be removed from an office or a position by
                   impeachment in the manner provided by the constitution and this
                   chapter if the individual is:

                                   (1) a state officer;

                                    (2) a head of a state department or state institution; or

                                (3) a member, regent, trustee, or commissioner having
                   control or management of a state institution or enterprise.

TEX. GOV'T CODE ANN. § 665.002 (Vernon 2004) (emphasis added). Section 665.002(1) merely
refers to "a state officer"; it does not list specific officers by title, nor does it elaborate on the type
of officer to which it refers.


         3Representative Pitts contends that only officers listed in article XV, section 2 are subject to impeachment, citing
Attorney General Opinion 0-898. See Brief ofHonorable Jim Pitts, Vice Chair, Committee on Government Reform,
Texas House ofRepresentatives, at 4-5 (Aug. 3,2007). This position, however, is not consistent with Knox v. Johnson,
in which the court considered article XV, section 7. See Knox v. Johnson, 141 S.W.2d 698 (Tex. Civ. App.-Austin
1940, writ ref d). Knox concluded that the "language necessarily comprehends, in addition to those otherwise specified
in the Constitution itself, not only all officers of the State then provided for, but in addition those authorized by the
Constitution to be thereafter created by the Legislature." Id at 701; see also Tex. Att'y Gen. Ope 0-898 (1939) at 3.
Attorney General Opinion 0-898 evaluates impeachment generally and does not focus on the scope ofarticle XV, section
7. See generally Tex. Att'y Gen. Ope No. 0-898 (1939). Moreover, neither article XV, section 7 nor Attorney General
Opinion No. 0-898 establish that the phrase "officers of this State" as used in section 7 is limited to the officers
specifically mentioned in section 2. In fact, because the modes of impeachment for the officers listed in section 2 are
described in the constitution itself, the language and substance of section 7 would be unnecessary and superfluous if it
were limited to the officers listed in section 2.
The Honorable James L. Keffer - Page 4                (GA-0584)
The Honorable Byron Cook


                      1.     Summary of arguments presented.

        The Speaker contends that he is an officer of the state for purposes of article XV, section 7
and Government Code chapter 665. 4 He first suggests that "[t]he predominant determining factor
distinguishing those officials who are public officers from those who are not is 'whether any
sovereign function ofthe government is conferred upon the individual to be exercised by him for the
benefit of the public largely independent of the control of others.'" Speaker's Brief at 10 (quoting
Aldine Indep. Sch. Dist. v. Standley, 280 S.W.2d 578, 583 (Tex. 1955)). Relying on this standard,
he particularly points to "numerous ... functions" bestowed upon the Speaker by the Texas
Constitution and statutes, "any of which clearly constitutes part of the sovereign functions of the
state." Id at 11. Further, the Speaker urges, he holds a two-year term of office under article III,
section 9(b) ofthe Texas Constitution and takes the "constitutional oath ofoffice" for Speaker, both
ofwhich he says indicate he is a state officer. Id at 13-20. Finally, the Speaker relies on In re Texas
Senate, a 2000 Supreme Court of Texas opinion, for the proposition that the Speaker can be both a
legislative officer and a state officer. Id. at 20; see In re Tex. Senate, 36 S.W.3d 119 (Tex. 2000).

        Your brief, as well as others submitted to this office, contend that the Speaker is not an
officer of the state for purposes of article XV, section 7 and chapter 665 of the Government Code.
These briefs suggest that In re Texas Senate and Diffie v. Cowan, a 1932 Texarkana Court of Civil
Appeals opinion, stand for the proposition that the President Pro Tempore and Speaker are legislative
officers, not state officers. See Request Briefat 2-3 (text accompanying notes 5, 12, and 13).5 One
brief contends that legislators are not subject to impeachment generally.6 Another suggests that the
President Pro Tempore and Speaker are legislative officers, not state officers, because "neither
position is directly elected by the electorate, nor appointed by the Governor.,,7 And another suggests
that none ofthe Speaker's duties are '" sovereign duties' that would make him a state officer under"
article XV, section 7. 8 Finally, another contends that the Speaker does not serve a term fixed by
law. 9

          We will address these and other arguments as we analyze the relevant issues.




        4See Brief of Honorable Tom Craddick, Speaker of the Texas House of Representatives, at 9-12 (rec'd July
20, 2007) [hereinafter Speaker's Briet].   .

        5See also Brief from Honorable Charlie Geren et aI., Vice Chair, Committee on Licensing and Administrative

Procedures, Texas House of Representatives, at 2-3 (Aug. 3, 2007) [hereinafter Geren et al. BriefJ.

          6   See Geren et ai. Brief at 3.

          7Brief from Mario X. Perez, State Chair, Common Cause of Texas, at 1 (July 31, 2007) [hereinafter Perez
Briet].

          8Brief from Rayford Price, Rayford Price & Assocs., at 2 (Aug. 11, 2007) [hereinafter Price Supplemental
Briet].

          9See Geren et al. Brief at 16.
The Honorable James L. Keffer - Page 5                    (GA-0584)
The Honorable Byron Cook


                  2.     Summary of law.

        Neither article XV nor chapter 665 defines "officers ofthis state" or "state officer(s)."lo See
TEX. CONST. art. XV, § 7; TEX. GOV'T CODE ANN. §§ 665.001-.028 (Vernon 2004) (chapter 665,
subchapters A-B). 11 The constitution is to be construed according to the plain meaning ofits words.
See City ofSan Antonio v. City ofBoerne, 111 S.W.3d 22, 25 (Tex. 2003) (stating that courts look
to the plain and common meaning of statute's words); see also Booth v. Strippleman, 61 Tex. 378,
378-79 (Tex. 1884); Tex. Att'y Gen. Ope No. GA-0293 (2005) at 2 (stating that the construction of
constitutional provisions is generally governed by the same rules governing the interpretation of
statutes and codes). The meaning of the phrase "officers of this state" is ambiguous, however,
because on its face the phrase does not provide a plain-meaning definition, and it is not defined in
the constitution, relevant state statutes, or court decisions. And, as indicated by the many briefs we
received in this matter, the phrase appears to be subject to more than one reasonable interpretation.
Cf Red v. Bounds, 63 S.W.2d 544, 546 (Tex. 1933) (stating that if a statute is susceptible to more
than one meaning, it should be given the construction that will best effect its purpose rather than a
construction that will permit its terms to be easily evaded). Moreover, analyzing a similar phrase,
the Texas Supreme Court opined that "[t]he words 'officers of the state government' are ... very
indefinite." Betts v. Johnson, 73 S.W. 4,4 (Tex. 1903). On its face, the phrase "officers of this
state" could refer to a statewide-elected official, an appointee to a state commission or agency, an
officer of a local government body in this state, or other kinds of officers. Accordingly, we rely on
established standards to construe the relevant constitutional and statutory phrases, including
legislative history. See TEX. GOV'T CODE ANN. § 311.023 (Vernon 2005) (stating that courts may
look to legislative history to determine the meaning of a statutory or constitutional provision).

        The history of article XV, section 7 provides no insight into the meaning of the phrase
"all officers of the state." See TEX. CONST. of 1876 art. XV, § 7; JOURNAL OF THE TEXAS
CONSTITUTIONAL CONVENTION OF 1875,at312-13, 770-71 (Oct. 8 & Nov. 22,1875); DEBATES IN
THE TEXAS CONSTITUTIONAL CONVENTION OF 1875, at 190-201,445-51 (Seth Shepard McKay, Ph.
D., Univ. of Texas Press 1930 (Oct. 8 & Nov. 22,1875); cf TEX. CONST. of1845 art. IX, § 6 (using
language similar to that adopted in article XV, section 7 of the 1876 constitution); JOURNAL OF THE


        lOWe use the terms "officer(s) of this State," "officer(s) of the State," and "state officer(s)" interchangeably
except where the context clearly refers to one or the other.

          llA state officer appears to be a kind ofpublic officer. There are other kinds ofpublic officers, such as county
officers and city officers. See, e.g., Travis County v. Jourdan, 42 S.W. 543, 543 (Tex. 1897) (distinguishing county
officers from state officers); Goodwin v. Harrison, 66 S.W. 308, 308 (Tex. Civ. App.-Fort Worth 1902, no writ)
(referring to a "public officer of the county"); see also, e.g., Willis v. Potts, 377 S.W.2d 622, 629 (Tex. 1964)
(concluding that a city councilman is a municipal officer unless he is enforcing the general criminal laws ofthe state, at
which time he acts as a state officer); City ofWichita Falls v. Lewis, 68 S.W.2d 388, 389 (Tex. Civ. App.-Fort Worth
1933, writ dism'd) (referring to a "public officer ofthe city"); cf Aldine Indep. Sch. Dist. v. Standley, 280 S.W.2d 578,
585 (Tex. 1955) (referring to a "public officer of this state"). Two cases, Knox v. Johnson and Dorenfield v. State ex
rei. Allred, do not distinguish a "public officer" from a "state officer" and use authorities discussing "public officers"
in their analyses of who is and who is not a "state officer." See Knox, 141 S.W.2d at 700; Dorenfieldv. State ex rei.
Allred, 73 S.W.2d 83, 86-87 (Tex. 1934). Presumably, that is because a state officer is a public officer. As noted,
however, not all public officers are state officers; some public officers are city or county officers.
    The Honorable James L. Keffer - Page 6            (GA-0584)
    The Honorable Byron Cook


    TEXAS CONSTITUTIONAL CONVENTION OF 1845,at 108,114-15,186,193 (July 28, & Aug. 8,1845);
    DEBATES IN THE TEXAS CONSTITUTIONAL CONVENTION OF 1845, at 264-81, 465-82 (July 28 & Aug.
    8, 1845).

            Reviewing the statutory impeachment provision's legislative history, on the other hand,
    provides some insight into the breadth of the term "state officer" as used therein. Found today in
    Government Code chapter 665, this provision is traceable to the 1876 Constitution. Compare Act
    of Aug. 21, 1876, 15th Leg., R.S., ch. 133, § 26, 1876 Tex. Gen. Laws, reprinted in 8 HP.N
    Gammel, The Laws of Texas 1822-1897, at 219,226 (listing as officers who were removable by
    impeachment the commissioner of agriculture and the commissioner of insurance and banking, but
    not elaborating on the meaning of"state officer"), with Act of Sept. 28, 1917, 35th Leg., 3dC.S., ch.
    34, § 1, 1917 Tex. Gen. Laws 102, 103 (House Bill 44) (amending the impeachment statute to
    provide for removal of the commissioners of agriculture and insurance and banking as well as "all
    other state officers and heads of state departments or institutions of any kind, and all members,
    regents, trustees, commissioners having the control or management of any State institution or
    enterprise") and Letter from Honorable Bruce Bryant to Honorable F.O. Fuller, Speaker, House of
    Representatives (Sept. 21, 1917) (stating that the purpose of House Bill 44 was to define "what
    officers, agents, and employees of the State Government may be impeached by the House of
    Representatives ... [a]s there are no statutory provisions at this time ... defining specifically who
    may be impeached ....") (House Bill 44 on file with the Library and Archives Commission).
    Revisions to the Act in 1981, before codification in 1993, provided for the impeachment of:

                            The Governor, Lieutenant Governor, Secretary of State,
                   Attorney General, State Treasurer, Commissioner ofthe General Land
                   Office, Comptroller, Commissioner of Insurance, Banking
                   Commissioner, Justices ofthe Supreme Court, Judges ofthe Court of
                   Criminal Appeals, Justices of the Courts of Appeals, Judges of the
                   district courts, Judges of the criminal district courts, and all other
                   State officers and heads of State departments or institutions of any
                   kind, and all members, regents, trustees, commissioners having
                   control or management of any State institution or enterprise, shall be
                   removed from office or position by impeachment ....

    See Act of June 1, 1981, 67th Leg., R.S., ch. 291, § 68, 1981 Tex. Gen. Laws 761, 792 (emphasis
    added). In addition to specifically listing certain state officers such as the Governor and the
    Lieutenant Governor as subject to impeachment, the 1981 provision expressly added the broad
    category of "all other state officers." Id. (emphasis added). By using the phrase "all other state
    officers" in contrast to the state officers expressly listed, the Legislature made it clear that officers
    other than those expressly listed in article XV, section 2 and this statute, are subject to impeachment.
    The broad phrase "state officers" was then carried over into the current statute following its non-
o   substantive recodification in 1993. See Act of May 4, 1993, 73d Leg., R.S., ch. 268, § 1, sec.
    665.002, 1993 Tex. Gen. Laws 583, 726-27 (codified at TEX. GOV'T CODE ANN. § 665.002(1))
    (stating that chapter 665's provisions apply to any "state officer"). Thus, while the history of this
    statute does not clarify whether the Speaker and President Pro .Tempore are "state officers" under
The Honorable James L. Keffer - Page 7                   (GA-0584)
The Honorable Byron Cook


chapter 665, it clearly shows that the term is broader than the list of state officers subject to
impeachment under article XV, section 2.

        When it enacted chapter 665, the Legislature could have expressly included or excluded the
Speaker as a "state officer" subject to impeachment. Alternatively, the Legislature could have
clearly defined what constitutes a "state officer." Because the Legislature did neither, the definition
of the term is left to the courts.

       To date, the courts have not clearly defined what is meant by "state officer" for the purpose
of impeachment. Nor has' any court considered the possible impeachment of officials with the
Speaker and the President Pro Tempore's unique roles and duties. Because the existing legal
guidance on this issue is limited, our advice is similarly constrained to the limited legal framework
available to US. 12

        Indeed, the Texas Supreme Court has acknowledged that it is difficult to determine whether
a person is an officer of the state. See Betts v. Johnson, 73 S.W. 4, 4 (Tex. 1903). This task is
particularly difficult given the court's determination that a person may be such an officer for some
purposes but not for others. See ide

        That said, the Texas Supreme Court has at least discussed concepts to be considered when
evaluating whether a person is a state officer for purposes of removal from office under article XV,
section 7 or chapter 665. See Dorenfieldv. State ex reI. Allred, 73 S.W.2d 83,85 (Tex. 1934); see
also Knox v. Johnson, 141 S.W.2d 698, 700-01 (Tex. Civ. App.-Austin 1940, writ refd). By
adding the notation "writ refused," the Texas Supreme Court "adopted the court of civil appeals'
judgment and reasoning as its own." Hubenak v. San Jacinto Gas Transmission Co., 141 S.W.3d
172, 193 (Tex. 2004) (Jefferson, J., concurring) (emphasis added) (citing Tex. Utils. Elec. Co. v.
Timmons, 947 S.W.2d 191, 199 (Tex. 1977)). In effect, the court of appeals opinion became the
opinion of the Supreme Court of Texas.

         In Dorenfield, the Texas Supreme Court examined whether certain Texas ReliefCommission
members were "officers ofthis State" for purposes ofremoval from office under article XV, section
7 of the constitution. Dorenfield, 73 S.W.2d at 84-86. This Depression-era agency was overseen
by a nine-member commission, of which three members were appointed by the Speaker. Id. at 85.
The court recited such facts as: the appointments were for a "term fixed by law," the commission
members took a constitutional oath ofoffice, and members appointed by the Speaker and Lieutenant
Governor could be removed only for cause. Id. Without further expla1?-ation, the court held that the
Speaker's appointees were state officers who, absent death or resignation, served until "removed
after trial under the provisions of some valid ~aw." Id. at 86 (citing TEX. CONST. art. XV, § 7).

        Six years later, in Knox v. Johnson, the Austin Court of Appeals held that a superintendent
of a state hospital was an "officer of the State within the purview of [section] 7 of [article] XV."


          12In the opinion process, we cannot "disregard the plain language ofthe statute" nor can we "ignore or overrule
judicial decisions." Tex. Att'y Gen. Ope No. GA-0563 (2007) at 5-6.
The Honorable James L. Keffer - Page 8            (GA-0584)
The Honorable Byron Cook


Knox, 141 S.W.2d at 701. The Knox court began by discussing whether a public position is a public
office:

                a position is a public office when it is created by law, with duties cast
                on the incumbent which involve an exercise of some portion of the
                sovereign power and in the performance of which the public is
                concerned, and which also are continuing in their nature and not
                occasional or intermittent.

Id. at 700 (citations omitted). The court then described facts about the superintendent's position,
including: his appointment for a statutorily fixed, two-year term; taking a constitutional oath;
executing a bond "as ... required of other state officers"; providing semi-annual reports to the
Governor regarding "all moneys received and disbursed by him"; and serving as "custodian of and
responsible for state property and state funds." Id. The court summarized the superintendent's
office as follows:

                Thus, we have his position designated as an office [created by law].
                He is required to take the constitutional oath ofoffice, and execute an
                official bond as is required of other state officers. He is made a
                custodian of and responsible for state property and state funds. His
                "term ofoffice" and the salary therefor are fixed by law. Definite and
                specific governmental duties and powers are imposed upon him in
                which the State as a whole is interested. Manifestly, he discharges
                strictly a governmental function affecting the public as a whole, and
                clearly is an officer of the State.

Id.

        Though Dorenjield and Knox provide guidance for our analysis, neither explains to what
degree any particular part ofan officeholder's duties, responsibilities, or facts weighed in the courts'
conclusions. Nor do they explain whether the omission ofany particular duty, responsibility, or fact
would be significant, or whether anyone such criterion, alone, could be sufficient to establish state-
officer status in a particular case. The courts provide no insight into the relative significance of any
particular fact, such as posting a bond versus performing a sovereign function, or whether additional
duties or responsibilities are relevant in the state-officer analysis. These opinions thus provide little
guidance in how to apply their particular facts, or additional or different facts, in a different context.

         Providing additional guidance, though not in the context ofremoval from office, the EI Paso
Court of Civil Appeals stated in 1940 that the Speaker is both an officer of the state and an officer
ofthe Legislature. See Miller v. El Paso County, 146 S.W.2d 1027, 1034 (Tex. Civ. App.-EI Paso
1940), rev'd on other grounds, 150 S.W.2d 1000 (Tex. 1941). Miller considered whether the
Legislature violated the constitutional separation-of-powers principle by delegating to a local
chamber of commerce the authority to appoint members to a Board of County Development. See
ide at 1034. In analyzing the question, the Miller court found that Dorenjield, though not conclusive,
had "considerable bearing." Miller, 146 S.W.2d at 1034. The Miller court stated:
The Honorable James L. Keffer - Page 9                     (GA-0584)
The Honorable Byron Cook


                  It is true that the Speaker of the House is an officer of the State; in
                  respect to the functioning ofthe legislative branch ofthe government,
                  an executive officer. However, he is in all respects an officer of the
                  legislative branch of the government, and his power and function is
                  as such.

Id. Even though the court described the Speaker as an "officer of the State," such description has
no significance here because the court was not evaluating article XV, section 7, chapter 665, or the
application of either provision to the issue· of whether the Speaker or President Pro Tempore are
subject to impeachment. As a result, the comment is out of context for our purposes.

        In 2000, the Texas Supreme Court considered whether legislative officers and state officers
are mutually exclusive categories, albeit in a different context. The court concluded that an officer
may be both. In re Tex. Senate, 36 S.W.3d 119, 120 (Tex. 2000). Initially, the court noted, the
Lieutenant Governor is listed in article IV of the Texas Constitution as a member of the Executive
Department. See In re Tex. Senate, 36 S.W.3d at 120; TEX. CONST. art. IV, § 16. Thus, the
Lieutenant Governor functions in part as a state official in the Executive Department. In re Tex.
Senate, 36 S.W.3d at 120. But the court further pointed out that the Lieutenant Governor is named
by the constitution as "President ofthe Senate," making him an officer ofthe Senate. Id at 120-21;
TEX. CONST. art. IV, § 16(b). The court noted that "[a]lthough section 16 also gives the Lieutenant
Governor powers and authority of Governor in specified circumstances, these do not detract from
the express reference to the Lieutenant Governor as a Senate officer." In re Tex. Senate, 36 S.W.3d
at 120.

        We also note that the Texarkana Court of Appeals has opined-in dicta and in a case not
reviewed by the Supreme Court-that the Speaker is not a state officer and that"the members-ofthe
state Legislatures are not 'officers ofthe state,' subject to impeachment, and this will hold true even
though the State Constitution may fail to expressly give the legislative body control over its own
members." Diffie v. Cowan, 56 S.W.2d 1097, 1101 (Tex. Civ. App.-Texarkana 1932, no writ)
(Blalock, C.J., dictum) (citing In re Speakership, 25 P. 707, 709 (Colo. 1891)).13 However, the state-
officer question was not at issue in that case. Thus, the court's comment about officers of the state
was mere dicta, defined as "observation[s] or remark[s] made concerning some rule, principle, or
application of law suggested in a particular case, which observation[s] or remark[s] [are] not
necessary to the determination ofthe case." Four Bros. Boat Works, Inc. v. Tesoro Petroleum Cos.,
217 S.W.3d 653, 662 (Tex. App.-Houston [14th Dist.] 2006, pet. denied). "Under the principle
of stare decisis, dictum is not binding as a precedent." In re Certain Underwriters at Lloyd's, 18
S.W.3d 867, 870 (Tex. App.-Beaumont 2000, no pet.).

        In sum, the constitutional and statutory provisions at issue do not expressly define "officer
of this State" for purposes of impeachment under article XV, section 7 of the Texas Constitution,


          13 Although the Geren et al. Brief relies on this dicta for the proposition that the Speaker is not a state officer

subject to impeachment, that brief does not similarly rely on that dicta for the proposition that "the State Constitution
may fail to give the legislative body control over its own members." Diffie v. Cowan, 56 S.W.2d at 1101; Geren et al.
Brief at 2-3. Clearly, there are reasons to question the analytical validity of this dicta.
The Honorable James L. Keffer - Page 10          (GA-0584)
The Honorable Byron Cook


or under chapter 665 of the Government Code. See TEX. CaNST. art. XV, § 7; TEX. GaV'T CODE
ANN. § 665.002(1) (Vernon 2004). Moreover, no Texas case specifically answers whether the
Speaker and the President Pro Tempore are officers of the state for purposes of impeachment. The
cases addressing whether a particular officer is a state officer for removal purposes under article XV,
section 7 do not provide analysis regarding whether the facts considered in those cases are exclusive
or how to apply such facts or concepts in other situations such as this question.

               3.    Application of law.

        In searching for guidance, we find that Dorenfield and Knox provide the best available
framework for analyzing this part ofyour first question because the former is Texas Supreme Court
authority addressing whether an officer is an officer ofthe state for purposes of impeachment under
article XV, section 7, and the latter addresses the same question and is the precedential equivalent
ofa Texas Supreme Court opinion. Dorenfield, 73 S.W.2d at 83; Knox, 141 S.W.2d at 700; see also
Hubenak, 141 S.W.3d at 193 (citations omitted) (Jefferson, J., concurring) (clarifying that when the
Texas Supreme Court disposes of a case with the notation "writ ref d," the court adopts as its own
the reasoning and judgment of the court of appeals). Thus, Dorenfield and Knox have equal
precedential weight. Dorenfield provides a helpful but general discussion of the characteristics of
a state officer for purposes of article XV, section 7. Knox is more expansive than Dorenfield,
providing more details for analyzing whether a state official is an officer of this state for that
purpose. Therefore, we consider, as did Knox, whether the office of the Speaker was "created by
law," whether the official took a "constitutional oath ofoffice," and whether he "executed an official
bond." Knox, 141 S.W.3d at 700. Additionally, we look at whether the official is "responsible for
state property and state funds" and whether his '''term of office' and salary ... are fixed by law."
Id. We also determine whether "[d]efinite and specific governmental duties and powers are imposed
upon [the official] in which the State as a whole is interested" and the officer "[m]anifestly ...
discharges strictly a governmental function affecting the public as a whole." Id.

                      a.   Are the offices of the President Pro Tempore and the Speaker
                           created by law?

        We first consider whether the President Pro Tempore's and the Speaker's Offices are created
by law. In Dorenfield, the members ofthe Texas Relief Commission were to be appointed pursuant
to statutory authority. Dorenfield, 73 S.W.2d at 84,85. In Knox, the court explained that the state
hospital superintendent's position was a "public office when it [was] created by law." Knox, 141
S.W.2d at 700. Though that court was discussing authorities distinguishing public officers from
public employees, the court concluded based on those authorities, the constitution, and the statutes,
the superintendent was "inescapabl[y] ... an officer ofthe State." Id. In both cases, but particularly
in Knox, the courts considered whether an office was created by law as part of its determination of
whether the officeholder was an officer of the State for purposes of article XV, section 7. See
Dorenfield, 73 S.W.2d at 84, 85; Knox, 141 S.W.2d at700.

         There can be no doubt that both the President Pro Tempore and the Speaker fulfill this
criteria for purposes of our analysis. The President Pro Tempore's office is elected and the duties
The Honorable James L. Keffer - Page 11          (GA-0584)
The Honorable Byron Cook


of the office prescribed in article III, subsection 9(a), and the Speaker is elected as described in
subsection 9(b) ofthat same provision. TEX. CONST. art. III, § 9(a)-(b). Both offices are established
by the Texas Constitution. Although both the President Pro Tempore and the Speaker satisfy the
criterion of holding a position created by law, it is doubtful that this element, alone, would suffice
to establish state officer status for purposes of impeachment.

                     b.     Do the President Pro Tempore and the Speaker exercise sovereign or
                          . governmental functions?

        We next analyze whether the President Pro Tempore and Speaker exercise sovereign or
governmental functions for purposes of article XV, section 7 and chapter 665 of the Government
Code. Although Dorenfield and Knox each credit this consideration as relevant to the state-officer
analysis, neither case provides a thorough analysis of what constitutes a "sovereign function." At
most, these cases-particularly Knox-provide a benchmark for the level ofsovereign functions that
might indicate that a person is a state officer. Our assessment will thus fqcus on whether the duties
exercised by the President Pro Tempore and the Speaker rise to the level ofthe sovereign functions
described in Knox. See Knox, 141 S.W.2d at 700.

       The President Pro Tempore's constitutional and statutory authority is primarily, ifnot solely,
provisional. Under article III, section 9(a) of the constitution, the President Pro Tempore performs
the Lieutenant Governor's duties when the Lieutenant Governor is absent or when the Lieutenant
Governor's office is vacant. See TEX. CONST. art. III, § 9(a). The President Pro Tempore would also
succeed to the office of Governor if the Governor and Lieutenant Governor were unavailable. See
TEX. CONST. art. III, § 9(a); art. IV, § 17(a); TEX. GOV'TCODEANN. § 401.023(a) (Vernon 2005);
see also TEX. GOV'T CODE ANN. § 303.001(1) (Vernon 2005) (defining "governor for a day
ceremony"). Similarly, the Speaker also exercises a provisional role as a possible successor to the
Governor should the Governor, Lieutenant Governor, and President Pro Tempore be unavailable.
See TEX. GOV'T CODE ANN. § 401.023(a)(I) (Vernon 2005).

        These provisional duties of the President Pro Tempore and the Speaker do not appear to
"involve an exercise of some portion of sovereign power . . . which also are continuing in their
nature and not occasional or intermittent." Knox, 141 S.W.2d at 700. In fact, by virtue of being
provisional, such duties appear to be inherently occasional or intermittent. Because these provisional
tasks largely represent the President Pro Tempore's role, a court following Knox would likely
conclude-at least as to the sovereign-function analysis-that the President Pro Tempore is not a
state officer for impeachment purposes under article XV, section 7 and chapter 665 of the
Government Code.

       If the Speaker's constitutional and statutory authority were likewise limited only to
provisional duties, a court applying Knox would likely reach the same conclusion and find that the
sovereign-function analysis also weighs against the Speaker being a state officer for impeachment
purposes. But the Speaker's primary duties and functions are not provisional, and his duties are
statewide in scope.
The Honorable James L. Keffer - Page 12           (GA-0584)
The Honorable Byron· Cook


        For example, separate and apart from the Speaker's duties as a legislator elected to represent
the voters ofhis district, the Speaker-as Speaker-serves as a member of certain statewide boards
and commissions. The Speaker, along with state officers including the Lieutenant Governor, the
Attorney General, the Comptroller of Public Accounts, and the Commissioner of the General Land
Office, is required to serve on the Legislative Redistricting Board. TEX. CONST. art. III, § 28. The
Speaker also serves with the Lieutenant Governor as joint chair of the Legislative Budget Board.
TEX. GOV'T CODE ANN. § 322.001 (b) (Vernon 2005). And the Speaker is required to serve on the
State Preservation Board. Id. at § 443.003(a) (Vernon 2004).

        In addition to these service duties, the Speaker appoints members of other statewide boards
and commissions, including bodies within the Executive Department. See TEX. CONST. art. III, §
24a(a)(3) (requiring the Speaker to appoint two members to the Texas Ethics Commission); TEX.
GOV'T CODE ANN. § 71.012(5) (Vernon 2004) (requiring the Speaker to appoint one representative
to the Texas Judicial Council); id.§ 322.001(a) (requiring the Speaker to appoint two members of
the Legislative BudgetBoard); id § 443.003(a) (requiring the Speaker to appoint a member of the
State Preservation Board); id. § 801.1 04(b) (requiring the Speaker to appoint a representative to the
Texas Pension Review Board); ide § 815.002 (requiring the Speaker to appoint a trustee ofthe Tex,as
Employee Retirement System).

        Among these statewide roles, the· Speaker participates directly in significant aspects of the
State's fiscal and governmental management. See TEX. GOV'T CODE ANN. §§ 71.012(5) (Vernon
2005), 322.001, .008, .011, .017 (as Legislative Budget Board joint chair, the Speaker oversees the
State's budget and state agencies' operations and fiscal affairs); id. § 316.005 (the Speaker serves
on a Legislative Budget Board committee that adopts constitutionally required limit on growth rate
of appropriations in a biennium); id. § 481.078(e) (Vernon Supp. 2007) (requiring the Speaker to
approve grants from Texas Enterprise Fund for state economic development); TEX. CONST.art. III,
§ 28 (as one of five members of Legislative Redistricting Board, the Speaker is responsible for
redistricting State's senatorial and representative districts when the Legislature does not do so); TEX.
CONST. art. V, § 7a(e) (as a Legislative Redistricting Board member, the Speaker is responsible for
redistricting State's judicial districts when the Judicial Districts Board does not do so). In particular,
the Legislative Budget Board has significant authority over the execution of the State's budget,
including the right to require an audit of any State agency at any time. TEX. GOV'T CODE ANN. §§
322.010-.011(b) (Vernon 2005). The Legislative Budget Board also has authority both to halt the
expenditure of state funds to an agency in an emergency, id § 317.002, and to reduce the amount
of state funds sent to school districts ifthere are insufficient funds in the second year of a biennium
to fund the original amount. TEX. EDUC. CODE ANN. § 42.253 (Vernon Supp. 2007).

        Notably, this level of executive authority assigned to the Speaker under the constitution and
the Government Code is not shared by any other legislator. For instance, article III, section 28 ofthe
constitution lists the Speaker, alone among all legislators, as serving on the Legislative Redistricting
Board along with a group of executive officers: the Lieutenant Governor, the Attorney General, the
Comptroller of Public Accounts, and the Commissioner of the General Land Office. The
constitution provides that when the Legislative Redistricting Board takes action, it "shall be in
writing and signed by three (3) or more of the members of the Board duly acknowledged as the act
The Honorable James L. Keffer - Page 13                 (GA-0584)
The Honorable Byron Cook


and deed of such Board, and, when so executed and filed with the Secretary of State, shall have force
and effect of law." Id. The Legislative Redistricting Board's activity is not subject to review, veto,
or approval by the Governor, nor is it subject to a vote by the Legislature. Id. Such constitutionally-
mandated, self-executing authority is a "[d]efinite and specific governmental dut[y] and power[]"
imposed upon the Speaker that affects the State as a whole. Knox, 141 S.W.2d at 700.

        Beyond the scope and significance of his duties, it is also relevant to the sovereign-function
analysis that the Speaker performs many ofthese governmental functions in his own right, exercising
discretion without the oversight of others. See Green v. Stewart, 516 S.W.2d 133, 135-36 (Tex.
1974) (discussing whether a county tax assessor-collector performs a sovereign function of
government); Aldine, 280 S.W.2d at 582-83 (noting that one who acts in his own right is largely
independent of others' control); Dunbar v. Brazoria County, 224 S.W.2d 738, 740-741 (Tex. Civ.
App.-Galveston, writ refd) (same); see also Tex. Att'y Gen. Ope No. GA-0057 (2003) at 3-5
(distinguishing public officer from public employee on the basis of whether the officer performs a
sovereign function for the benefit of the public largely independent of the control of others). The
Speaker exercises his various appointment and oversight powers largely independent of others'
control. See, e.g., TEX. GOV'T CODE ANN. § 71.012(5) (providing no limitation on the Speaker's
power to appoint a member of the House to serve on the Texas Judicial Council), id § 322.001(b)
(the Speaker is ajoint chair with the Lieutenant Governor-an indisputable officer of the state-of
the Legislative Budget Board); id § 481.078(e) (Governor may award money appropriated fro,m the
Texas Enterprise Fund only with the express written prior approval of the Lieutenant Governor and
Speaker). These discretionary duties further demonstrate that the Speaker performs meaningful
sovereign functions of government. 14

         Finally, as discussed above, all of these duties are "continuing in their nature and not
occasional or intermittent." See Knox, 141 S.W.2d at 700. For instance, section 316.004 of the
Government Code requires the Legislative Budget Board to meet no later than December 1 ofevery
even-numbered year and begin a series of public meetings that culminate in its transmission of the
budget and the general appropriations bill to the Legislature no later than the first week of the next
regular session. TEX. GOV'T CODE ANN. §§ 316.004, 322.008 (Vernon 2005); see also ide §
322.008(d). Because it requires the Legislative Budget Board to meet as a predicate to the
commencement of the session, section 316.004 recognizes that the Board has to meet between
legislative sessions. See Hendee v. Dewhurst, 228 S.W.3d 354, 360-61 (Tex. App.-Austin 2007,
pet. denied). As joint chair ofthe Board, the Speaker necessarily exercises ongoing duties affecting
the fiscal management of the State during times the Legislature is not in session. Additionally,
article III, section 28 of the constitution makes clear that the Legislative Redistricting Board also
functions between legislative sessions. TEX. CONST. art. III, § 28. That Board's formation is not
even triggered until the Legislature fails to make an apportionment during the first regular legislative
session after the publication of each United States decennial census. Id.; see also In re Perry, 60
S.W.3d 857, 860-61 (Tex. 2001) (discussing how the Board "stepped into the Legislature's shoes



         14The Knox court also considered it significant that the superintendent's salary was fixed, and not subject to
change by the Board ofControl. Knox, 141 S.W.2d at 700. Because the Speaker does not draw a salary as Speaker, this
particular criterion does not bear on our analysis.
The Honorable James L. Keffer - Page 14          (GA-0584)
The Honorable Byron Cook


after that body failed to act"); Terrazas v. Ramirez, 829 S.W.2d 712, 727-28 & n.3 (Tex. 1991)
(orig. proceeding) (discussing same structure in detail).

        Having taken measure ofthe nature,.scope, and significance of the Speaker's constitutional
and statutory duties, we return to the benchmark set by Knox. By any standard, the Speaker's role
would seem to exceed the scope of the duties performed by the state hospital superintendent in that
case. See Knox, 141 S.W.2d at 700-701. As described by the Knox court, the hospital
superintendent's duties included being "custodian of and responsible for state property and state
funds." Id. at 700. He made semi-annual reports to the Governor regarding monies received and
disbursed. Id. The Knox court found these duties to be "governmental function[s] affecting the
public as a whole" and "[d]efinite and specific governmental duties and powers ... imposed upon
him in which the State as a whole is interested"-i. e., they were "sovereign functions" that tended
to show that the superintendent was a state officer under article XV, section 7. See ide Compared
to these duties, there can be little doubt that the Speaker's duties described above are likewise
"sovereign functions" for this purpose. Thus, a court applying Knox would likely find that the
Speaker exercises a sovereign function in that he "discharg[es] strictly a governmental function
affecting the public as a whole," see id., which in tum would favor treating him as a state officer.

        Some briefs depart from the Knox rubric and attempt to apply other authorities in analyzing
the Speaker's duties. But unless and until the Texas Supreme Court concludes that Knox does not
apply in analyzing whether the Speaker and President Pro Tempore are state officers for purposes
of impeachment, or provides a different paradigm for analyzing whether they are state officers, we
are bound to apply the Knox analysis.

         Moreover, these other authorities do not appear relevant to the instant question. For example,
one brief suggests that a court could decide that the Speaker's duties are analogous to the
"superadded duties" performed by the presidingjudges ofadministrative judicial districts, which do
not render the presiding judge's position a "new office." Eucaline Med. CO. V. Standard Inv. Co.,
25 S.W.2d 259,261 (Tex. Civ. App.-Dallas 1930, writ refd). But in Eucaline, the court reasoned
that the presiding judge performs functions that "are judicial in nature [and] are not inconsistent with
the constitutional duties of the district judge." Eucaline Med. Co., 25 S.W.2d at 261. Because the
Speaker's board and commission service and appointment duties, as described above, are not merely
legislative in nature, but are, instead, executive in nature, they are not analogous to the "superadded"
judicial duties ofpresiding judges in Eucaline. For the same reasons, the Supreme Court ofTexas' s
holding that Legislators appointed to the Tax Survey Committee were not entitled to additional per
diem compensation for their work between sessions has no bearing on how the Speaker's duties are
classified. Terrell V. King, 14 S.W.2d 786, 790-92 (Tex. 1929). The committee members in Terrell
were merely performing a function of the Legislature during the interim period between sessions.
See ide at 790 (concluding that the. Legislature has authority to maintain committees during the
interim between sessions). By contrast, the independent and executive nature ofthe Speaker's duties
transcend his role as a member of the Legislature or a legislative officer.

        We also reject the contention that In re Texas Senate would be read to conclude that the
President Pro Tempore and Speaker remain legislators who are not rendered state officers merely
by virtue of their additional duties. See In re Tex. Senate, 36 S.W.3d at 120-21. That case
The Honorable James L. Keffer - Page 15                  (GA-0584)
The Honorable Byron Cook


concerned the constitutional mandate that, if the Lieutenant Governor's office becomes vacant, the
Senate must elect a Senator to perform the Lieutenant Governor's duties until the next general
election. TEX. CONST. art III, § 9(a). The court wrestled with whether the Lieutenant Governor's
additional, non-legislator duties removed the Senator elected to perform the Lieutenant Governor's
duties from the category of Senate officers. In re Tex. Senate, 36 S.W.3d at 120-21. The court
concluded that they did not because an individual may be both a state officer and a legislative officer.
Id. at 120. Moreover, the court indicated that it was this Senator's performance of duties assigned
to the Lieutenant Governor as a member of the Executive Department that rendered him something
more than a Senate officer-even though he would not become an Executive Department officer
himself. See id. Because the Speaker's board and commission service and appointment duties
appear to be more executive than legislative, a court is more likely to conclude that In re Texas
Senate supports rather than refutes a conclusion that the Speaker, in that capacity, performs
sovereign functions or duties distinct from his duties as a legislator. 15

       In sum, applying the sovereign-function analysis set out in Knox, we conclude that the
Speaker's functions as Speaker are sufficiently sovereign in nature to suggest he is a state officer,
especially when compared to the functions of the .superintendent of a state hospital found to be
sovereign duties under Knox.

                         c.     Are the President Pro Tempore and the Speaker offices' terms fixed
                                by law?

        We turn to the question of whether the President Pro Tempore and the Speaker serve a term
fixed by law. See Dorenfield, 73 S.W.2d at 87; Knox, 141 S.W.2d at 700. "Where, therefore, the
tenure of the office is not fixed by law, and no other provision is made for removal, either by the
constitution or by statute, it is said to be 'a sound and necessary rule to consider the power of
removal as incident to the power of appointment.'" See Dorenfield, 73 S.W.2d at 87 (quoting
Mechem on Public Officers, section 445, page 284).16

         Article III, section 9 provides for the election ofthe President Pro Tempore and the Speaker:

                          (a) The Senate shall, at the beginning and close of each
                  session, and at such other times as may be necessary, elect one of its
                  members President pro tempore, who shall perform the duties of the


          15Por this reason, In re Texas Senate further rebuts the contention that the Speaker's duties encompass no
authority beyond the ordinary scope of a House officer. See, e.g., Geren et al. Brief at 11 ("There is no power that has
been given the current Texas Speaker that would result in revising the defmition ofa state officer under our Constitution
so as to now include the Speaker."); Price Supplemental Briefat 2-3 (contending that none ofthe Speaker's added duties
are "inconsistent with a speaker's role as a House officer and none give him 'sovereign duties' that would make him a
state officer~~ under article XV, section 7 of the Texas Constitution).

        16Dorenfield did not consider whether the Speaker or President Pro Tempore were state officers and,
consequently, did not apply this standard to their offices. As a result, we cannot determine whether the court would have
considered article III, § 11 expulsion as constituting another "provision ... made for removal." See Dorenfield, 73
S.W.2d at 86; see also TEX. CONST. art. III § 11.
The Honorable James L. Keffer - Page 16                 (GA-0584)
The Honorable Byron Cook


                 Lieutenant Governor in any case of absence or temporary disability
                 of that officer. If the office of Lieutenant Governor becomes vacant,
                 the President pro tempore ofthe Senate shall convene the Committee
                 of the Whole Senate within 30 days after the vacancy occurs. The
                 Committee ofthe Whole shall elect one ofits members to perform the
                 duties ofthe Lieutenant Governor in addition to the member's duties
                 as Senator until the next general election. If the Senator so elected
                 ceases to be a Senator before the election of a new Lieutenant
                 Governor, another Senator shall be elected in the same manner to
                 perform the duties of the Lieutenant Governor until the next general
                 election. Until the Committee ofthe Whole elects one ofits members
                 for this purpose, the President pro tempore shall perform the duties
                 of the Lieutenant Governor as provided by this subsection.

                         (b) The House of Representatives shall, when it first
                 assembles, organize temporarily, and thereupon proceed to the
                 election of a Speaker from its own members.

TEX. CONST. art. III, § 9(a)-(b); see also TEX. GOV'TCODEANN. § 302.001 (Vernon 2005) (directing
the House to elect a Speaker upon convening in regular session with a quorum present unless a
majority of the members present decides to defer the election).17

        Article III, section 9(a) of the T~xas Constitution provides that the President Pro Tempore
does not hold office for a fixed term: "The Senate shall, at the beginning and close of each session,
and at such other times as may be necessary, elect one of its members President pro tempore ...."
TEX. CONST. art. III, § 9(a) (emphasis added). Accordingly, a court would likely conclude the
President Pro Tempore lacks the requisite "term fixed by law" described in Dorenfield, 73 S.W.2d
at 87, and in Knox, 141 S.W.2d at 701.

        Section 9(b), by contrast, requires the House to elect a Speaker after first assembling and
organizing itself temporarily. See TEX. CONST. art. III, § 9(b). Some briefs received by this office .
compare subsection (a), which expressly recognizes that a President Pro Tempore may be elected
at any necessary time, with subsection (b), in which the House lacks express authority to elect a
Speaker at times other than when the House first assembles. These briefs contend that subsection
(b) provides the Speaker with a definite two-year term of office and precludes the House from
electing a new Speaker at any time other than after it has first assembled and organized temporarily. 18




         17The Speaker suggests this statutory provision may unconstitutionally expand the time during which the House
may select a Speaker. That determination is not necessary to resolving the questions presented. Therefore, we do not
evaluate the constitutionality of that provision.

         18See Speaker's Brief at 13-20; Speaker's Supplemental Brief at 6-11; Keel Brief at 3 n.1; Brief from
Honorable Bill Callegari, Chair, Committee on Government Reform, Texas House of Representatives, at 1-2 (Aug. 3,
200[7]); Brief from Honorable Jim Jackson, Texas House of Representatives, to Honorable Greg Abbott, Attorney
General of Texas, at 2 (July 30,2007).
The Honorable James L. Keffer - Page 17          (GA-0584)
The Honorable Byron Cook


        This argument is essentially the doctrine of statutory construction known as expressio unius
est exclusio alterius, or "the expression of one implies the exclusion of others." See Mid-Century
Ins. Co. v. Kidd, 997 S.W.2d 265, 273 (Tex. 1999). Though not an absolute rule, the doctrine aids
in determining legislative-or in the case of the constitution, the electorate's and the
legislature's-intent. See ide at 274.

        Under this argument, the House shall elect a Speaker only "when it first assembles [and]
organize[s] temporarily." We note however that the Supreme Court of Texas disfavors reading
words into constitutional provisions. See Damon v. Cornett, 781 S.W.2d 597, 599 (Tex. 1989)
(declining to modify the phrase "member of the Legislature" in article III, section 18 with the word
"former").

        We presume that all words included and excluded from an enactment are included and
excluded purposefully. See Red River Nat 'I Bankv. Ferguson, 206 S.W. 923,925 (Tex. 1918). We
presume that the Legislature never does a useless act. See Cameron v. Terrell & Garrett, Inc., 618
S.W.2d 535, 540 (Tex. 1981). We generally use the same rules of construction to construe the
constitution that we use to construe statutes. Tex. Att'y Gen. Ope No. GA-0293 (2005) at 2 (citing
Booth v. Stippleman, 61 Tex. 378 (1884)).

        Section 9(b) could have mirrored section 9(a) in providing that the Speakerbe chosen at the
beginning ofeach session, at the end of each session, and at such other times as necessary. See TEX.
CONST. art. III, § 9(a)-(b). But section 9(b) does not contain such language. The only reasonable
deduction based on the different language is the framers intended the times and occasions upon
which the Speaker is to be elected are different than times and occasions upon which the President
Pro Tempore is to be elected. The framers demonstrated knowledge and ability about how to
structure the election of a President Pro Tempore more than once during a session and thereafter.
Those same framers chose not to use a similar structure to elect a Speaker. The significance of that
distinction cannot be ignored. We must presume that the language in 9(a) was intended to have an
effect; accordingly, we must presume the framers' decision to omit it in section 9(b) was intended
to have a different effect.

        Thus, the contrasting language ofsubsections 9(a) and (b) suggests that the Speaker is elected
at the commencement of a regular legislative session and serves until such time as the next regular
legislative session begins. Article III, section 9(b) has a meaning that is different from section 9(a).
We must presume that this difference is intentional and that this difference is a manifestation of
voters' and legislators' intent to define when a Speaker serves as Speaker. This difference is
demonstrated by the constitutional provisions that require the Speaker to continue serving in that
capacity after the Legislature adjourns. See ide art. III, § 28. Neither that provision nor article III,
section 9(b) nor any other provision provides for the selection of a Speaker at any time other than
when the House of Representatives first convenes. See ide § 9(b). The only conclusion that can be
gleaned from the text ofthe constitution is the framers' intent that the duly elected Speaker continue
as Speaker after the regular session ends.

       This conclusion has been perpetuated by the Legislature itself. Numerous statutes require
the Speaker to serve on statewide boards and commissions, performing significant duties ofinterest
The Honorable James L. Keffer - Page 18          (GA-0584)
The Honorable Byron Cook


to the public as a whole, often explicitly when the House is not in session. In fact, the Legislature
expressly mandates ongoing service by the Speaker vis-a.-vis the Legislative Budget Board and the
Preservation Board. See, e.g., TEX.GOV'T CODE ANN. § 316.004 (Vernon 2005). The performance
ofthese significant duties between legislative sessions appears to be ofno less importance than their
performance during a legislative session.

        Indeed, those ongoing duties implicate another constitutional provision that supplies an end
point for the Speakership, which in turn further suggests that a Speaker serves a fixed term. Article
XVI, Section 17 provides that "[a]ll officers within this State shall continue to perform the duties
of their offices until their successors shall be duly qualified." TEX. CONST. art. XVI, § 17. The
Speaker's duties as joint chair of the Legislative Budget Board by law are ongoing at the time that
the next Speaker election occurs: the Board is obligated to meet no later than December 1 in the year
preceding the next regular session to begin calculating the State's estimated economic growth for
budget purposes, TEX. GOV'T CODE ANN. § 316.004 (Vernon 2005), and then to prepare and transmit
a copy ofthe budget ofestimated appropriations no later than the fifth day after the session convenes,
id. § 322.008(c). Thus, because the Speaker has these ongoing Board duties when the next Speaker
election occurs at the beginning of the session, and he is constitutionally commanded to continue
performing those duties until the next Speaker is "duly qualified," TEX. CONST. art. XVI, § 17, the
Speakership must continue until that point. That legally required ending point for the office further
indicates that the Speaker serves for a fixed term.

        Yet one briefcites article XVI, section 17 for the opposite proposition: unlike other "officers
within this State [who] continue to perform the duties of their offices until their successors shall be
qualified," the Speaker from a previous regular session does not serve until the succeeding Speaker
is selected. See Geren et al. Brief at 14 (quoting TEX. CONST. art. XVI,·§ 17, providing that "[a]ll
officers within this State shall continue to perform the duties of their offices until their succe~sors
shall be duly qualified"). This brief relies on the fact that, by statute, the Secretary of State or
Attorney General initially presides over the House until the election of a new Speaker. See TEX.
GOV'T CODE ANN. §§ 301.001-~005 (Vernon 2005). Accordingly, this argument proceeds, the
"position of Speaker is not embraced by the term 'all officers' in [article 16, section 17 ofthe Texas
Constitution] in that no Speaker continues to preside until his successor is qualified." See Geren et
al. Brief at 15.

        This argument assumes, however, that the Speaker must perform the duties described in
sections 301.001-.005 of the Government Code prior to the election of a new Speaker. See, e.g.,
TEX. GOV'T CODE ANN. § 301.003 (Vernon 2005), id §§ 301.001-.005 (the Secretary of State, or
in his absence, the Attorney General shall appoint a clerk to take minutes ofHouse proceedings); ide
§ 301.004 (the Clerk shall administer the official oath to each member-elect). The Speaker does not
have a duty to perform those functions; the Secretary of State, Attorney General, or clerk does. See
ide Nor does any constitutional, common-law, or contradictory statutory provision purport to assign
such duties to the Speaker. Moreover, this argument does not account for the fact that, as discussed
above, the Speaker is performing other statutory duties in this time frame as a member of the
The Honorable James L. Keffer - Page 19                  (GA-0584)
The Honorable Byron Cook


Legislative Budget Board. 19 Therefore, we do not discern from article XVI, section 17 the inference
that the Speaker is not an officer of the state.

         Other briefing suggests the differences between sections 9(a) and (b) are better understood
in light of when each ofthe officers at issue was designated to succeed the Governor in the event of
a vacancy in that office. The President Pro Tempore was placed in the line of succession at the time
the constitution was adopted in 1?76. Accordingly, it is suggested the constitutional framers
provided in great detail for the President Pro Tempore's role in the event ofa vacancy. The Speaker,
on the other hand, was not among those officers who might succeed the Governor at the time the
constitution was adopted in 1876,20 and the constitutional framers thus had no commensurate reason
to provide the same amount of detail for vacancies in the Speaker's office. See Geren et al. Brief
at 23-24 (suggesting that section 9(a) provides specifically for replacing the President Pro Tempore
because the "framers ... simply recognized that ... the [p]resident pro tempore may need to assume
the duties of governor"). Under this theory, "[t]he framer[]s['] acknowledgment that the
Constitution's provisions for gubernatorial succession might require this eventuality [in subsection
9(a)] can in no way be interpreted as a denial of any removal power that resides in the House [under
subsection 9(b)] . . . ." Geren et al. Brief at 24.

        This argument is inconsistent with the language of section 9(a) for several reasons. First,
section 9(a) does not provide any language indicating that the methodology for selecting a President
Pro Tempore has anything to do with the line of succession to the Governor. To the contrary, it
articulates reasons for selecting a President Pro Tempore that have nothing to do with the line of
succession. For instance, the first sentence states:

                  The Senate shall, at the beginning and close of each session, and at
                  such other times as may be necessary, elect one of its members
                  President pro tempore, who shall perform the duties ofthe Lieutenant
                  Governor in any case of absence or temporary disability of that
                  officer.

TEX. CONST. art. III, § 9(a). The reference to temporary disability obviously has nothing to do with
the line of succession. In addition, subsection 9(a) also provides that the President Pro Tempore
shall be elected at the beginning and the close ofeach session. TEX. CONST. art. III, § 9(a). Multiple



          19The argument also does not acknowledge the ongoing duties required of the Speaker after the adjournment
of the regular legislative session.

         2°The Speaker ofthe House was not added to the line ofthose officers designated to succeed the Governor until
1959, when the Legislature adopted Government Code section 401.023(a). See TEX. CaNST. of1876, art. III, § 9(a), art.
IV, § 16(c) (original version available at http://tarlton.law.utexas.edu/constitutions/text/1876index.html); TEX. GOV'T.
CODE ANN. § 401.023(a) (Vernon 2005); Act of May 8,1959, 56th Leg., R.S., ch. 232, § 3, 1959 Tex. Gen. Laws 527,
527 (enacting 401.023's predecessor); see also TEX. GOV'T CODE ANN. § 401.022 (Vernon 2005) (defming
"unavailable"). Under Government Code section 40 1.023(a), the Speaker exercises the powers and discharges the d:uties
of the office of Governor if the Governor, Lieutenant Governor, and President Pro Tempore of the Senate are
unavailable. See TEX. GOV'T CODE ANN. § 401.023(a) (Vernon 2005).
The Honorable James L. Keffer - Page 20                  (GA-0584)
The Honorable Byron Cook


occasions for electing the President Pro Tempore seem unnecessary if the intent were focused on
line-of-succession contingencies

        The line of succession seems more appropriately addressed in the remaining sentences of
section 9(a):

                  If the office of Lieutenant Governor becomes vacant, the President
                  pro tempore ofthe Senate shall convene the Committee ofthe Whole
                  Senate within 30 days after the vacancy occurs. The Committee of
                  the Whole shall elect one of its members to perform the duties of the
                  Lieutenant Governor in addition to the member's duties as Senator
                  until the next general election. If the Senator so elected ceases to be
                  a Senator before the election of a new Lieutenant Governor, another
                  Senator shall be elected in the same manner to perform the duties of
                  the Lieutenant Governor until the next general election. Until the
                  Committee of the Whole elects one of its members for this purpose,
                  the President pro tempore shall perform the duties of the Lieutenant
                  Governor as provided by this subsection.

TEX. CONST. art. III, § 9(a). Thus, the contrast in language between the first sentence of section 9(a)
and the only sentence of 9(b) seems to carry great weight.

        It is also suggested that Texas Government Code section 302.001 indicates the Speaker is
not elected for a fixed term because that section expressly allows the House members to defer
electing a Speaker. See TEX. GOV'TCODEANN. § 302.001 (Vernon 2005). Although this argument
may be instructive as to when the Speaker's term may begin, it sheds no light on whether, once that
term commences, it is fixed. 21

       The Speaker also urges a finding that he serves a definite two-year term because it "is
consistent with provisions in [the constitution] establishing that other public officers, including
appointed officers, serve fixed terms during which they are subject to removal only in specified
circumstances or under specific procedures." See Speaker's Brief at 16 (citing TEX. CONST. art.
XVI, §§ 30, 30a; id. art. V, § 24). This and similar arguments merely beg the question of whether
the Speaker is a state officer and, moreover, whether he is a state officer for purposes of removal
from office. Thus they are not conclusive on the question of whether the Speaker serves a fixed
term.

       The constitution is precise about when the Speaker's term begins-"when [the House] first
assembles." See TEX. CONST. art. III, § 9(b). Although neither the constitution nor statutes are
precise about when the Speaker's term ends, they clearly contemplate-in some instances
require-the Speaker to serve past the time when the legislative session adjourns and continue until



           21Also, as addressed earlier, an argument could be made that section 302.001 is unconstitutional to the extent
it differs from or alters article III, section 9(b). As noted above, we decline to opine on that question at this time.
The Honorable James L. Keffer - Page 21         (GA-0584)
The Honorable Byron Cook


the next legislative session begins. The only conclusion that can be drawn from this constitutional
and statutory framework is that the Speaker's term begins when the House first assembles for one
session and ends when the House first assembles at the beginning of the next session. As a result,
and especially in light of the meaningful differences in the constitutional language contained in
subsections 9(a) and 9(b), a court would probably conclude the Speaker's term is sufficiently "fixed
by law" that it satisfies Dorenfield and Knox. See Dorenfield, 73 S.W.2d at 87; Knox, 141 S.W.2d
at 701.

                     d.    Did the President Pro Tempore and the Speaker take oaths of office
                           or deposit bonds?

         Citing Knox, the Speaker suggests that his taking a constitutional oath of office-as
Speaker-is an indication ofa state office. See Speaker's Briefat 19-20; see also Knox, 141 S.W.2d
at 700 (referring to the fact that the superintendent of the San Antonio State Hospital took an oath
of office). Though neither the Knox court nor the Texas Supreme Court in Dorenfield articulated
why the oath was of significance in this analysis, and neither explained the weight to be accorded
to the oath, it appears to be an indication of state office. See Knox, 141 S.W.2d at 700; Dorenfield,
73 S.W.2d at 86-87. No brief disputes that the Speaker takes such an oath as Speaker-in addition
to the oath taken as a representative. TEX. CONST. art. XVI, § 1(a) (prescribing the official oath for.
"[a]ll elected and appointed officers"). However, taking the constitutional oath of office is but one
of several factors indicating whether a particular official is an officer ofthe state. While Dorenfield
and Knox support the notion that an official oath is an indication of state officer status, those cases
do not hold that taking such an oath, standing alone, would be dispositive as to whether an officer
is-or is not-a state officer for impeachment purposes. See Dorenfield, 73 S.W.2d at 86-87; Knox,
141 S.W.2d at 700-01.

        For similar reasons, depositing a bond is merely one of several indicia of whether someone
is a state officer. See Knox, 141 S.W.2d at 700 (including the depositing of a bond in a list of
considerations in determining whether someone is a state officer). In fact, the absence of a bond
requirement does not negate state-officer status. See Dorenfield, 73 S.W.2d at 86 (not including the
depositing of a bond from a list of facts considered in determining whether someone is an officer of
the state). Many officials who are indisputably state officers are not required to post a
bond-Attorney General, Supreme Court Justices, District Court Judges-just to name a few. See
also, e.g., TEX. CONST. art. IV, § 1 (listing the Attorney General as an officer of the Executive
Department of the State). We find'no authority, and no briefs submitted to this office suggest that
any statutory or constitutional provision requires the Speaker or President Pro Tempore to post a
bond. Considering all of this, it is unlikely a court would place much weight on the bond element
when determining whether the President Pro Tempore or Speaker is a state officer for purposes of
impeachment.

                     e.    Conclusion

       A court would likely find the President Pro Tempore is not an officer of this state for
purposes of removal from office under article XV, section 7 of the Texas Constitution and
Government Code chapter 665 . We base this conclusion on our determination that the President Pro
The Honorable James L. Keffer - Page 22           (GA-0584)
The Honorable Byron Cook


Tempore does not perform sovereign functions except provisionally, in the absence ofthe Lieutenant
Governor, and does not serve for term fixed by law. See Dorenjield, 73 S.W.2d at 87; Knox, 141
S.W.2d at 700. We do not believe a court would conclude that taking a constitutional oath, absent
other indicia of state office, is not sufficient to establish a position as an officer of this state for
purposes of removal from office.

        On the other hand, we believe a court would likely determine the Speaker is a state officer
on the bases that the person elected to this position by the House members performs sovereign
functions of this state and more likely than not serves a fixed term as provided by law. No one
denies that the Speaker, as Speaker, took an oath. Because we find no statutory requirement that the
Speaker post a bond, a court is likely to find the posting or absence thereof to be a relatively
insignificant consideration in this analysis.

        The sovereign functions performed by the Speaker seem greater in weight and scope than
those performed by the state hospital superintendent in the Knox case, in which the court concluded
the superintendent was a state officer under article XV, section 7 based on his duties ofreceiving and
disbursing state monies and being responsible for state property. Knox, 141 S.W.2d at 700. Also,
the meaningful substantive difference between subsections 9(a) and 9(b) favor the Speaker having
a term of office that is consistent with the fixed-by-Iaw discussion in Dorenjield and Knox. See
Dorenjield, 73 S.W.2d at 87; Knox,141 S.W.2d at 700. Based principally on the sovereign function
and fixed term considerations and bolstered by the Speaker's oath, we conclude the Speaker is likely
a state officer for purposes of impeachment under chapter 665.

        As discussed throughout, however, we are mindful of the lack of guidance in both the
applicable enactments and the case law analyzing those provisions. Neither the Texas Constitution
nor our statutes provide a clear definition of"state officer" for purposes ofwhether the President Pro
Tempore or Speaker is such an officer for purposes of impeachment. Nor do those provisions
provide or suggest clear guidance in this analysis.

        Additionally, Texas cases do not answer whether the Speaker and President Pro Tempore are
state officers for purposes of impeachment under chapter 665, and the cases discussing whether an
officer is a state officer for purposes oftrial and removal from office under article XV, section 7 are
similarly vague. In the end, the most applicable cases provide only a multi-part analytical framework
to analyzing whether an officeholder is a state officer subject to impeachment.

        B.    May the President Pro Tempore and the Speaker be removed from office only as
              provided in article XV, section 7 of the Texas Constitution?

        You next ask whether "state officers" are "subject to removal only as provided in Article 15,
Section 7 ofthe Texas Constitution." Request Briefat 1. Because we have concluded the President
Pro Tempore is not likely a state officer under article XV, section 7 or chapter 665, we conclude he
or she may be removed from office by means other than those prescribed in article XV, section 7 and
chapter 665 (enacted pursuant to article XV, section 7). Because we conclude the Speaker is likely
to be found a state officer, he may be removed pursuant to article XV, section 7. But as we explain
below, he may also be subject to lawful removal by other modes.
The Honorable James L. Keffer - Page 23                  (GA-0584)
The Honorable Byron Cook



        As already described, article XV, section 7 of the constitution provides, "The Legislature
shall provide by law for the trial and removal from office ofall officers ofthis State, the modes for
which have not been provided in this Constitution." Tex. Const. art. XV, § 7 (emphasis added).
In contrast to the article XV, section 2 list ofofficers over whose impeachment trial the Senate shall
preside, section 7 directs the Legislature to provide for "trial and removal" ofall officers ofthe state
for whom the constitution does not provide a mode of removal. Id. §§ 2, 7.

        The Legislature enacted chapter 665 ofthe Government Code pursuant to article XV, section
7. See TEX. CONST. art. XV, § 7 interp. commentary (Vernon 1993) (noting that article 59610fthe
Revised Civil Statut~s-the predecessor statute to section 665.007, Texas Government Code-was
enacted pursuant to chapter article XV, section 7). The Legislature provided that "state officers
 ... may be removed from an office or a position by impeachment in the manner provided by the
constitution and this chapter [665]." TEX. GOV'T CODE ANN. § 665.002 (Vernon 2004). The plain
language of section 665.002, then, authorizes impeachment ·under procedures provided in the
constitution and .chapter 665 itself. 22


        After setting out impeachment procedures in other sections of chapter 665, the Legislature
provided that "[t]he remedy of impeachment as provided in this chapter is cumulative of all other
remedies regarding the impeachment or removal of public officers." TEX. GOV'T CODE ANN. §
665.007 (Vernon 2004). This provision acknowledges methods ofremoval ofofficers other than by
the procedures for impeachment under the constitution and in chapter 665, and makes clear that
impeachment is cumulative of such other methods of removal. The Speaker acknowledges this in
his brief. In describing the duration of his term of office, the Speaker urges he "is entitled to serve
for the period to which [he was] elected by the members of [the House] under TEX. CONST. art. III,
§ 9, unless the member is appropriately expelled by the relevant chamber or removed by
impeachment or by another method that may be enacted under TEX. CONST. art. XV, § 7." Speaker's
Brief at 19. Because impeachment is cumulative, it is inherently not the exclusive authorized
procedure for removal of the Speaker or the President Pro Tempore, regardless of whether they are
officers of the State.


          22See Brief from Rayford Price, Rayford Price & Associates, at 2-3 (July 23, 2007) [hereinafter Price Brief]
(contending that, because the impeachment process requires both chambers to take some action, the situation could arise
in which the House votes to impeach its Speaker but the Senate does not convict, leaving the House in a difficult
situation); accord Geren et al. Briefat 7. The Speaker contends that "nothing in the Constitution requires an impeached
Speaker to be tried by the Senate." Speaker's Supplemental Briefat 13. The Speaker's assertion does not comport with
article XV or chapter 665 ofthe Government Code.. Article XV, section 7 authorizes the Legislature to establish modes
of removal-including impeachment-for officers not listed in article XV, section 2. Pursuant to that authority, the
Legislature enacted section 665.002 of-the Government Code. That statute provides for "impeachment in the manner
provided by the Constitution and [Chapter 665]." Under both provisions, an impeached Speaker would be tried by the
Senate. See also Ferguson v. Maddox, 263 S.W. 888, 890 (Tex. 1924) (stating that in matters of impeachment, each
chamber has "separate plenary power and jurisdiction in relation to matters of impeachment: The House the power to
'impeach,' that is, to prefer charges; the Senate the power to 'try' those charges."). See generally Tex. Att'y Gen. Ope
No. 0-898 (1939) at 3-4 (further detailing impeachment procedures). Under section 665.021, therefore, state officers
who are subject to impeachment under chapter 665 are tried by the Senate.
 The Honorable James L. Keffer - Page 24         (GA-0584)
 The Honorable Byron Cook


          In addition to the remedies authorized by article XV, the constitution allows each chamber
  to expel a member if two-thirds of the chamber consents. See TEX. CONST. art. III, § 11 ("Each
  House may determine the rules ofits own proceedings, punish members for disorderly conduct, and,
  with the consent oftwo-thirds, expel a member, but not a second time for the same offense."). Thus,
. articles III and XV refer to different remedies, one for legislators and another for state officers,
  respectively. This explains why the constitution contains a section on impeachment and removal in
  article XV, and an exclusion section in article III. See Red River Nat'iBank, 206 S.W. 925 (courts
  presume that words are included in an enactment purposely).

         Moreover, chapter 665 of the Government Code seems to accomodate article III expulsion
 by providing that "[t]he remedy of impeachment as provided in this chapter [665] is cumulative of
 all other remedies regarding the impeachment or removal ofpublic officers." See TEX. GOY' TCODE
 ANN. § 665.007 (Vernon 2004) (emphasis added). Ifthe Speaker were expelled from his House seat,
 it follows that he would also, effectively, be removed from the Speakership because the Speaker
 must be a member of the House. See TEX. CONST. art. III, § 9(b) ("The House of Representatives
 shall, when it first assembles, organize temporarily, and thereupon proceed to the election of a
 Speaker from its own members. ") (emphasis added). Similarly, if the President Pro Tempore were
 expelled from his Senate seat, it follows that he would also, effectively, be removed from the
 President Pro Tempore position because the President Pro Tempore must be a member ofthe Senate.
 Id. § 9(a) ("The Senate shall ... elect one of its members President pro tempore ...").

         Also, the House or Senate might elect to "exclude from office" a member, including one
 elected Speaker or President Pro Tempore, on the grounds that a member has been "convicted of
 bribery, perjury, forgery, or other high crimes." See TEX. CONST. art. XVI, § 2 ("Laws shall be made
 to exclude from office persons who have been convicted of bribery, perjury, forgery, or other high
 crimes."). As in the case of expulsion, such an exclusion would seem to "exclude from office" the
 Speaker or President Pro Tempore. See id.

         For these reasons, if a Speaker were to be impeached and convicted under chapter 665 and
 the constitution, the Senate's judgment would appear to provide the consequence of the
 impeachment conviction. TEX. CONST. art XV, § 7; TEX. GOY'T CODE ANN. § 665.002 (Vernon
 2004). That consequence could include removal from the Speakership. Alternatively, the Speaker
 or President Pro Tempore may be removed from those offices outside the scope of impeachment,
 as a consequenc~ of being expelled or excluded as a member ofthe Legislature, or any other lawful
 mode of which impeachment is cumulative.

 II.     What is the Effect of Removing the Speaker?

         You next ask:

                        If you conclude that ... the Speaker of the Texas House of
                 Representatives and the President Pro Tempore of the Texas Senate
                 are subject to removal only by impeachment or other trial and
                 removal proceeding under Article 15, Section 7 of the Texas
                 Constitution, what is the effect of the impeachment of either of these
The Honorable James L. Keffer - Page 25                (GA-0584)
The Honorable Byron Cook


                 officers? That is, does impeachment only remove them from the
                 legislative office of Speaker or President Pro Tempore, or does it
                 expel them from membership in the House/Senate in a manner
                 different from, and inconsistent with, Article 3, Section 11 of the
                 Texas Constitution?

See Request Brief at 1.

       First, as already noted, we do not conclude the Speaker or the President Pro Tempore may
be removed only be means of impeachment under article XV, section 7.

       Second, concerning the effect of impeachment, Texas Government Code, section 665.002
provides that state officers may be impeached in the manner provided in the constitution and chapter
665. TEX. GOV'T CODE ANN. § 665.002 (Vernon 2004) (enacted pursuant to article XV, section 7).
That section also provides that an "individual may be removed from an office or a position by
impeachment." Id.

       Article XV, section 4 of the Texas Constitution provides, "Judgment in cases of
impeachment shall extend only to removal from office, and disqualification from holding any office
of honor, trust or profit under this State." TEX. CONST. art. XV, § 4. Therefore, if the Senate
convicted the Speaker3 on articles of impeachment and entered judgment pursuant thereto, that
judgment could extend to removal of the Speaker from that position.

        Note, however, that the word "may" in section 665.002, and the word "extend" in section 4
imply that while the Senate's judgment can include removal and disqualification of the impeached
officer, it does not imply that removal and disqualification are required. See Spradlin v. Jim Walter
Homes, Inc., 34 S.W.3d 578, 580 (Tex. 2000) (presuming that the language ofthe Texas Constitution
is carefully selected, courts construe its words as they are generally understood and rely heavily on
the plain meaning of the constitution's literal text); see also WEBSTER'S NINTH NEW COLLEGE
DICTIONARY 439 (1990) (defining "extend" as "to spread or stretch forth ... to stretch out to fullest
length ... to exert (oneself) to full capacity"). Therefore, a Speaker could be impeached and
convicted on articles of impeachment, but the judgment against him could provide a sanction less
severe than removal or disqualification. In other words, "impeachment" would not necessarily
remove the Speaker from that state or legislative office.

III.    If the Speaker is Removed From Office, May the House Elect a New Speaker?

       Ifthe Speaker were removed from that office "by any legal means" during a session, you ask
whether the House has the power to select a new Speaker or whether it must "continue its operations
in the absence of' a Speaker, "in apparent conflict with Article III, Section 9 of the Texas
Constitution." Request Brief at 1.



         23We reference only the Speaker, and not the President Pro Tempore, in the discussion concerning impeachment
because the President Pro Tempore is not subject to impeachment.
  The Honorable James L. Keffer - Page 26                    (GA-0584)
. The Honorable Byron Cook


         We look first to the Texas Constitution for guidance on this issue. We previously explained
 that the constitution provides for the election of a Speaker after the House first assembles and
 temporarily organizes. The constitution is silent about electing a Speaker at any other point.

          Moreover, as we also discussed, we must give meaning to the textual differences between
 article III, section 9(a), which governs the President Pro Tempore's election, and article III, section
 9(b), which governs the Speaker's election. Subsection (a) expressly provides that the Senate may
 elect a President Pro Tempore at multiple times. TEX. CaNST. art III, § 9(a). But subsection 9(b)
 does not confer the same authority on the House in electing a Speaker. Id. § 9(b). We must presume
 that the inclusion ofthat language in section 9(a) and its omission from section 9(b) were deliberate
 and intended to have an effect. See Spradlin, 34 S.W.3d at 580; Cameron, 618 S.W.2d at 540; Red
 River Nat 'I Bank, 206 S.W. at 925. We cannot read into section 9(b) any language that the House
 may elect a Speaker at other times. See Damon, 781 S.W.2d at 599. 24

          We also find nothing in any statute that authorizes the election of a new Speaker if the
 incumbent Speaker is legally removed. Section 302.001 ofthe Government Code mirrors article III,
 section 9(b), providing for the election of a Speaker "[w]hen the house of representatives first
 convenes in regular session and a quorum is present and has been qualified." TEX. GOV'T CODE
 ANN. § 302.001 (Vernon 2005). Although that section also purportedly permits the House to vote
 to defer the Speaker election, any such deferral-if constitutional25-expressly applies only to the
 initial election of a Speaker when the regular session first convenes. Id Nothing in this section
 authorizes a Speaker election following removal of an incumbent Speaker.

         In the absence of any constitutional or statutory directive on this point, some briefs suggest
 that the House Rules or House precedents could allow election of a new Speaker in the event of a
 vacancy after the regular session commences. 26 Whether the House would extend these rules and


           240ne briefposits that "the plenary power given the House over its own affairs by sections 8, 9, and 11 ofarticle
 III of the Texas Constitution" confers authority to remove the Speaker and elect a new Speaker at any time. Geren et
 al. Brief at 13. But none of the three provisions cited grants authority to elect a Speaker at any time other than after the
 House fITst assembles and temporarily organizes. TEX. CONST. art III, § 9(b). Section 8 appoints the House as "the judge
 of the qualifications and election of its own members." Id. § 8 (emphasis added). This authority regarding elections to
 membership in the House in no way addresses the election of the Speaker. As noted, section 9 is the only section in
 article III that speaks to this question, and it provides for a Speaker election after the House fITst assembles and
 temporarily organizes. Id § 9(b). Section 11 generally permits each House to "determine the rules of its own
 proceedings." Id. § 11. But this general authority regarding House affairs cannot trump the specific mandates ofsection
 9 dealing with the election of the Speaker. San Antonio & Aransas Pass Ry. Co. v. State, 128 Tex. 33, 42, 95 S.W.2d
 680, 686 (1936) (explaining construction canon that specific constitutional provisions control over general ones); Byers
 v. Patterson, 219 S.W.3d 514,522 (Tex. App.-Tyler 2007, no pet.) (same). Finally, as we previously acknowledged,
 section 11 does give the House authority to expel a member-even one who occupies the Speaker's office-but nothing
 in that clause addresses the election of a new Speaker in that circumstance.

          25Again, we express no opinion on the constitutionality of this deferred-election provision.

           26For example, Representative Callegari states in his briefthat, although he believes that article III, section 9(b)
 identifies the only "temporal juncture where it is appropriate for the House to elect a Speaker," he also believes that the
 House may adopt rules to anticipate a Speaker's "unanticipated departure" because of "death, illness, or even
                                                                                                                (continued...)
The Honorable James L. Keffer - Page 27                  (GA-0584)
The Honorable Byron Cook


precedents to hold a new Speaker election in the situation you describe is, of course, a matter for the
House to decide in the first instance. We simply note that we can find no Texas authority that
authorizes these practices.

        We acknowledge that some briefs contend that the House also has a Speaker Pro Tempore,
whose office is not established by the constitution or statutes but by House rule. You do not ask, and
we do not address, whether the Speaker Pro Tempore, who is not elected by the House, becomes
Speaker if the Speaker is removed from the Speaker's office. Cf TEX. CONST. art. III, § 9(a)
(directing the President Pro Tempore of the Senate, in the event of a vacancy, to convelle a
Committee ofthe Whole Senate to elect a new Lieutenant Governor). See generally Request Letter.

       Finally, if the House were to proceed without a Speaker in the event ofa vacancy, we do not
agree with your suggestion that those circumstances would "conflict with Article III, Section 9 of
the Texas Constitution." Request Brief at 1. With respect to the Speaker, article III, section 9
contains only one requirement: that the House elect the Speaker after it first assembles and
temporarily organizes. TEX. CONST. art III, § 9(b). That section says nothing about the House's
operations if the Speaker's office thereafter becomes vacant.

IV.      Does the Speaker Have Unlimited Ability to Refuse to Recognize House Members?

        You ask finally whether the House rules "effectively give the Speaker unlimited ability to
prevent his removal (by simply refusing to recognize members for the required motions)." Request
Briefat 1. The question asks this office to decide matters that are internal to the House. 27 Moreover,
the question would require this office-in violation of the constitutional separation of powers-to
construe House rules that have been adopted by the House in accordance with its constitutional
authority to "determine the rules of its own proceedings." See TEX. CONST. art. III, § 11.



         26(... continued)
resignation." Callegari Brief at 1-2. See also Price Brief at 4 (suggesting that future House rules could provide for
replacement of removed Speaker); Pitts Brief at 8-9 (relying on parliamentary manuals for proposition that the House
may elect a new Speaker in the event of a vacancy).

         And several briefs recount occasions when the Speaker's office became vacant mid-session and the House
elected a new Speaker to fill the vacancy. See, e.g., Speaker Brief at 32 (citing mid-session speaker elections in 1846,
1857, 1861-63, 1909, and 1972); McCall Brief at 4 (citing 1871, 1909, and 1972 mid-session elections); Geren et al.
Brief at 8-9 (same). These briefs do not, however, cite any constitutional or statutory provision that specifically
authorized those elections.

         We also note that there are several instances in which a new Speaker has been elected after a Speaker resigns.
See, e.g., H.J. of Tex., 62d Leg., 2d C.S. 3-32 (1972) (Speaker Price elected after Speaker Mutscher resigned); H.J. of
Tex., 31st Leg., 1st C.S. 6-7 (1909) (Speaker Marshall elected after Speaker Kennedy resigned); H.J. ofTex., 12th Leg.,
R.S., 1480, 1484 (1871) (election ofSpeaker Sinclair following adoption ofresolution that Speaker's office was vacant).

        27See Brief from Honorable Jodie Laubenberg, Vice-Chair, Committee on Public Health, Texas House of
Representatives at 1 (Aug. 3, 2007) (arguing political reasons for attacks on Speaker Craddick); Brief from Honorable
Dan Flynn, Texas House ofRepresentatives, to Honorable Greg Abbott, Attorney General ofTexas, at 1 (July 25, 2007).
The Honorable James L. Keffer - Page 28                 (GA-0584)
The Honorable Byron Cook




        Article II, section 1 expressly prohibits any person in one department from exercising a
"power properly attached to either of the others" except as the constitution expressly permits. TEX.
CONST. art. II, § 1. Article III, section 11 of the constitution plainly delegates the determination of
a chamber's rules ofprocedure to that chamber. See ide art. III, § 11. 28 Because ofthe constitutional
separation-of-powers doctrine, this office-a part ofthe Executive Department-historically has not
construed a legislative chamber's rules ofprocedure. See TEX. CONST. art. III, § 11; Tex. Att'y Gen.
Ope No. H-55 (1973) at4 (declining to construe House rules);29 cf Tex. Att'y Gen. Ope No. JC-0501
(2002) at 4 (declining to consider whether proposed legislation falls within the jurisdiction of a
particular House committee because of the House's authority to establish its own rules).
Accordingly, this office will adhere to these precedents and constitutional mandates in declining to
answer questions requiring an Executive Department ruling on House rules.

         For the same reasons, this office will not review a parliamentary decision that the Speaker
made in the most recent legislative session. Any such review as posed by your request would require
us to resolve fact questions, a task in which this office does not engage. See Tex. Att'y Gen. Ope No.
GA-0446 (2006) at 18 ("Questions of fact are not appropriate to the opinion process.").




         28See also Brieffrom Honorable Terry Keel, Parliamentarian, Texas House ofRepresentatives, at 2-3 (July 20,
2007). As Parliamentarian Keel explains, the House adopts its rules at the beginning of each session and should debate
public-policy considerations, legal arguments, and practical consequences at that time. Id at 4.

         29See also Brief from Honorable Warren Chisum, Chair, Committee on Appropriations, Texas House of
Representatives, at 1-2 (July 20, 2007) (stating that the Attorney General is being asked to construe rules, which he
should not do); Callegari Brief at 1 (stating that "as a matter of propriety and legislative prerogative," the Attorney
General should leave the issue to the appropriate chamber to resolve); Laubenberg, Brief at 1 (stating that a chamber
should "shoulder the responsibility for" its own rules).
The Honorable James L. Keffer - Page 29       (GA-0584)
The Honorable Byron Cook


                                     SUMMARY

                      The Texas Constitution and state statutes are silent as to
             whether the President Pro Tempore of the Senate and the Speaker of
             the House are "officers of this State" for purposes of removal from
             office under article XV, section 7 of the Texas Constitution. Thus,
             any interpretation of this question must be governed by court
             decisions. The Texas Supreme Court has issued one opinion and
             adopted one opinion concerning article XV, section 7 removal-the
             Dorenfield and Knox cases. Although neither decision is a model of
             clarity, they are the best authority available.

                     In both Dorenfield and Knox, the courts found the officers in
             question-the San Antonio State Hospital Superintendent and a
             member of the Texas Review Commission-to be state officers.
             Altl;1ough not purporting to layout an exhaustive list of potential
             factors, the two decisions examined, inter alia, whether the officials'
             offices were created by law, whether the officers performed sovereign
             or governmental functions that affect the public as a whole and are
             continuing in their nature, whether they served terms fixed by law,
             and whether they took constitutional oaths of office.

                     Applying this analysis, we believe a court would likely
             conclude that the President Pro Tempore of the Senate is not a state
             officer. Although the President Pro Tempore's office is created by
             law and requires a constitutional oath, the office's relevant duties are
             primarily provisional in nature, having effect only in the absence of
             the Lieutenant Governor, and the term of office is not fixed by law.

                     Applying the same analysis, however, a court would likely
             conclude that the Speaker of the House is a state officer. The
             Speaker's office is created by the Texas Constitution. The Speaker
             performs numerous sovereign and governmental functions that affect
             the general public, including the substantial and ongoing statutory
             responsibility of serving as Joint Chair of the Legislative Budget
             Board. The Speaker most likely serves for a fixed term: his tenure
             explicitly begins when the House first assembles and temporarily
             organizes, and, due to his ongoing duties imposed by law, must
             continue until the next session commences. Finally, the Speaker
             takes the constitutional oath of office in addition to his oath as a
             House member.

                    The Texas Supreme Court has concluded that a Texas Review
             Commission member and the Superintendent of the San Antonio
             State Hospital are state officers. Given those holdings, we believe a
The Honorable James L. Keffer - Page 30        (GA-0584)
The Honorable Byron Cook


              court would likely conclude that the Speaker's substantial sovereign
              and governmental functions affecting the general public as a whole
              exceed those exercised by the Texas Review Commission member
              and the Superintendent of the San Antonio State Hospital and, as
              such, the Speaker is an officer of the state.

                      As a state officer, the Speaker is subject to impeachment
              under article XV, section 7 of the Texas Constitution. But the fact
              that the Speaker can be impeached under article XV, section 7 does
              not mean that impeachment is the only means ofremoving a Speaker.

                     At a minimum, both the Speaker and the President Pro
              Tempore are subject to expulsion under article III, section 11 of the
              Texas Constitution or exclusion under article XVI, section 2 of the
              Texas Constitution. Indeed, section 665.007 ofthe Government Code
              expressly provides that "the remedy of impeachment as provided in
              this chapter is cumulative of all other remedies regarding the
              impeachment or removal ofpublic officers." TEX. Gov' T CODE ANN.
              § 665.007 (Vernon 2004) (emphasis added).               Accordingly,
              impeachment is not the only way to remove a Speaker.

                     Ifthe Speaker were impeached, the Texas Constitution allows
              the impeachment judgment to extend to, but need not include,
              removal from office or disqualification from holding office. And if
              the Speaker were legally removed from office, article III, section 9(b)
              of the Texas Constitution-on its face-neither requires nor
              precludes the election of a new Speaker by the House.

                      Finally, this office will adhere to the Texas Constitution's
              separation ofpowers doctrine and longstanding precedent in declining
              to answer questions requiring an interpretation of Senate and House
              Rules or questions regarding legislative parliamentary decisions.

                                             Very truly yours,




KENT C. SULLIVAN
First Assistant Attorney General

ANDREW WEBER
Deputy Attorney General for Legal Counsel
The Honorable James L. Keffer - Page 31    (GA-0584)
The Honorable Byron Cook


NANCY S. FULLER
Chair, Opinion Committee

Kymberly K. Oltrogge
Assistant Attorney General, Opinion Committee
