Honorable    Preston   Smith                   Opinion    No.   M-728
Governor    of the State of Texas
State Capitol   Building
Austin,   Texas   787 11                        Re:      Whether   Price   Daniel is
                                                         eligible for appointment
                                                         to the Texas Supreme      Court
                                                         in view of the fact his son
                                                         is a member     of the House
Dear   Governor    Smith:                                of Representatives?
           ,-~
           Your   recent    request   for   an opinion   of this office   poses   the follow-
ing question:

          “Would you please    advise this office whether     or not
          fokn.&r governor,    PrikDaniel,     is eligible  for ap-
          pointment  to the Supreme     Court of Texas,    since his
          son, Price   Daniel,  Jr.,  is a member     of the Texas
          House of Representatives?       ”

             We fitid that the eligibility    qualifications   for the office of a Supreme
Court Justice      and the authoTization      for appointments      to fill such a vacancy
are set out in the Constitution        of Texas,      which created    the Supreme    Court
by its Sections.     1 and 2 of Article    V.    The provisions      of Article  V relating
to eligibility   and appointments       are as follows:

           “Sec.    2. The Supreme        Court shall consist of a Chief
           Justice    and eight Associate      Justices, any five of whom
           shall constitute     a quorum,     . . . No person shall be eli-
           gible to the office     of Chief Justice or Associate      Justice
           of the Supreme       Court unless he be, at the time of his
           election,    a citizen   of the United States and of this state,
           and unless he shall have attained the age of thirty-five
           years,    and shall have been a practicing        lawyer,   or a_
           lawyer    and judge of a court of record       together   at least
           ten years.     . . . In case of a vacancy     in the office   of any



                                            -3528-
Honorable     Preston     Smith,    page   2     (M-728)




            Justice    of the Supreme     Court, ‘the Governor       shall fill
            tne vacancy      until the xx-general       election  for state of-
            ficers,    and at such general     election    the vacancy    for the
             unexpired    term shall be filled by election       by the quali-
             fied voters    of the state . . .I’ (Emphasis       added.)

            “Sec.   28. Vacancies      in the office of judges of the Supreme
            Cart,    the Court of Criminal       Appeals,    the Court of Civil
            Appeals    and the District    Courts   shall be filled by the Governor
            until the next succeeding      General    Election;   . , . ” (Emphasis
            added. )

           Other constitutional  qualifications    and disqualifications       applicable
alike to .judges and other offices   of public trust are contained        in Sections
2, 5, 12, 40 and 41 of Article     XVI, and Section 4 of Article         XV, of the Texas
Constitution.    None of these constitutionally     enumerated       disqualifications    re-
lates to kinship with a member      of the Legislature.

           Although     the above quoted specific       provisions     for appointments    by
the Governor     to fill judicial    vacancies   do not require     Senate confirmation,
this rCfice expressed       the opinion in Attorney       General’s     Opinion No. O-1092
(1939)   that the general      provisions    of Section    12 of Article    IV are applicable
to these judicial    appointments       and require    that they be confirmed       by the
Senate.    This interpretation       has been followed      for many years by Texas
Governors     and Senates.       The relevant    portion Section      12 of Article   IV reads:

             “Sec.    12. All vacancies        in State or district      offices,~
             except members         of the Legislature,        shall be filled un-
             less otherwise      provided     by law, by appointment           of the
             Governor,      which appointment,         if made during its ses-
             sion, shall be with the advice and consent of two-thirds
             of the Senate present.         If made during the recess            of the
             Senate,    the said appointee,       or some other person to fill
              such vacancy,      shall be nominated        to the Senate during
             the first ten days of its session           . . . Appointments         to
             vacancies     in offices   elective   by the people shall only
              continue until the first general         election    thereafter.     ”

             Your inquiry thus raises  the controlling             question of whether the
 general    statutory provisions of the Anti-Nepotism               Law (Articles  432-435   of



                                            -3529-
Honorable     Pr.eston   Smith,    page   3     (M-728)




Vernon’s    Penal Code) apply to those offices      created  by the Constitution   and
for which the Constitution    has enumerated     the qualifications   of those eligible
to serve and the method of appointment       to fill vacancies.     We quote the per-
tinent portion   of Article 432:

            “No officer      of this State nor any officer         of any district,
            county,    city, precinct,       school district,      or other muni-
            cipal subdivision       of this State,    nor any officer      or mem-
            b’er of any State district,        county,   city,    school district
            6k other municipal         board,   or judge of any court,         created
            by or ‘under authority        of any General       or Special   Law of
            this State, nor any member            of the Legislature,        shall ap-
            point,   or vote for, or confirm         the appointment       to any of-
            fice’, poiition,     clerkship,     employment       or duty, of any
            person    related    within the second degree by affinity            or
            within the third degree by consanguinity               to the person     So
            appointing     or so voting,      or to any other member          of any
            such board,       the Legislature,      or court of which such per-
            sorl so’ appointing      or voting may be a member,            when the
            salary,    fees,    or compensation       of such appointee       is to be
            paid for, directly       or indirectly,     out of or from public
            funds or fees of office        of any kind or character         whatso-,
            ever;   . . .‘I

           Article    433 enumerates     the offices       to which    “The   inhibitions   set
forth in this law. . . ” shall apply,       including       executive    officers,    judges,   mem-
bers of the Legislature,        members     of State      Boards,     school boards,      city
councils,    etc.    Article  434 prohibits    trading      of appointments,        and Article
435 prohibits      payment   of warrants    or other       conpensation      to ‘I. . . such ineli-
gible officer     or person,   knowing him to be          so ineligible.    ”

        , It is apparent       that the Act was intended to cover a vast number of
statutory  State,   district,     county and city offices      and to make ineligible        for
appointment    relatives      of the appointing     or confirming    officers.      With   refer-
ence to statutory     offices,     the Act has been held valid in numerotis            decisions
of the Courts and opinions          of the Attorney    General.     Although     the language
of the statute is comprehensive           enough to apply to constitutional         officers
whose qualifications       are fixed by the Constitution,         our research      reveals
that no decision     exists which       holds that they are applicable         to such offices.
Consequently,     the fact situation       presented   by your request,        as applied to



                                          -3530-
Honorable     Preston    Smith,    page   4    (M-728)




the anti-nepotism  statute, presents   a legal question of construction                     of Ar-
ticle 432 which has not been previously     passed upon in this state.

           Article   432 has been construed       by this office to apply to a brother
of one of the members       of the Legislature     (House)   so that he might not be
appointed    to serve on the Board of Directors         of the Guadalupe-Blanc0
Authority.     Attorney   General    Opinion No. O-6428 (1945).         However,     there
is no opinion of this office passing       upon the application     of this statute to
those officers     whose qualifications     on grounds of eligibility    or ineligibility
are prescribed      by the Constitution    of Texas,    and therefore    any Attorney
General    opinions   which have construed      the statute would be distinguishable
from this situation     presented.

         The rule in Texas and in a majority                of the other    states      is stated    in
34 ALR2d   155, 163-171,  as follows:

            “Generally      speaking,       a state legislature’s       powe;   as to
            prescribing      eligibility     qualifications    for constitutional
            officers    ordinarily       is not equivalent    to its power to pre-
            scribe    such qualifications         for statutory    offices    . . .
            (p. 163. )

            “It is quite generally      considered       that where a Constitu-
            tion lays down specific        eligibility     requirements     for a par-
            ticular   constitutional    office,     the constitutional     specifica-
            tion in that regard      is exclusive      and the legislature      (except
            where expressly        authorized      to do so) has no power to re-
            quire additional      and different      qualifications    for such con-
            stitutional   office. ” (p. 17 1. )

          This general majority  rule is stated in 81 C. J. S. 988, States, Sec.
 66; 42 Am. Jur. 909, Public Officers,   Sec. 38, notes 11 and 12; 42 ALR 909;
 47 ALR 481; 95 ALR 294; 143 ALR 599; 18 ALR2d       241 and 71 ALR2d 352.

            Does the Texas Constitution,        either expressly     or impliedly,      give
 the Legislature     the power to impose     additional   or different   qualifications
 for a Justice of the Supreme      Court than those set out in Article          V, Section
 2? We can find no such power.          Article    V, Section 2, confers      no such legis-
 lative power,     nor does any other Section under Article          V, covering     the Judi-
 cial Department.       We further  observe     that the legislative    power to pass
 nepotism    statutes   is not even mentioned      in the Constitution.


                                          -3531-
Honorable        Preston   Smith,    page    5      (M-728)




              The subject of nepotism        is deemed to be one personal        type of
 disqualification       for office.     22 RCL 401, 88 ALR       1103.   The enactment
 of nepotism      statutes finds its validity      in the exercise   of the police power,
 and the legislature         “may prescribe     such qualifications    for the holding of
 a statutory     office    as it sees fit, as long as it does not interfere       with any
-qualification     prescribed       by the Constitution.  ” 88 ALR      1104.  (Emphasis
 added. ) See Ann. Cas.             1917D, 735.

          We will now discuss       the ledding Texas cases in support of the fore-
going rule of constitutional      construction.     The first is Dickson   v. Strickland,
114 Tes.    176, 265 S. W. 1012 (1924) in     . which Mrs.    Ferguson’s    eligibility
for the offi~ce of Governor     was challenged     because   she failed to meet resi-
dence requirements      of Articles     3082 and 3083a, which were not set forth
in the Texas Cotistitution     for the office of Governor,      and also because the
common    law prohibited    a woman from serving        as Governor.     With reference
 to the statutes which purported            to add residence         qualifications,        the Texas
 Supreme    Court declared:

            II     . In so far as this act related    to officers,    such as
            the Governor,      whose qualifications    had been particularly
            and carefully    and differently    enumerated     in the Consti-
            tution,   it cannot be doubted that it was utterly void. ”
            (at p. 1015. )

             The Supreme    Court cited 9 RCL               1124 and Cooley’s    Constitutional
 Limitations    (7th Ed. ), page 99 for cases              from other states,    and quoted
 the following    language  from the Supreme               Court of Illinois  in People    v.
 McCormick,        103 N. E. 1057:

            ” ‘In our judgment,           when the Constitution           undertakes       to
            prescribe      qualifications        for office,     its declaration       is con-
            clusive    of the whole matter,            whether      in affirmative       or in
            negative     form.       Eligibility     to officn    belongs     to  all persons.
            In our Constitution          no other form bf stating eligibility               to
            office   is found than the declaration              that no person        shall be
            eligible   who does not possess             certain      qualifications.        The
            Constitution     of the United States is in the same form in
            this particular.        and so are the Constitutions               of other states.
            The expression         of the disabilities         specified     excludes      others.
            The declaration         in the Constitution         that certain       persons     are




                                                 -3532-
Honorable     Preston    Smith,    page    6        (M-728)




            not eligible  to office    implies  that all other persons            are     eli-
            gible. ’ ” (Emphasis       added. ) (at p. 1015. )

            The   Supreme     Court    of Texas     then continued:

            “The qualifications        of public officers,        when defined by the
            Constitution,     are as clearly        beyond change by the Legis-
            lature as are the qualifications            of electors   when fixed by
            constitutional     provision.       It is the declared     law, by both
            the Court of Criminal         Appeals      and the Supreme       Court of
            this state,    that it is beyond the power of the Legislature
            to add an additional        qualification     for an elector    to those
            prescribed      by the Constitution.          Solon v. State,    54 Tex.
            Cr. R. 261, 114 S. W. 349; Koy v. Schneider,                  110 Tex.
             378, 218 S. W. 479, 221 S. W. 880.”                (at p. 1015.)

           Th e Court then quoted from             an opinion     in Steusoff    v.     State,   80 Tex.
430,   15 S. W. 1100 (1891) as follows:

            ” ‘Eligibility     to office     is not declared     as a right or principle
            by any express          terms of the constitution,         but it rests as a
            just deduction        from the express        powers    and provisions     of
            the system.         The basis of the principle         is the absolute    liberty
            of the electors         and the appointing      authorities    to choose and
             appoint any person who is not made ineligible                  by the consti-
            tution.     Eligibility      to office therefore     belongs    not exclusively
            or specifically         to electors    enjoying   the right of suffrage.        It
            belongs      equally to all persons        whomsoever        not excluded by
             the constitution.        ‘.” (q+ p. 1019. )

           In Kilday v. State ex rel Candler,      75 S. W. 2d 148 (Tex. Civ. App.
 1934, Motion for leave to file mandamus        refused by the Supreme    Court in
 75 S. W. 2d 253), an attempt was made to have the name of James V. Allred
 removed    from the ballot because   of a violation   of Article 3173of the Election
 Code limiting    campaign  expenses.    The San Antonio Court of Civil Appeals
 said:

             “The Constitution      of Texas having prescribed      the re-
             quisite qualifications      for one to be the Governor     of the
             state and having fixed the grounds of ineligibility         appli-
             cable to that office,     it is beyond the power of the Legis-
             lature to add another ground of disqualification.         ”

                                               -3533-
Honorable        Preston     Smith,   page   7        (M-728)




            .    .   .   .


            “Therefore,      the first    sentence   of article    3173, quoted
            above,    in so far as it imposes        a test of eligibility    or ineli-
            gibility   for one to have his name placed on the official              bal-
            lot at the general      election    as the nominee      of a party and
            a candidate    for the office      of Governor     is unconstitutional.
            To prescribe      a qualification     or disqualification      for one to
            have his name placed on the ballot as a candidate                 is to pre-
            scribe a qualification        or disqualification     to hold the office
             . . . II

            . . . ..

             ‘1. . : The framers     of the Constitution     at the time made
             detailed   provisions   as to qualifications     and disqualifica-
             tions of the Governor,       in connection   with which only one
             reference     was made to disqualifications       arising   from
             elections,    namely,   article   16 5 5, relating    to bribery    in
             elections.     Thus it is apparent     that the Constitution     not
             only did not authorize      the Legislature    to create new quali-
             fications   for the Governor,     but upon~the contrary       fore-
              closed all future legislation     upon that subject. ” (at p.
            : 150. )

                In overruling   a motion to file a petition   for the mandamus,    the
Supreme          Court wrote an opinion,     reported   in 75 S. W. 2d 253, in which it
expressly         concurred   in the language    of the Court of Civil Appeals:

                “The Supreme         Court concurs      in the conclusion     stated in
                the opinion of Chief Justice          Bickett,   in words as follows:
                 ‘The Constitution      of Texas having prescribed         the requisite
                ‘qualifications     for one to be the Governor        of the state and
                having fixed the grounds of ineligibility           applicable     to that
                 office,    it is beyond the power of the Legislature           to add
                 another      ground of disqualification.      ’

                “We deem it best to add only a few words to the clear dis-
                cussion of this question  in the opinion of the Chief Justice.
                On this point, his opinion firmly   rests on Dickson v. Strick-




                                                 -3534-
Honorable     Preston    Smith,    page   8        (M-728)




            land,   114 Tex.  176, 265 S. W. 1012. . . The main question
             in that case was whether    the disability  of coverture      rendered
            Mrs.    Ferguson  ineligible  to be Governor.     The question       here
             is simply whether    a nominee   had been rendered      ineligible
            under a statute adding to the tests of eligibility      specified    in
            the Constitution.    The court held in Dickson v. Strickland,
            supra,   that the constitutional    tests of eligibility   to hold the
            Governor’s     office  could not be altered    by statute.    Chief
            Justice   Bickett’s   opinion follows    that decision,  ” (at p. 257. )

            In Burroughs     v. Lyles,    142 Tex.   704, 181 S. W. 2d 570 (1944),               the
Supreme      Court declared     unconstitutional   Article    2929a, which     provided            that
no person     elected  or appointed     to an executive    or administrative     public          of-
fice for a term of more than two years           shall be eligible   for nomination              or
election   to another office the term of which begins before            expiration    of         term
or original     office unless he first resigns.       The Court said:

             ‘1. . . It was held by this court in Dickson v. Strickland,                 114
             Tex.    176, 265 S., W. 1012, that where the Constitution              pre-
             scribed   the qualifications     for office   it is beyond the legis-
             lative power to change or add to the qualifications,               unless
             the Constitution     gives that power.       That decision     was re-
             affirmed    in State ex rel Candler       et al v. Court of Civil Ap-
             peals et al, 123 Tex.        549, 75 S. W. 2d 253.      The statute here
              involved   seeks to impose      an additional    test of eligibility,      other
             than what is prescribed        by the Constitution,      on a candidate
              for State office,    and for that reason it is void. ” (at p. 574. )

             Citing and following      the above cases,   the Texas   Court         of Criminal
 Appeals     held in Ex Parte Le       Fors,  347 S. W. 2d 254 (1961):

              “Neither   the courts nor the Legislature    have the authority
            ; to add to the qualifications   prescribed  by the Constitution
              for the office  of District  Judge . . . ” (at p. 255. )

           In the Kilday     case,     supra,    it was argued that the statutes were a
 mere exercise      of the police power to regulate           elections    and prevent     and
 punish corrupt     practices,      rather than to add eligibility        qualifications    for
 holding  constitutional     offices.     In  rejecting  this   distinction,     the  Court  held
 that a statutory    test of eligibility     which prevents       a person from obtaining



                                          -3535-
Honorable     Preston   Smith,    page   9         (M-728)




a constitutional    office   by election   amounts to an added         qualification     and is
unconstitutional.       In this connection   the Court of Civil        Appeals     said:

            II . . . To prescribe    a qualification    or disqualification
            for one to have his name placed on the ballot as a candi-
            date is to prescribe     a qualification    ordisqualification      to
            hold the office.     . . . If he is not disqualified       to hold the
            office,   he is not disqualified     to have his name placed on
            the ballot.    This statute does undertake        to add a disquali-
            fication   not provided   nor authorized     by the Constitution.      ”
            75 S. W. Zd 150.

           The Supreme   Court,  in refusing          a motion for mandamus               in the
above   case (75 S. W. 2d 253, 257) arrived           at the same conclusion,             adding

            ‘I. ‘~. . The question    here is simply whether       a nominee
            had been rendered        ineligible    under a statute adding to
            the tests of eligibility      specified   in the Constitution   . . .”

By analogy,      the question   here is simply whether         an otherwise   qualified
appointee   to a constitutional     office   is rendered    ineligible  under a statute
which would prevent        the~senate    from confirming      the appointee   on account
of his relation     to a House member.         Paraphrasing       the Court’s holding
and applying’,it     to such an appointee,      we cannot escape the following        con-
clusion:

            To prescribe      a qualification     or disqualification      for one
            to be appointed     to an office    is to prescribe      a qualification
            or disqualification     to hold the office     . . . If he is not
            disqualified    to hold the office,     he is not disqualified        to be
            appointed.       When applied to constitutional          offices,    this
            statute does undertake         to add a disqualification        not pro-
            vided nor authorized        by the Constitution.

              The Anti-Nepotism      Act seeks to restrict       the appointing  and con-
 firming     authorities  by adding eligibility    disqualifications     as shown by the
 words of the statute itself.       Article   433, Vernon’s       Penal Code,   specifically
 refers    to “The inhibitions    set forth in this law . . . ” and Article       435 spe-
 cifically    designates  the proscribed     appointee   as ‘I. . . such ineligible      office
 or person,      . . .”



                                             -3536-
Honorable     Preston    Smith,    page   10       (M-728)



            We have,         therefore,    concluded   that this Act is valid as to the many
statutory     offices     to which it applies,     yet it can have no valid application         to
constitutional       offices    for which the Constitution      itself enumerates      the quali-
fications    and disqualifications         of persons    who may be elected       or appointed
thereto.      Since under settled         cannons of statutory     construction,     we must
presume      that the Legislature         had the intent to enact a constitutional        anti-
nepotism      statute in harmony         with the Constitution,      we must hold that the
Legislature       did not intend that such statute apply to those offices             which the
Constitution       created. and for which it prescribed          the qualifications     without
granting    to the Legislature          any authority   to add to such qualifications       or eli-
gibility   requirements.

           In view of the foregoing,      we answer your question      in the affirmative
having concluded      that if Price   Daniel meets all the constitutional     eligibility
requirements      for appointment     as a Justice of the Supreme     Court,   he is not
ineligible   because    his son is a member      of the Texas Legislature.       Article
432, Vernon’s      Penal Code,     does not apply to the office of a Justice of the
Supreme     Court.           ’

                                      SUMMARY

                     If Price    Daniel meets all of the eligibility        quali-
            fications    enumerated       in the Texas   Constitution     for ap-
            pointment      to the office    of a Justice of the Supreme        Court,
            he is not ineligible       for such appointment      because     his son
            is a member        of the Texas House of Representatives.              Ar-
            ticle 432, Texas        Penal Code, the Anti-Nepotism            Act, is
            not applicable,       since the Legislature     had been given no
            authority     to add to or alter the eligibility      qualifications
            prescribed       by the Constitution     which created     such office.

                                                  Youryvkry     truly,




                                                  Attorney    C&era1     of Texas
                                                              I,’
Prepared     by Kerns     Taylor




                                               -3537-
Honorable        Preston    Smith,   page   11     (~-728)




APPROVED:
OPINION   COMMITTEE

W.   E. Allen,     Acting    Chairman

John Grace
Houghton Brownlee
J. C. Davis
Ralph Rash

Meade F. Griffin
Staff Legal Assistant

Alfred   Walker
Executive    Assistant

 Nola    White
 First    Assistant




                                                 -3538-
