.       -



                          TEIEATTORNEY                      GENERAL
                                         OF TEXAS
                                       AUST’IN   11.%-E=S

       WILL     WILSON
    *TrGRNEY       GENERAI.

                                           July 15,1957


         Hon. Robert S. Calvert                     Opinion No. WW 190
         Comptroller   of Public Accounts
         Capitol Station                            Re:     Claim of $799.81 of Frank
         Austin, Texas                                      M. Jackson, Secretary-
                                                             Director of the Teachers
            Dear Mr.   Calvert:                             Retirement   System

                        YOU have referred to this office for advise as to the authority
            of the Legislature to make an appropriation    to pay the above captioned
            claim.  We are treating your reference    as an official opinion request.

                     TheFifty-fifth     Legislature    has made an appropriation    to
         Mr. Jackson in the amount above indicated to pay his claim.            The
         claim is based upon Mr. Jackson’s         salary as Secretary-Director
         of the Teachers    Retirement     System for the full month of March,
         1957, in the s,utn of $750.00    and $175.00 for seven days for the
         month of April.     This claim is for the net salary for the month of
         March in the sum of $624.81 and $175.00 for seven days in the month
         of April, aggregating     a total of $799.81 which sum was appropriated
         by the Legislature.     This $175.00 will be subject to the usual deductions.

                         You submitted an affidavit of Mr. Jackson which reveals most
            of the facts, but some are added which we have obtained from The Teach-
            ers Retirement    System.  We quote the pertinent part of Mr. Jackson’s
            affidavit.

                             “I was appointed Executive Secretary-Director
                       of Teacher Retirement     System of Texas by the State
                       Board of Trustees,    Teacher Retirement   System of
                       Texas on March 1, 1957 at a monthly salary of $750.00.
                       I assumed my duties as of March 1, 1957. The Chairman
                       of the Board of Trustees    of the Teacher Retirement
                       System told me I would be paid from March 1, 1957.

                             “On March 31, 1957, I received     a State Warrant
                        in the net amount of $624.81.

                              “I was confirmed by the State Senate on April 8,
                        1957. On April 9, 1957, Robert S. Calvert, State Comp-
                        toller of Public Accounts called me and advised that
                        I should repay the Teacher Retirement    System the
                        amount of the warrant plus $15.00 Teacher Retirement,
                        $16.99 Social Security and $93.20 withholding tax for
Hon. Robert    S. Calvert   page 2     (WW-190)




             March1957.   I have complied with the request of the
             State Comptroller  in returning the full amount of
             $750.00.

                   “This claim is made for the March 1957 net
             salary plus an additional 7 days in April in the
             gross amount of $175.00,  making a total of $799.81.”

             We add the resolution taken from the minutes of the Teachers
Retirement    Board, dated February   28, 1957, which is as follows:

                  “Mr. Frank Jackson of San Angelo, Texas, was
             unanimously   elected as Executive Secretary to fill
             the position of Mrs. B. B. Sapp.”

             Sub-seci  4 of Sec. 12 of Article 2922-1 Vernon’s           Civil   Statutes
provides   as to the executive duty in part as follows:

                  “He shall recommend    and nominate to the State
             Board of Trustees   such actuarial and other service
             as shall be required to transact the business of the
             Retirement  System.”

            Sub-sec.   (a) of Sec.   12 of Article   2922-l   Vernon’s     Civil Statutes
is as follows:

                  “The general administration    and responsibility
             for the proper operation of the Retirement    System and
             for making effective the provisions   of this Act are here-
             by vested in a State Board of Trustees,    which shall con-
             sist of seven members   who shall be appointed as follows:”

            Mr. Jackson assumed his duties as Executive-Secretary          on
March 1, 1957, and has continuously      served in that capacity.    When he
assumed his duties on March 1, 1957, he did not take an oath of office
nor is any required of him by any provision of the law governing the
Teachers    Retirement  System.    He did give a bond in the s urn of
$25,000.00   payable to the State Board of Trustees       as provided in
Sub-section   2 of Sec. 16 of Art. 2922-l V.C.S.      Under date of March
12, 1957, Mr. Jackson’s   appointment as Executive Secretary        was sub-
mitted to the Senate for confirmation      or rejection and the same was
confirmed by the Senate on April 8, 1957.

           Mr. Jackson took the usual constitutional oath of office,                al-
though the statute nowhere required him to take an oath, and the
Governor  issued a commission   to Mr. Jackson on April 10, 1957
Hon.   Robert   S. Calvert   page 3   (WW-190)




             Our answer as to the validity of this appropriation    depends
upon whether Mr. Jackson is an officer of the State, as distinguished
from an employee of the Board or more properly speaking an em-
ployee of thenState.   If an officer of the State, then for the purpose of
this opinion we assume the provision of the statute requiring conflr-
mation by the Senate is valid.      But since his appointment   was while
the Legislature   was in session     and was submitted to the Senate while
in session his appointment as an officer of the State, if he is one, was
not complete until confirmed by the Senate.       There would be no legal
basis to pay him as such officer until his appointment was completed
by confirmation   of the Senate.

            In 81 C.J   S. 1001, we find this language:

                 “The governor,  in exercising  his power of ap-
           pointment must, if the law so requires,   act in con-
           junction with another body, and he cannot exercise
           the power of appointment alone, but must obtain
           proper confirmation   of his appointment before such
           appointment is valid;. . .”

            In support of this statement from the text is cited Denison
v. State, 61 S.W.Zd 1017 (Civ. App 1933 Error Ref.)   Denison v.?%&-&
rel Allred,   122 Tex. 459, 61 S.W.2d 1022 (1933).  The rule is clearly
stated in the case of McBride vs. Osborn, 127 Pac. 2d, 134 Supreme
Court of Arizona    in the following language:
                 *a
                   . . .The approval of the senate is just as necessary
           as the action of the executive to complete the appointment
           and give the appointee any right whatever to take over the
           office and discharge    its duties. In McCall v. Cull, 51 Ariz.
           237, 75 P. 2d 696, 699, the court used the following    lan-
           guage in discussing    an appointment to the Live Stock
           Sanitary Board, which the law requires to be done with
           the advice and consent of the Senate:

                  ” ‘* * * Under this statute, his power to appoint is
            in conjunction with the Senate.    The two must concur.
            The Governor cannot exercise      the power alone.  He may
            put into motion this joint power by first appointing the
            officer, but such appointment is ineffective until and un-
            less ratified or confirmed by the Senate.***’    ”

             In brief if Mr. Jackson’s appointment by the Board of Trustees
is to an office of the State as distinguished    from an employee he had no
legal right to assume the duties of the office until his confirmation     was
completed.     The appointment was made while the Legislature      was in
session.   It would, therefore,   follow that if he was appointed an officer
of the State and prematurely     assumed that office he would have no ‘right
to compensation     prior to confirmation.
Hon. Robert    S. Calvert    Page 4 (WW-190)



            If Mr. Jackson is an employee of the State, as distinguished
from an officer,   the appropriation  is valid for he assumed his duties
as such employee on March ist, and is entitled to be paid out of the
appropriation   available to the State Retirement   System to pay for
such services,   which he has faithfully discharged   from March 1st
up to the present date.

             We have reached the conclusion  that Mr. Jackson is not an
officer of the State but an employee and that his confirmation    by the
Senate was not required and the attempt of the Legislature     to require
it is invalid and unconstitutional.

             The most recent decision by the Supreme Court on the sub-
ject and the distinction to be made between an officer and an employee
 is stated in the case of Aldine Independent School District v. Standley,
 154 Tex. 547, 280 S.W.2d 5 (8 (1958) stated in this language:

                  “We think, that the determining factor which
            distinguishes  a public officer from an employee   is
            whether any sovereign function of the government
            is conferred upon the individual to be exercised  by
            him for the benefit of the public largely independent
            of the control of others.”    (Emphasis  added)

            What separate and independent functions of the government
are conferred upon Mr. Jackson to be exercised           by him for the benefit
of the public independent of the control of the Board?         The answer is
none unless we can say that the following from the statute           (Sec. 12
Art. 2922 V.C.S.)   is all sufficient:   “he shall recommend       and nominate
to the State Board of Trustees      such actuarial    and other service   as shall
be required to transact the business      of the Retirement    System.”     This
activity is still subject to and subordinate to the Board.       Moreover,    the
above quoted Sub-sec.     (a) of Section 12 of the Statute (Art. 2922 V.C.S.)
vests the administration     and responsibility    for the proper operation of
the Retirement    System and for making effective the provision of the
law setting up the System, in the Board of Trustees.

             Mr. Jackson is at all times subject to the control and direct-
ion of the Board of Trustees     and possesses  little or no authority inde-
pendent of the Board.      The statute (Art. 2922 V.C.S.)   does not fix any
limitations   upon his tenure as Executive Secretary.      This being true,
he serves at the pleasure of the Board, whereas if he be an officer of the
State his term would be limited to filling out the unexpired term of his
predecessor.       Her term could not exceed two years by virtue of Sec.
30 of Article XVI of the Constitution of Texas which provides in part
as follows:    “The duration of all offices not fixed by this Constitution
shall never exceed two years;.     . .” He could not be removed except for
cause and then would be entitled to a trial by jury.      Knox et al v.
Johnson,    141 S.W.2d.  698 (1940 Writ Ref.)
.




    Hon. Robert   S. Calvert   Page   5   (WW-190)



           The only alternative for removal of an officer of the State
is by impeachment.    In brief if he be an officer of the State he does
not serve at the discretion   of the appointive power.  If an employee
he does.

             This brings us to the question:    Must his appointment by
the Board be submitted to and confirmed or rejected by the Senate?
If that part of the statute requiring this is valid, regardless    of
whether he is an officer or employee,      then it must be obeyed.    The
provision of the Constitution pertinent herein dealing with filling                -
vacancies    in state and district offices is Sec. 12 of Art. IV of the
                                                                                       4:
Constitution    of Texas which is as follows:

                    “Sec. 12. All vancancies       in State or district
              offices,  except members      of the Legislature,    shall
              be filled unless otherwise,      provided by law, by
              appointment of the Governor,       which appointment,
              is made during its session,      shall be with the advice
              and consent of two-thirds      of the Senate present.       If
              made during the recess of the Senate, the said ap-
              pointee, or some other person to fill such-vacancy,
              shall be nominated to the Senate during the first ten
              days of its session.    If rejected,    said office shall im-
              mediately become vacant, and the Governor shall,
              without delay, make further nominations,          until a
              confirmation    takes place.    But should there be no
              confirmation    during the session of the Senate, the
              Governor shall not thereafter       appoint any person to
              fill such vacancy who has been rejected by the Senate;
              but may appoint some other person to fill the vacancy
              until the next session of the Senate or until the regular
              election to said office, should it sooner occur.          Appoint-
              ments to vacancies     in offices elective by the people
              shall continue until the first general election thereafter.”
              (Emphasis    added)

             There is no special constitutional       provision dealing with the
Executive-Secretary      of the Teachers    Retirement     System.      Hence it is
referable   to the foregoing   provision,   if it is applicable.     It seems quite
clear to us, by the express wording of this provision            of the Constitution,
it applies only to vacancies     in State and district offices and has no appli-
cation to State employees,     regardless     of whether appointment is made
by the Governor     or by some other appointive authority under that
portion reading as follows:        “shall be filled unless otherwise provided
by law.”    The Courts have held that the next proceeding            provision ap-
plies to appointlve authority and not to the provision requiring confir-
mation or rejection by the Senate.        In other words this provision per-
mits the filling of vacancies     in state offices by other authorities       than
Hon. Robert   S. Calvert   Page   6   (WW-190)




the Governor;   but it does not follow that such appoinhents’tiust    becon-
firmed by the Senate.    This is the express holding in case of Denison
V. State, 61 S.W. 2d 1017 (1933 Error ref.) expressed    in the following
language:

                  “We think the language of section 12, art. 4,
            of the Constitution   is plain, clear unambiguous,
             and capable of but one construction.      That the
            clause ‘unless otherwise provided by law’ refers
            to the nominating authority, and has no reference
            to ‘the advice and consent of two-thirds      of the
           senate present.’     This language clearly contem-
           plates that the Legislature      may, should it see fit,
           provide by law for the filling of offices created by
             it otherwise’than   by appointmenme           Governor,
           and that in such event confirmation       by the Senate
            is notessential.”     (Emphasis    added)

            The power of confirmation   by the Senate is not Legislative
but Executive.   The Supreme Court has so held in the case of Walker
v. Baker,   145 Tex. 121, 196 S.W. 2d 324 (1946) as follows:

                 “Confirmation    or rejection   of the Governor’s
           appointments    is an executive function expressly
           delegated to the Senate.      Denison v. State, Tex. Civ.
           App., 61 S.W. 2d 1017, error refused.       To that extent
           it represents   a permitted invasion by one branch of
           the Legislature    of that field of power which is confided
           to the executive department       by Art. II, Sec. 1, of the
           Constitution.”

            Sec. 12 of Art. IV of the Constitution of Texas  conferring
this limited executive power upon the Senate constitutes an exception
to Sec. 1 of Art. II of the Constitution of Texas, which is as follows:

                 “Section 1. The powers of the Government          of
           the State of Texas shall be divided into three dis-
           tinct departments,   each of which shall be confided to
           a separate body of magistracy,       towit: Those which
           are Legislative   to one; those which are Executive        to
           another, and those whichare      Judicial to another; and
           no person, or collection    of persons,    being of one of
           these departments,    shall exercise    any power properly
           attached to either of the others, except in the instances
           herein expressly    permitted.”     (Emphasis    added)

            If Mr. Jackson is an officer of the State he was appointed
by the proper authority,  and the statutory requirement    of submission
of his appointment to the Senate for confirmation    or rejection we as-
. .*.   .




    Hon. Robert   S. Calvert   Page   7 (WW-190)



    sume    for the purpose of this opinion is valid.  But it seems quite
    clear to us that if Mr. Jackson is an employee as distinguished
    from an officer of the State that Sec. 12 of Art. IV of the Constitu-
    tion of Texas affords no constitutional    basis for Senate action upon
    his appointment for the simple reason that State employees         are not
    covered by that section of the Constitution or any other insofar as
    confirmation    or rejection of the appointment is concerned.      Sec. 12
    of Art. IV of the Constitution   of Texas may not be enlarged to embrace
    employees     when they are not covered by it and any legislative     attempt
    to invoke the action of the Senate by confirmation     or rejection as to
    employees     would be a clear violation of Sec. 1 of Art. II in that the
    Senate would be discharging     executive functions clearly forbidden
    by that section.   Walker vs. Baker, 145 Tex. 121, 196 S.W. 2d 324
    (1946).   What was said by the Supreme Court in an early case,
    Houston Tap & B.R. Company vs. Randolph, 24 Tex. 317 is appro-
    pr iate here .

                    “‘The second article of the constitution provides
               that ‘the powers of the government       of the State of
               Texas,   shall be divided into three distinct depart-
               ments, and each of them be confined to a separate
               body of magistracy,      towit, those which are legisia-
               tiRre to one, those which are executive to another,
               and those which are judicial to another; and no person
               or collection of persons, being of one of these depart-
               ments shall exercise      any power, properly attached to
               either of the others, except in the instances herein ex-
               pressly permitted.     0. & W. Dig. 14. Here is a direct
               prohibition of the blending of the departments.        It con-
               templates   that the persons employed in each depart-
               ment, will be wise enough, and honest enough, to dis-
               charge the duties intrusted to them, without the aid
               or interference    of the others.   And it is a full warrant
               for each department to disregard       and repel such
               volunteer and unauthorized aid and interference.          For
               as before said, each one of these departments        acts
               under a delegated limited authority, and if one exceeds
               its authority, by usurping powers not belonging to it,
               its act is a nullity, not binding upon the other depart-
               ments, and may be totally disregarded        by them.”

                We do not mean to imply that the position of the Executive-
   Secretary    of the Teachers   Retirement  System is not an important
   position; indeed it is. It is one of honor and trust and, of course, of
   emolument,     but it does not rise to the stature of an officer of the
   state in any sense in which confirmation      by the Senate could be
   constitutionally   required.
Hon. Robert    S. Calvert    Page 8   (WW-190)




            We, therefore,   hold that Mr. Jackson is not a State Officer
but an employee and that the statutory     provision requiring the suc-
mission of his appointment by the Board to the Senate for confirma-
tion is void and unconstitutional   in that it violates Sec. 1 of Art. II
of the Constitution of Texas, which says “and no person or collection!       :
of persons being of one of the departments       shall exercise  any power
properly attached to either of the others”.

            Mr. Jackson’s   appointment has been valid from its inception
and he is entitled to his salary for the period of time it has been with-
held from him and you have the authority to issue a warrant pursuant
to the appropriation  made by the Legislature   to pay the same.


                                SUMMARY

            The appointment of a state employee as distin-
            guished from an officer of the state does not
            require confirmation     by the Senate under Sec.
            12 of Art. IV of the Constitution of Texas and
            an Act of the Legislature    requiring such confir-
            mation is invalid and unconstitutional.     A state
            employee    is entitled to receive his salary from
            inception of his appointment regardless      of any
            statutory  requirement    for confirmation.

                                        Very~ truly yours,

                                        WILL WILSON
                                        Attorney General     of Texas




                                            Ass is tant
LPL/fb

APPROVED:

QPINION     COMMIT:TEE:‘.:

H. GradyCChZuldler,     Chairman

 Ci.1.:. Richards

 Marvin   Thomas

  John Lennan
