PIXICE IDANfEL


                           December 13,'1950.

      Hon. Allaa Shivers            opin1011 no. v-1132.
      Governor of Texas
      Austin, Texas
                 :'                 Re:     COnstltutlona~lty   or that
                                            ,part of Article  118d, Sec-
                                            tion 2, V.C.S.,   providing
                                            ror the rliilng   or vacan-
                                            cies ia the Texas Citrus
      DearGovernor     Shivers:             Commlsslon.
                   YOU have requested     the oplnlon   or this   orrlce,
      as   r0ii0wfi:
                    'The Texas Citrus Co~lsslon    vas created
             ;;lzHsz     Bill 29, Acts or.the Flrty-rlrst   Leg-
                        . In Section 2 the qualirlcatlons    or
             comm~sslon~ members~are set forth and the.Gov-
             ernor is designated as the appolotlngauthor-
             ity.
                   "In the same section,   the statute states
             that vacancies  shall~be filled   by a quorum of
             the remaining members of the Texas Citrus Com-
             mlsslon for t&e balance of the unexpired term
             of the member whose office    Is vacated.
                    "I would like your oplnlop as to whether
             this partlcuJ@r p+tipn.or    House Bill 29 Is
             constitutional."
                   The provision  you rerer to is from Section 2
      of Article    118d, V.C.S.,  an4 reads, In part, as follovs:
                   (I      The Governoi or the State of Texas
             shall ippoint men with the quallrlcatlons      stated
             above to be members of said Commlsslon, by and
             with the adv$ce and consent of the Senate.        . . .
             Thereafter,   the term of orrlce of each appointee
             shall be ror six (6) years and until their suc-
             cessors are appointed and qualify.      Vacancies
             shall be filled   by appointment by a quorum of
             the remaining members of the Texas Citrus Com-
             mission ror the balance of the unexpired term II
             of the membee whose office    Is vacated.
             IEmphasis added throughout thls,oplnion.j      ' '
Hon. Allan   Shivers,   Page 2,   (V-1132).


           The provision   of the Constitution  of Texas
pertinent  to filling   vacancies In State orrlces,  or
which the members of the Texas Cltrus Commission are
unquestioned examples, Is Article    Iv, Section 12, and
It reads, in part, as follows:
              “All vacancies In State or district       of-
       rices,   except members of the Legislature,
       shall be filled      unless otherwlse provided bx
       law,
       -      by appointment of the Governor, . . .”
                ,,.
              The Legislature,      In the case of the Texas Clt-
rus Colmn~sslon, has provided that vacancles~occurring
therein shall be filled         otherwise than by appointment of
the Governor.       Provision r0r such legislative      expression
Is, clearly    found In the constitutional      section just re-
cited, which constitutes         unambiguous constitutional    au-
thority for the provision          concerning the Texas Citrus
Colmplsslon here In question.
          A clear enunciation of the rule as to statutes
of the character under consideration here Is round In 67
c.J.s. 215, Ofiicers, Sec. 52, as r0ii0m:
            “A constitutional    provision   that, when
     an ~orrlce becomes vacant, the governor,        un-
     less otherwise provided by law, shall appoint
     a person to fill      the vacancy, who shall con-
     tinue In office      until a successor has been
     elected or appointed,      and has legally    quall-
     rled, was intended merely to prevedt vacancies
     In office,   and to provide a niethod for filling
     them when no other provision        Is mad& by law;
     and thus It does not prevent the legislature
     from teclarlng     hoe a vacancy shall be rllled.
      . . .
             The foregoing   expression Is supported    the
                             , 208 MO. 708, 106 S.W. 3 4, 988
                             owing language Is found:
             “The General Assembly ‘may take the ap-
      pointing poner rrom the Governor, and the
      power of filling    vacancies In such cases may
      be conferred on others than the executive.
      In the exercise    of the power to create or-
      rices,   they may declare when they are vacant
      and who shall fill    the vacancies.‘”
Hon. Allan   Shivers,    Page 3,    (V-1132).


            A very clear analogy Is also found:~ln the case
of People v. lose, 9'Cal. App. 1,48, 98 Pac. 241;244           (lgo8),
In which the Court held:-
                            >
            " . . . Nor Is there any express provl-
     slon In the Constitution      applicable     to the
     case at bar providing for the appointment
     or a controller     In case or a vacancy.         It
     Is true that 'the Cohst%tutlon provldes'ln
     section 8,'art.~ 5, as we have seen, for the
     appolntietit   to fill   a vacancy when no mode
     Is provided 'by the Constitution         and law.'
     But this Is Inoperative      here, rorthe       rea-
     son that a mode has been provided by law ror
     ~rllllng a'vacancp.      Uh   th c       tltutl,on
     speaks of a mode provli:d      bz lQ$z Constltu-
     tlon and law' It obviously means 'the Con-
     stitution    or law."'   or~co~se the law must
     be In harmony wlththe       Constitution;      In    .' ~'.'
     other words, not opposed to any of Its pro-




      tory'   (artlcle~,l,:B22),      but It-la a faialllar
      prlnclple     that the .organlc lav provides simply
      a llmltatlon      upon the~power or the Legislature,
      which otherwise is supreme.            There Is ,no man-
      date nor proh,lbltlon,       as we view It, In the'
      Constitution      that bars the right and author-
      ity of the Legislature         to provide for the con-
      tingencies     we haves suggested;       The people,
      therefore,     through the lawmaking department
      of the government, have the right to exercise
      this privilege,       which they have not surrendered.
      'The declarationin         article    4, 81, of the Con-
      stitution;     ' The legislative      power of this state
      shall be vested In a Senate and Assembly, which
      shall be designated the Legislature            of the state
      of California,"        comprehends the exercise       of all
      the soverelgn'authorlty          of the state In matters
      which are properly the subject of legislation;
      and It ls'locumbent        upon any one who vlll      chal-
      lenge an act.,of the Legislature          as being Invalid
      to shop, either that such act ls~wlthout             the
      province 0r legislation,           or that :the particular
.




    3on. Allan   Shivers,   Page 4,   (V-1132).


         subject-matter     of that act has been by the
         Constitution,     either bye express provision
         or by necessary lmpllcatlod,        withdrawn by
         the people from the conslderatlvn         of the
         Legislature.      The preeumptlcn which attends
         every act of the Legislature        Is that It Is
         within Its power; and he who would exempt
         It from the power must point out the par-
         ticular   provlslon    of the,.Constltutlon    by
         which the exception      la ,=ge, or demonstrate
         that It-is    palpably excluded from any con-
         sIderatIon    whatever by that body.'       . . .
         The leglslatlon      to whickwe have referred
         Is obviously Mlthln $he province of the Leg-
         islature,    and It Is not obnoxious to any
         provision    or the Constltutlon.'      . . ."
                 It appears that the Constitution     of Texas au-
    thorizes   the Legislature     to provide the mode ror flll-
    lng vacancies    In State office.6 where there ls.nc other
    constitutional    mandate to the contrary,     There Is no
    provision    In the Con'stlt.utlon ,of Te%as speclrlcally
    establishing    a mode for flllltrg~,vaoancles  In the Texas
    Citrus Commission.      It Is, therefore,within the power
    of the Legislature     to provide the mcde.for rllllng     va-
    cancies In the Texas Cltru8 Comtssron.         The ract that
    the Legislature    has provided that such vacancies shall
    Abe filled   by a quorum of the remaining members ofthe
    Commlsslon.does not vitiate       the proposed procedure vlth-
    In the compreheaslon of any other provision         of the Con-
    stitution    or Texas.


               Article   118d, Section 2, V.C.S.,    pro-
         vldlng,for    the fllllng  of.vacanoles   In the
         Texas Citrus Commlss$on by appointment by
         a quorum of the remaining Commlsslon members
         Is In harmony with the provisions       of Artlale.
         IV, Section 12, of the Constitution       of Texas
         and is constItutIonali
    APPROVED:                          ,Yours very truly,

    Red McDaniel                          PRICE DARIEL
    State Afralrs   Division            Attorney General
    Rverett Hutchlnson~
    Executive Assistant
    Charles D. ldathews
    First Assistant
    DJC:jmc
