                                               The Attorney          General of Texas
                                                                August 16, 1983
     JIM MATTOX
     Attorney General


                                             Honorable Ed Howard                    opinion No.    JM-58
     Suxeme       Court Buildina
     P. 6. Box 12540             -
                                             Chairman
     Austin. TX. 76711. 2546                 Subcommittee on Nominations            Re:   senate    confirmation of
     5121475-2501                            Texas State Senate                     agency heads
     Telex    9101674-1367                   P. 0. Box 12068, Capitol Station
     Telecopier     5121475-0266
                                             Austin, Texas   78711

     1607 Main St., Suite 1400               Dear Senator Howard:
     Dallas,   TX. 75201-4709
     2141742.6944                                You ask us:

     4624 Alberta      Ave.. Suite     160
                                                      May the legislature require senate confirmation
     El Paso, TX.      79905-2793                     for heads of agencies of the executive branch of
     9151533-3464                                     government created by statute?
,-
                                             You do not indicate about which agencies you are concerned, nor do you
      ,220 Dallas Ave.. suite 202
     Houston.     TX. 77002-6986             indicate whether those "heads of agencies" are officers or employees.
     7131650-0666                            You do indicate that you are concerned only about heads of agencies in
                                             the executive department created by statute who are not appointed by
                                             the governor. Since you raise no question concerning district or
     606 Broadway,         Suite 312
                                             local officers, no discussion touching them is necessary. We conclude
     Lubbock,  TX.       79401.3479
     6061747-5236
                                             that article IV, section 12 of the Texas Constitution clearly empowers
                                             the senate to confirm the appointment of heads of agencies in the
                                             executive department who occupy state offices appointed by the
     4309 N. Tenth. Suite 6                  governor. However, any attempt by the legislature to require senate
     McNen.   TX. 76501-1665
                                             confirmation of heads of agencies in the executive department who are
     5121662-4547
                                             employees or who are officers appointed by persons other than the
                                             governor would violate article II, section 1 of the Texas
     200 Main Plaza. Suite 400               Constitution, the so-called "separation of powers" provision.
     San Antonio.  TX. 76205-2797
     5121225-4191
                                                  Article IV, section 12 of the Texas Constitution provides in
                                             pertinent part:
     An Equak       Opportunity1
     Affirmative      Action    Employer               All vacancies 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, if made during its
                                                       SW-SiOll, shall be with the advice and consent of
                                                       two-thirds of the Senate present.

                                                  Article II, section 1 of the Texas Constitution sets forth the
                                             following:
Honorable Ed Howard - Page 2   (JM-58)




          Section 1. The powers of the Government of the
          State of Texas shall be divided into three
          distinct departments, each of which shall be
          confided to a separate body of magistracy, to wit:
          Those which are Legislative 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 departments,
          shall exercise any power properly attached to
          either of the others, except in the instances
          herein expressly permitted. (Emphasis added).

     We note at the outset the generally limited nature of the
governmental power conferred upon the senate. The power to make
appointments is executive and not legislative. State v. Manry, 16
S.W.2d 809, 813 (Tex. 1929). The confirmation power exercised by the
senate is not a leeislative oower. but rather an exnresslv delegated
executive power. Walker v. 'Baker; 196 S.W.2d 324, '328 (Tex. 1946);
Denison v. State, 61 S.W.2d 1017, 1021 (Tex. Civ. App. - Austin), writ
ref'd.           1022 (Tex. 1933).

         To that extent it [i.e. the power to confirm or
         reject gubernatorial appointments] 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.          Under those
         circumstances there is no ground for relator's
         contention that the power asserted in this case
         exists because not expressly prohibited. It being
         a power ordinarily and intrinsically belonging to
         another department of the government, . . . and
         the means and time for its exercise being provided
         in Art. III, Sec. 5, supra, no other or different
         means can be implied . . . .     In other words,
         since the Constitution specifies the circumstances
         under which the Senate may defeat the Governor's
         appointments, there is an implied prohibition
         against    its    power    to   add     to    those
         circumstances . . . . "The declaration (of Art.
         II, SW.   1) is that the executive, legislative,
         and judicial departments shall exist, -- this is
         the fiat of the people, -- and neither one nor all
         of the departments so created can enlarge,
         restrict or destroy the powers of any one of them,
         except as the power to do so may be expressly
         given by the constitution." (Emphasis added).

Walker v. Baker, sup+a. at 328.




                                  p. 246
Honorable Ed Howard - Page 3   (~~-58)




     Logically only four possible situations give rise to questions
concerning the senate's confirmation power of heads of agencies in the
executive department under the Texas Constitution.          The first
situation involves an officer who is a state or district officer, and
who is appointed by the governor. The second situation involves
someone who is -
               not a state or district officer and who is appointed by
the governor. Because you ask about someone who is not appointed by
the governor, we need not address these situations. The third
situation involves someone who is a state or district officer but who
is not appointed by the governor. The fourth situation involves
someone who is not a state officer and who is not appointed by the
governor. The third and fourth situations are the ones which we shall
discuss.

     The third situation involves state officers in the executive
department -not appointed by the governor.      In the absence of a
constitutional provision to the contrary, the legislature can provide
for means of appointment other than by the governor. Denison v.
State, supra, at 1020. _See Attorney General Opinion V-1132 (1950)
(legislature provided that appointment to vacancy on Texas Citrus
Commission to be by quorum of remaining members of commission).

     Any attempt by the legislature to require senate confirmation of
a state officer in the executive department appointed by someone other
than the governor is, however, unconstitutional. In Attorney General
Opinion WW-324 (1957). this office concluded that a statute which
required senate confirmation of a commissioner of insurance who is
appointed by the State Board of Insurance violated article II, section
1 of the Texas Constitution. the "senaration-of-vowers" orovision. and
was therefore unconstitutional. Reiying on Waiker v. 'Baker, &,
the opinion declared:

         While there may be instances in which the powers
         of appointment and confirmation are properly
         exercisable by the legislative branch as an
         adjunct to its legislative power, we think it is
         clear that the power to confirm or reject the
         appointment of officers attached to some other
         branch of government is executive in nature and is
         a non-legislative power. Therefore, in order for
         the Legislature to confer this non-legislative
         power upon the Texas Senate, there must be some
         provision in the Constitution which expressly
         permits such delegation of power.

Attorney General Opinion WW-324 (1957). The opinion noted that while
article IV, section 12 expressly delegates such a power, it appertains
only when the appointment in question is one made by the governor, not
one that is made by an administrative agency. This office then
concluded that there is no general provision which expressly permits




                               p. 247
Honorable Ed Howard - Page 4   (JM-58)


                                                                         ?



senate confirmation of an appointment made to the executive department
other than by the governor, and that any instances in which the senate
has been granted authority to confirm such appointments have been
specifically and expressly granted in the constitution. See, e.g.,
Tex. Const. art. IV, §ll (concerning appointment to Board of Pardons
and Paroles).

     It has been suggested that Attorney General Opinion WW-324 (1957)
relies on mere dicta from Walker v. Baker in reaching its conclusion.
We agree that the issue in the Walker case was whether the senate
could lawfully convene of its own motion to consider recess
appointments made by the governor, not whether the legislature could
require senate confirmation of state or district officers in the
executive department appointed by someone other than the governor.
However, we decline to characterize the court's discussion as mere
dicta for two reasons. First, the extensive discussion in the Walker
case is the only instance in which the Texas Supreme Court has
discussed this specific issue. It affords us the only guidance that
we have. Second, the proposition set forth in the Walker case as to
the limited nature of the senate's confirmation power is in accord
with the rule of law in other jurisdictions. See, e.g. Myers v.
United States, 272 U.S. 56 (1926); Bradner v. Hammond, 553 P.2d 1
(Alaska 1976); Wittler v. Baumgartner, 144 N.W.2d 62 (Neb. 1966);
Tucker v. State, 35 N.E.2d 270 (Indiana 1941); State v. Dowling, 120
So. 593 (La. 1928); People v. Shawver, 222 P. 11 (Wyo. 1924).

     It has further been suggested that the legislature m=y
inherently, by means of enabling legislation, reserve to itself the
power of confirmation or rejection of appointments to an office in the
executive department not a state or district office. Simply put, the
argument is that, if the legislature has the power to create the
office or agency, it is concomitantly empowered to create the means of
filling it. We disagree.

     This office considered such an argument in Attorney General
Opinion WW-324 (1957) and explicitly rejected it.         Because the
discussion is particularly apposite, we quote it in extenso:

             Examining the wording of Article IV, Section
          12, it is noted that Article IV, Section 12, reads
          "which appointment . . . shall be with the advice
         .and consent of two-thirds of the Senate present."
          The use of the words "which appointment" has a
          definite meaning. It is a well-known rule both of
          statutory construction and of English grammsr that
          the use of such words as "which," "such," etc., in
          connection with a subject, refers directly back to
          the   immediately   preceding    subject   matter.
          Petroleum Casualty Company v. Williams, 15 S.W.2d
          553; State v. Houston Oil Company, 194 S.W. 422;



                                  p. 248
Honorable Ed Howard - Page 5   (JM-58)




         39 Tex. Jur. 195.      The immediately preceding
         subject matter in this Article is the "appointment
         of the Governor." Therefore, it is reasonable to
         hold that the phrase "shall be with the advice and
         consent of the Senate" refers only to appointments
         made by the Governor. In the case of Denison v.
         State, 61 S.W.2d 1017, error refused, 61 S.W.2d
         1022, the court stated that Section 12 of Article
         IV   of   the   Constitution is    plain,   clear,
         unambiguous, and capable of but one construction
         and 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. The court said:

                 "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
              contemplates that the Legislature may,
              should it see fit, provide by law for
              the filling of offices created by it
              otherwise than by appointment by the
              Governor, and that in such event
              confirmation by the Senate is not
              essential."

            It is, therefore, our opinion that the phrase
         "unless otherwise provided by law" does not grant
         to the Legislature a right to confer upon the
         Senate the non-legislative power of confirming an
         appointment made by a source other than the
         Governor.

     We reaffirm the rationale and conclusion of Attorney General
Opinion WW-324 (1957) with respect to this issue and conclude that any
attempt by the legislature to require senate confirmation of heads of
agencies in the executive department who are appointed other than by
the governor is an impermissible violation of article II, section 1 of
the Texas Constitution.

     The final situation giving rise to questions regarding the scope
of the senate's confirmation authority involves persons who are not
state officers in the executive department, but rather state
employees. In WW-190 (1957), this office considered, inter alla, the



                                p. 249
Honorable Ed Howard - Page 6   (JM-58)




constitutionality of a statute which required the secretary-director
of the Teachers Retirement System to be confirmed by the senate. The
secretary-director was appointed by the board of trustees of the
system. The opinion concluded that the secretary-director was an
employee, not an officer, for which no confirmation by the senate is
necessary, and that, moreover, any attempt by the legislature to
require such confirmation was invalid and unconstitutional.

          It seems quite clear to us, by the express wording
          of this provision of the Constitution [art. IV,
          sec. 121, it applies only to vacancies in State
          and district offices and has no application to
          State employees, regardless of whether appointment
          is made by the Governor or by some other
          appointive authority under that portion reading as
          follo"s:   "shall be filled unless otherwise
          provided by law."

Relying on Walker v. Baker, E,         Denison v. State, w,        and
article II, section 1 of the Texas Constitution, this office declared:

          Sec. 12 of Art. IV of the Constitution 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 =*y 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. (Emphasis added).

We find the reasoning of Attorney General Opinion WW-190        (1957)
compelling and confirm again its conclusion.

     It is a generally recognized principle of constitutional law that
where a power is expressly given by the constitution and the means by
or the manner in which it is to be exercised is prescribed, such means
or manner is exclusive of all others. Walker vi Baker, supra at 327;
Parks v. West, 111 S.W. 726, 727 (Tex. 1908); White v. State, 440
S.W.2d 660, 665 (Tex. Crim. APP. 1969).          Moreover, when the
constitution defines the circumstances under which a right may be
exercised, the specification is an implied prohibition against
legislative interference to add to the condition. Walker v. Baker,
supra at 327; Ferguson v. Wilcox, 28 S.W.2d 526, 531 (Tex. 1930);



                               p. 250
Honorable Ed Howard - Page 7    (JM-58)




Arnold v. Leonard, 273 S.W. 799, 802 (Tex. 1925); Lytle V. Halff, 12
S.W. 610, 612 (Tex. 1889). In order that the senate's confirmation
power come into play under article IV, section 12 of the Texas
Constitution, two conditions precedent must be met: first, that the
person appointed must be appointed to a state or district office in
the executive department; and second, that the person be appointed by
the governor.

                               SUMMARY

            Article   IV,   section   12  of   the   Texas
         Constitution empowers the senate to confirm or
         reject the appointments by the governor of heads
         of agencies in the executive branch who are state
         officers.   Any   attempt by    the legislature,
         however, to enlarge such power by extending it to
         include heads of agencies in the executive branch
         who are employees, who are not state or district
         officers, or who are state or district officers
         not appointed by the governor, constitutes an
         impermissible violation of article II, section 1




                                     Jk
         of the Texas Constitution.

                                          Very trul   y   r



                                          JIM     MATTOX
                                          Attorney General of Texas

TOM GREEN
First Assistant Attorney General

DAVID R. RICHARDS
Executive Assistant Attorney General

Prepared by Jim Moellinger
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Rick Gilpin, Acting Chairman
Jon Bible
Susan Garrison
George Gray
Jim Moellinger
Nancy Sutton




                                   p. 251
