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                            Drcember 3, 1957

    Hon. ~TrlceDaniel       Opinion No, W- 3@5
    Gwemor of Texas
    C&to1 Station         Re: Whether by virtue of the provl-
    Austin, Texas             sions of Section 18 Article,111,
                              of the Texas Constitution,a
                              member of the Legklatura Is eii-
                              gible for appointment by the
                              Owernor to an office In the Exe-
                              cutive ‘Departmentduring tinetbrm
    Dear Governor Daniel:     of office f,orwhich he Is elected.
              You have requested our o inion as to whether by vir-
    tue of the provisions 0::Section 1t; Article III of the Texas
    Constltltution,a member of the Legkleture is eligible for
    appointment by the Gwornor to an office in the Zxecut:va De-
    partment during the term of office for which he is ekcted,
    ~iiichappointment requires confirmationof the knate, ,i:ndwhen
    tineLegislature of whhichhe 2,sa member ha:-not creatcclthe
    ;,ositlonnor incrciiscii
                           nor changed the emoluments of theioffice.
             Article    III, tijsct:.on
                                    18, of the State Constitution is
    as follows:
               “No Serator or P.:?;:rasuntative
                                              shall, during
        tk term for :Aich he riay be elected, be eligible
        tc,any civil office of profit under this State
        which shall have been created, or the omolum&       of
        which msy have been increased during such term; no
        member of either Hcuse shall during the term for
        :&lch he is clectcJ, 110cllg~ble tc any office 3r
        pl:lCJ,  %hrdappointment tc Rich may be ntiido, ,in
        yL,“t;”    +n part, by f!lthcrbranch of tl:ci.c&isla-
                or 4
                              0:’ ‘-iither
              ; &ridno ti:Iumbcr         Eouse shall votr;.:‘c:r
        ary   otha .memborYor :,nyc.fficewhatever, \fi,ich 1.:
                                                            ,‘J
        be filled by a vote tij’  the Legislature,e:%cpt In
        such cclsesIASare in this Constitutionizovldad.
        Hor shall any member of the Legislaturebe inter-
        ested, either directly or Indirectly, in any con-
        tract with the State,,or any county thereof, nu%or-
        ized by any 1~ pas-ec;<duringthe term for cJhic1;   he
        shall have been olccted.V’
             The answer to your question depends upon the interpre-
    ktion of the’second sentence of Section 16, which reads that
’   1




    Hon..Price Daniel, page 2   (WW-305)


    "No member of either House shall, during the term for which he
    is elected, be eligible to any office or place the appointment
    to which may be made, tn whole or &n nart bv ejther branch ot:
    the Leaislatura: . . .   It therefore becomes necessary to de-
    termine whether confirmation by the Senate under the provisions
    of Section 12, Article IV, of the Texas Constitutionconstitutes
    an nappointment'lby the Senate. If the act of confirmationby
    the Senate is an *appointment",then under the clear, unamblgu-
    ous phraseology of Section 18, Article III, no member of the
    Legislature,during his term of office, is eligible for appoint-
    ment by the Governor, if confirmation Is essential.
              In an opinion written by Assistant Attorney General
    R. W. Fairchild, considered in conference and approved by Gerald
    C. Mann, Attorney General of Texas, as Opinion No. o-1092, Con-
    ference Opinion No. 3076 answering an almost identical question,
    the Attorney General held that confirmation by the Senate con-
    stituted an integral part of the nappo$ntmentnand, therefore,
    under the provisions of Section 18, Article III; no member of
    the Legislature was eligible for appointment by the Governor to
    anv offfee which required confirmationby the Senate of Texas
    under the provisions of Section 12, Article IV of the Constitu-
    tion during the term of office for which the legislator had been
    elected.
              The opinion by Attorney General Mann has exhaustively
    briefed the authorities upon which the ruling was based and, in
    addition, has carefully cited and discussed prior opinions of
    preceding Attorneys General and dlstinguished their holdlngs.
    We conciLTin the ruling by Attorney General Mann above referred
    to and adopt the following quotations therefrom:
              "The determination of the question of eligibil-
         ity of a Legislature, during the term of office for
         which he is elected, turns upon the meaning to be
         given the word 'appointment.,'used In the second
         clause of Article 3, Section 1.8.
              "If the term 'appointment'is used in the broad
         sense that is, as comprising that completed series
         of acts by virtue of which a person may acquire the
         rlght to &&and    u    an office, then the Legisla-
         tor is ineligible to such 'appointment'In this in-
         stance, for one of the steps in that proceeding,
         necessary to be performed to entitle the person to
         take and hold the office consists in confirmation
         by the Senate. On the other hand, if the term lap-
         pointment' as used therein is Synonymous with 'nom&
         nation,' that is, if it means no more than the act of
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    Hpn. Price Daniel, page 3     NW-305)


            naming the person who, if the other steps necessary
            to entitle him thereto are favorably completed, may
            take and hold the office, then the Legislatorwould
            be eligible, for the power to ‘nominateI is vested
            in this instance in the Chief Executive alone.
                 “In the determinationof the meaning to be as-
            cribed to the.word ‘appointmentt as used In the
            second.clauseof Article 3, Section 18, the words
            ‘in whole or in part,I used in the same clause, are
            of particular significance. By the application of
            well-known and commonly understood rules of gramma-
        .   tical construction,it is apparent that the words
            ‘In whole or in part’ modify the term preceding them
            in the clause, towit, ‘appointment.I Ihe meaning of
            the clause, therefore may be grasped more readily
            by restating it as follows:,
                 !IIIfthe whole or a   part of the appointment to
            an office may be made by   either branch ‘of the Legis-
            lature, no member of the   Legislature shall, during
            the term for which he’ie   elected, be eligible to
            such office or place.’
                   “If the’term ‘appointment,( ‘used in Article 3,
            Section 18, was intended to have no greater meaning
            than ‘nomination,’it is difficult, if not Impossible,
            to ascribe an> reasonable meaning .to the words ‘in
            part.I It is, therefore, important to note that the
            framers   of the Constitution contemplated that an
             ‘appointment’might be divisible into parts, and that
            a part of the ‘appointment’might be made by “either
            branch of the.Legislature.I .
                 “Necessarily,it seems to us, it was contem-
            plated by the framers of the 1876 Constitution that
            an ‘appointment’might consist of,several steps, the
            performance of each of which was necessary,to vest In
            the person the right to take and hold the office or
            place, and that the performance of one of these steps
            in the ‘appointment’might be vest,edin one branch of
            the Le islature. It is significant to note that Ar-
            ticle $ Section 12, of the Constitution,Itself vests
            in the &enate the performance of one of the steps
            necessary to entitle a person to &&Q a’ndm     a State
            or district office; that is, such ,provisionof the
            Constitutionrequires the Senate to confirm or reject
            persons named by the Governor to fill vacancies In
            State or district offices, as a condition precedent to
Hon. Price Daniel, page 4   (‘N-305)


     the right of such persons to take and hold, until
     the next general election, such offices.
          Vhus it is evident that the framers of the      *
     Constitution had in mind, by the very language used
     by themselves, in such Constitution,one of the
     methods by which a branch of the Legislaturemight
     perform one of the steps necessary to entitle a
     person to take and,hold an office‘or place. On the
     other hand, it is not easy to comprehend how a
     branch of the Legislature might exercise part of the
     power to ‘nominateI a person to fill an office or
     place. It would seem that In order to give full
     effect to the Constitutionalprovision so that the
     interpretationthereof might accord with the inten-.
     tion of its framers and the fullest protection
     afforded against the evils sough,ttherein to be safe-
     guarded against, the term ‘appointment’should be
     construed as having the broader meaning attributed
     to it above.
          I,
           . . .
          fp’Je
              are of the opinion that; where confirma-
     tion by either branch of the Legislature is required
     to be had, under Article 4, Section 12, of our Con-
     stiV&ion, a member of the Legislature is ineligible
     to be named to fill such office or place.
          “The ineiigibil.ltyof the Legislator to such
     office or place extends throughout the entire period
     of time assigned by the people to the office of mem-
     ber of the Legislature, to which he was eiected.
     Zuch ineligibilitymay not be removed by resignation
     from~,theoffice, for the Constitutiondoes not provide
     that it shall continue only during such a period of
     time OS he Is a mem’berof the Legislature, or during
     the pried of time that he actually served as such
     but expressly provides that ,theinel,igi’billty
                                                   shall
     endure ‘dur-ingthe term for which he is elected.‘IV
          Among the authorities cited In support of this Yuling
are Brown VT&&&,    4j Tr-r.b78 (1895);Denison v. Stat%
S.W.2d X17, 102I (Clv.App. 1933 error ref., 61 S.W.2d ;Q$);
               , 24 Tex. 337 (1.8$9),and Ex uarte Hennan 13
                  The Supreme Court of Texas has recent& re-
affirmed the holding in      on v. State m,      in Wa.l.ker
                                                           e#
j&&g, 145 Tex. 121,.196%%2d     324 (194b,).
                                           :
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         Hon. Rice   Daniel.,page 5   (~~-305)


                   It is our opinion that no member of the Legislature
         is eligible for appointment by you to an office In the Executive
         Department which requires confirmationby the Senate during the
         term of office for which the legislator has been elected, even
         though the Legislature of which he is a member has not created
         the office or changed Its emoluments.


                   No member of the Legislature is eligible for
              appointment by the Governor to anoffice in the
              Executive Department which requires confirmation
              by the Senate during the term of office for which
              the legislator has been elected, even though'the
              Legislature of whlch.he is a member has not cre-
              ated the office or changed Its emoluments,
                                          Yours very truly,
                                          WILL WILSON
                                          Attorney General of Texas




         CKR:wb                             Assistant
         APPROVED:
         OPINION COMMITTEE
         Geo. P. Blackburn, Chairman
         John H. Minton, Jr.
         Wayland C. Rivers, Jr.
         J. C. Davis, Jr.
         Joe Wheeler
         Mark McLaughlin
         W. V. Geppert
