Honorable Penn J., Jackson Opinion No. WW-324 

Chairman, State Board of Insurance 

Austin, Texas Re: Questions concerning the constltutlonallty of confirmation by the 

Senate of the State 

of Texas of the 

appointment of the 

Commissioner of Insurance by the State 

Dear Judge Jackson: Board of Insuranoe. 

questions: 

You have requested an opinion on the folldwlng 

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 confirmation 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 determlned 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 

this statement In mind and In reply 

submit the following information: 

Article II, Section 1, of 

the State of Texas provides that: 

consideration. ‘With 

to your request, I 

the Constitution Of 

“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 colleotion of persons, being of one of theee departments, 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 express 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 government into three distinct departments and prohibits one 

department from exercising power that by Its nature belongs 

to another deDartment, except In Instances where the ConReferring 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 oonstitution, 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 wfthIn 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 Insurance 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 disoharged any time. ” 

The Texas Supreme Court has stated that under out 

. . . ._ . . . . . . 1 _ . . 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, 19 g S.W.2d 324. While there w 

be lnstanoee In uhloh the powers of appointment and oonfirmation 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 Conatltution 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 election 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 nonleglslatl~~ 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 appolntment made by a source other than the Governor unless the 

phrase in Article IV, Section’ 12, “unless otherwise ,$rovlded by law” can be held $6 grant to the Senate such express authority. 

Examining the wording of Article IV, Section 12, 

It Is noted that Article IV, Section 12, reads “which appolntment . shall be with the advice and consent of two-thirds 

of the’ Sinate present. ” The use of the words “which appointment” has a definite meaning. It Is a well-knoom,rule bothof 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 preceding 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 theGovernor. ” 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-hhlrdrof 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 oonstruoMon. That the olause ‘unless otherrolse provided 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 language 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-leglrlatlve 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 expressly granted In the Constitution. ?i B 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 department shall exercise powers that are properly attached to 

another department unless the Constitution expressly permits such exercise of power. 

Therefore, beoause the confirmation and rejection 

of the appointment of the Insuranoe CommlBsloner le a nonlegislative 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 unoonstltutional . 

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