Honorable PennJ., 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: Youhave 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 andvoting sufficient for confirmation of the Commissioner of Insurance, and, If not, what percentage of vote Is necessary?
3. Assumln&that In the above twoquestions It Is held that confirmation by the Senate Is necessary and that the appointee has not received the requisite numberof votes as determined In your second answer, thereby causing the rejection of the appointment, maythe appointee hold offloe until his successor has been appointed andqualified In accordance with Article XVI, Section 17, of the Texas Constitution? MayI 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. PennJ. Jackson, Page 2 (WW-324)

subject that you have presented for this statement In mind andIn 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 department8, 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; andnoperson, or colleotion of persons, being of one of theee departments, ahall exercise anypower properly attaohed to either of the others, except in the instances herein expressly permitted. ” (emphasis addea) Theabove Artlole Is oommonlyreferred to as the dlstributlng of power clause of the Texas Constitution. It expresses the fundamental principle of American andTexas government, the Doctrine of Separation of Powers. Byexpress words the Article divides anddistributes the powers of the Texas government Into three distinct departments: the legislative, executive, andjudicial. Article II further expresses this principle whenit 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 masbe stated then that Article fl. $e&& l,~dlvi&s and distributes the powers of the government into three distinct departments andprohibits 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, wethink, 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 mayconstitutionally exercise any power whatever its essential nature, which has, by ths oonstitution, been delegated to It; but that AC:-maynotHon. 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 andpropo6itIon6, 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 Codeprovides:

“The Boati, shall appoint a Coml66lotrer OS Insurance, by andwith the advice and oonsent of the Senate of Texas, whoshall be its ohlef executive and admlnlstratlve officer, whoshall be oharged tith the primary responslblllty of admlnlatering, enforaing, and oarrylng out the provisions of the **In6ur6noe Code**  under the supervision of the Board. Heshall hold his position at the pleasure of the Board andmaybe disoharged any time. ” TheTexas SupremeCourt has stated that under out

... ._ .. . . . . 1

_ .. 6)ciwtxon acnepower GomaxeappoincJnents is exeouti$e 6na **not** leg1slatlve. State v. Man 118Tex. **449, 16** S.V.2d 609. The SurmemeCourt so de8lared that the confinutldn or-rejection of appointees to ublio office lo an executive ‘0,. runotion. Walker v. Baker, g 19 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, wethink It is olear that the power to confirm or reject the appointment of offioer8 attached to someother 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 someprovlalon 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 twothirds 

### 0r the Senate present. 

### xitide during the reoeaa of the SeMte, the said appointee, or.

Hon. PennJ. Jackson, Page 4 (G-324)

someother person to fill. such vacancy., shall, be nominated to the Sbna$e~du?lng, thg.first : .; ‘, ,,,.,,, ten days~,of its ‘seMion. If rqj+ted, said office shall Immediately become vacant, andthe,,, Governor shall, without delay, make~furthernom- ” lnatlons until a confirmation takes place. But should there be no confirmation during the session of the Senate; the Governor shall not,ther,eafter appoint any,person to fQl such vacancy whohas been rejected,by the Senate, but mayappoint some other’person to fill, the vacancy until the next sessldn of the Senate or until the regular election to said office, should It sooner occur. Appointments to vacancies In offices elective by the people shall only continue until the first general election thereafter.” The above,Article expressly places, the executive function of appqlntlng State anddistrict offlaes ‘in, the Governor,, unless oth,erwlse provided by law. The Article,
,, by granting to the Senate the power to confiIln or reject appointments whenmadeby the Governor, has also provided that the executive power of appointing such dfflclals shall be shared with the Senate. This grant of a non-leglslatlve power to the Senat,6,‘ls an instance’ln which one department of the governmer$.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$ed” by the Texas “Constitution. It Is to be not&d, however, that the appointment In queetion id not one madeby the Governor, ,nhlch, the Cbnstltutlon expm permits the Senate to conflim, but the appointment in question is one that Is madeby.the Texas Insurance Board, an administrative agency. Article IV, Section 12, does not expressly grant aut~horlty to the Senate to ,,conflrm an appolntmentmadeby a source other than the Governor unless the phrase in Article IV, Section’ 12, “unless otherwise ,$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. ” Theuse of the words “which appointment” has a definite meaning. It Is awell-knoom,rule bothof statutory construotlon and’of English grammarthat 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%tileumCasualty Companyv.Hon. PennJ. Jabkson, Page 

### 5 (VW-3241

nllliams, 

### 15S.W.2d 

### 553;State v. Hou8tOn011 COmpiny,

.“

_ 194 s w

. . 422; 39Tex.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 madeby the Clovernor. In the case of Denleon v. State, 

### 61S.W.&d 1017, error refuead, 61 S.W.2d 1022, the court stated that Seotlon 12 of~lhhiole IVof the Constitution .is plain, alear, unamblguoulr, and oapable of but one construction andthat the clause “unless otherwise provided by law” refers to the nominating aathorlty andhas nonreference~to the advloe and oons$nt of two-hhlrdrof the S%ate present. The oourt said:

“Wethink 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, andha8 no reference to ‘the advloe and consent of two-thirds of the senate present.1 Thlfalanguage 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, andthat 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 madeby a Bouroe other than the Governor.

Uponfurther examination of the Constitution we find that there IB no general provision uhloh expressly permits the Senate to confirm appolntmente to a pub110 offloe madeby a souroe other than the @overnor. Onthe contrary, In Instances where the Senate has been granted the authority to confirm or reject appointmenta madeby a souroe other than the Governor, eubh authority has been sp~olfloally and expressly granted In the Constitution. ?i Bone .exBmple, oonrrlder the movislons for the Board of Pardons and Paroles whloh is a8 fiiiOWB1

1,

. . . Onememberof said board shall be appointed by the Governor, one memberby the Chief Justice of the,SuFeme Court of the St&e of Texas andone memberby the presiding Justioe of the Court of C,rlmlnal Appeals; the appointments. . .

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

of all membersof said board shall be made with the advlc,e andconsent of twothirds of the Senate present.” (Article IV, Section 11, Board of Pardons and Paroles) Theabove Article, by apelUng out the power of the Senate to confirm appointments madeby a souroe other than the Governor, seems to bear out the fact that the framers of the Constitution recognized andfollowed the principle stated In Article II, Section 1, that nodepartment shall exercise powers that are properly attached to another department unless the Constitution expressly permits such exercise of power.

Therefore, beoause the confirmation andrejection 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 Codela In violation of Article II, Section 1, of the Texas Constitution and Is therefore unconstitutional.

Because weare of the opinion that confirmation of the appointment of the Insurance Commissioner by the Senate IB unconstitutional, there Is nonecessity to answer the seoond and third questions of your request.

SUMMARY Theprovision of Article 1.09, Section (a), of the Insurance Codewhich 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 WILLWILSON, Geo. P. Blaokburn, Chairman Attorney General of Texan John Webster C. K. Rlahards MaryK. Wall By &d&A Rlohard B. Stone Fi&VIEWED

FORTHEATTORNEYGYNEKAL Adsistant : Wm.V, Geppert