Untitled Texas Attorney General Opinion

Honorable Penn J., Jackson Opinion No. WW-324 Chairman, State Board of Insurance Austin, Texas Re: Questions concern- ing the constltu- tlonallty of con- firmation by the Senate of the State of Texas of the appointment of the Commissioner of In- surance by the State Dear Judge Jackson: Board of Insuranoe. You have requested an opinion on the folldwlng questions: 1. Is the appointment of a Commissioner of Insurance by the State Board of Insurance subject to “the advice and consent of the Senate of Texas”, or ls’such a provision calling for confirmation by the Senate unconstitutional? 2. Assuming that confirmation by the Senate Is valid, Is a simple majority vote of the members of the Senate present and voting sufficient for con- firmation of the Commissioner of Insurance, and, If not, what percentage of vote Is necessary?

3. Assumln& that In the above two questions It Is held that confirmation by the Senate Is necessary and that the appointee has not received the requisite number of votes as determined In your second answer, thereby causing the rejection of the appointment, may the appointee hold offloe until his successor has been appointed and qualified In accordance with Article XVI, Section 17, of the Texas Constitution? May I state at the beginning that the above questions that you have requested an opinion on are questions of first ,lmpresslon‘and have never been passed on or determln- ed by a Texas Court. Furthermore, there are few Texas cases which have dealt either directly or indirectly with the

-Hon. Penn J. Jackson, Page 2 (WW-324)

subject that you have presented for consideration. ‘With this statement In mind and In reply to your request, I submit the following information: Article II, Section 1, of the Constitution Of the State of Texas provides that: “The powers of the government of the State of Texas shall be divided Into three dlstlnet department 8, each of which shall be confided to a separate body of maglstraoW, 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 colleo- tion of persons, being of one of theee depart- ments, ahall exercise any power properly attaohed to either of the others, except in the instances herein expressly permitted. ” (emphasis addea) The above Artlole Is oommonly referred to as the dlstributlng of power clause of the Texas Constitution. It expresses the fundamental principle of American and Texas government, the Doctrine of Separation of Powers. By ex- press words the Article divides and distributes the powers of the Texas government Into three distinct departments: the legislative, executive, and judicial. Article II further expresses this principle when it states that “no person or collection of persons, being of one of these departmente, shall exercise any power properly attached to either of the _ _ others, exoept In the lns%an<es herein expressly permitted.” (emDhasls added): so It mas be stated then that Article fl. $e&& l,~dlvi&s and distributes the powers of the govern- ment into three distinct departments and prohibits one department from exercising power that by Its nature belongs to another deDartment, except In Instances where the Con-

Referring to Article II, Section 1, one writer has aptly and, we think, correctly stated: l’Th~s, It la not exactly correct to state the principle of separation of powers as absolutely prohlbltlng performance by one department of aots which by their essential nature belong to another. Rather, the correct statement is that a department may constitutionally exercise any power whatever its essential nature, which has, by ths oonstitu- tion, been delegated to It; but that AC:-may not

Hon. Penn J. Jaokson, Page 3 (W-324)

exercise powers not so oon~titutlonilly granted which from their essential nature do not fall wfth- In Its division of govertanental functions.” Vernon’s Ann. Tex. Const. Art. 2, sec. 1, Interpretive Commentary, Vol. 1, p. 525.

Thus, considering the above Article and propo6itIon6, and in order to answer the first queattion, It Is neee66q to detenrlne the nature of the governmentu power oonferred upon the Senate and to detemalne If the~Con6tItuflan h66 graatdd 6uch power to the Senate. Article 1.09, Se&Ion (a), of the Insur- ance Code provides: “The Boati, shall appoint a Coml66lotrer OS Insurance, by and with the advice and oonsent of the Senate of Texas, who shall be its ohlef executive and admlnlstratlve officer, who shall be oharged tith the primary responslblllty of admlnlatering, enforaing, and oarrylng out the provisions of the In6ur6noe Code under the supervision of the Board. He shall hold his position at the pleasure of the Board and may be dis- oharged any time. ”

. . . ._ The . . Texas Supreme . . Court. has . stated 1 _ that . under . out 6)ciwtxon acne power Go maxe appoincJnents is exeouti$e 6na not leg1slatlve. State v. Man 118 Tex. 449, 16 S.V.2d 609. The Surmeme Court so de8lared that the confinutldn or-rejection of appointees to ublio office lo an executive ‘0,. runotion. Walker v. Baker, 19g S.W.2d 324. While there w be lnstanoee In uhloh the powers of appointment and oonfirma- tion are properly exercisable by the le~l~latlve braaoh as an adjunct to Its legislative power, we think It is olear that the power to confirm or reject the appointment of offioer8 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 provlalon in the Conatltu- tion whIoh expressly permits such delegation of power. Article IV, Seotlon 12, of the Tex6s Conrtltntlon provideo: “All vaoanolee In State or distriot offioer, except memberr of the Legislature, rhall be Tilled, unless otherwise provided by law, by appointamt or the Governor, whioh appointment, if mad6 ~duriag, itn seasion, 6hall:.be with the advice and conrmt 0r two thirds 0r the Senate present. xi tide during the reoeaa of the SeMte, the said appointee, or

. Hon. Penn J. Jackson, Page 4 (G-324)

some other person to fill. such vacancy., shall, ,, ,.,,, be nominated to the Sbna$e~du?lng, thg. first : .; ‘, ten days~,of its ‘seMion. If rqj+ted, said office shall Immediately become vacant, and the,,, Governor shall, without delay, make ~furthernom- ” lnatlons until a confirmation takes place. But should there be no confirmation during the session of the Senate; the Governor shall not, ther,eafter appoint any,person to fQl such vacancy who has been rejected,by the Senate, but may appoint some other’person to fill, the vacancy until the next sessldn of the Senate or until the regular elec- tion to said office, should It sooner occur. Appointments to vacancies In offices elective by the people shall only continue until the first general election thereafter.” The above, Article expressly places, the executive function of appqlntlng State and district offlaes ‘in, the Governor,, unless oth,erwlse provided by law. The Article, ,, by granting to the Senate the power to confiIln or reject appointments when made by the Governor, has also provided that the executive power of appointing such dfflclals shall be shared with the Senate. This grant of a non-leglslatlve power to the Senat,6,‘ls an instance’ln which one department of the governmer$.exerclses a power that 1s “properly attadhed” to anoth’er ‘department. Such exercise of a non- leglslatl~~ power by the Senate 18.&n instance that IS “expressly permlt$ed” by the Texas “Constitution. It Is to be not&d, however, that the appointment In queetion id not one made by the Governor , ,nhlch, the Cbnstltutlon expm permits the Senate to conflim, but the appointment in question is one that Is made by.the Texas Insurance Board, an administrative agency. Article IV, Section 12, does not expressly grant aut~horlty to the Senate to ,,conflrm an appolnt- ment made by a source other than the Governor unless the phrase in Article IV, Section’ 12, “unless otherwise ,$ro- vlded by law” can be held $6 grant to the Senate such ex- press authority. Examining the wording of Article IV, Section 12, It Is noted that Article IV, Section 12, reads “which appolnt- ment . shall be with the advice and consent of two-thirds of the’ Sinate present. ” The use of the words “which appoint- ment” has a definite meaning. It Is a well-knoom,rule both- of statutory construotlon and’of English grammar that the use of such, words 8,s “which,“’ ~suqh,,” etc.#: in connection with a subject, refers dlrec,tly back,to’the immediately pre- ceding subject matter. Pet%tileum Casualty Company v.

Hon. Penn J. Jabkson, Page 5 (VW-3241

nllliams, 15 S.W.2d 553; State v. Hou8tOn 011 COmpiny, .“_ 194 s . w . 422; 39 Tex.Jur. 193. The lmmedlately pr&Oediiig s6bject matter in this Article Is the “appolntmbmt of the- Governor. ” Therefore, It Is reasonable to hold that the phrase “shall be with the advice and oonsent of the Senate” refers only to appointments made by the Clovernor. In the case of Denleon v. State, 61 S.W.&d 1017, error refuead, 61 S.W.2d 1022, the court stated that Seotlon 12 of~lhhiole IV of the Constitution .is plain, alear, unamblguoulr, and oapable of but one construction and that the clause “unless otherwise provided by law” refers to the nominating aathorlty and has non reference~to the advloe and oons$nt of two-hhlrdr- of the S%ate present. The oourt said: “We think the language of seotlon 12, art. &,,of the Constitution Is plain, clear, unambiguous, and capable of btit one oonstruo- Mon. That the olause ‘unless otherrolse pro- vided by law’ refers to the nominating authority, and ha8 no reference to ‘the advloe and consent of two-thirds of the senate present.1 Thlfa lan- guage clearly contemplates that the Legislature may, ehould It see fit, provide by law for the filling of offices oreated by It otherwise than by appointment by the Oovernor, and that In suoh event confirmation by the Senate Is not esBentlal.lt 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-leglr- latlve power of confirming an appointment made by a Bouroe other than the Governor. Upon further examination of the Constitution we find that there IB no general provision uhloh expressly permits the Senate to confirm appolntmente to a pub110 offloe made by a souroe other than the @overnor. On the contrary, In Instances where the Senate has been granted the authority to confirm or reject appointmenta made by a souroe other than the Governor, eubh authority has been sp~olfloally and ex- pressly granted In the Constitution. ?iB one .exBmple, oonrrlder the movislons for the Board of Pardons and Paroles whloh is a8 fiiiOWB1 1, . . . One member of said board shall be appointed by the Governor, one member by the Chief Justice of the,SuFeme Court of the St&e of Texas and one member by the presiding Justioe of the Court of C,rlmlnal Appeals; the appointments

. . . Hon. Penn J. Jackson, Page 6 (W-32$,)

of all members of said board shall be made with the advlc,e and consent of two thirds of the Senate present.” (Article IV, Section 11, Board of Pardons and Paroles) The above Article, by apelUng out the power of the Senate to confirm appointments made by a souroe other than the Governor, seems to bear out the fact that the framers of the Constitution recognized and followed the principle stated In Article II, Section 1, that no depart- ment shall exercise powers that are properly attached to another department unless the Constitution expressly per- mits such exercise of power. Therefore, beoause the confirmation and rejection of the appointment of the Insuranoe CommlBsloner le a non- legislative power, and al:ch grant of power to the Senate Is not expressly permitted by the Constitution of Texas, the conferring to the Senate of this power by Article 1.09, Seotlon (a), of the Insurance Code la In violation of Article II, Section 1, of the Texas Constitution and Is therefore unconstitutional. Because we are of the opinion that confirmation of the appointment of the Insurance Commissioner by the Senate IB unconstitutional, there Is no necessity to answer the seoond and third questions of your request.

SUMMARY The provision of Article 1.09, Section (a), of the Insurance Code which provides that the appointment of the Insurance Commissioner by the Insurance Board shall be confirmed by the Senate Is In violation of Article II, Section 1, of the Constitution of Texas and Is therefore unoonstltu- tional .

APPROVED: Yours very truly,

OPINIOI?CObMIlTREr WILL WILSON, Geo. P. Blaokburn, Chairman Attorney General of Texan John Webster C. K. Rlahards Mary K. Wall By &d&A Rlohard B. Stone Fi&VIEWED FOR THE ATTORNEY GYNEKAL Adsistant : Wm. V, Geppert