. - 

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, SecretaryDirector 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 Teachers 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 Comptoller 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 hereby vested in a State Board of Trustees, which shall consist 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 submitted 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, although 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 employee of then State. If an officer of the State, then for the purpose of 

this opinion we assume the provision of the statute requiring conflrmation 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 appointment must, if the law so requires, act in conjunction 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 language 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 unless 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 subject 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 direction of the Board of Trustees and possesses little or no authority independent 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 

Constitution of Texas which is as follows: 4: 

“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 appointee, 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 immediately 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. Appointments 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 application 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 applies to appointlve authority and not to the provision requiring confirmation or rejection by the Senate. In other words this provision permits 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 beconfirmed 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 contemplates 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 distinct 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 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 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 appropr 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 departments, and each of them be confined to a separate 

body of magistracy, towit, those which are legisiatiRre 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. 0. & W. Dig. 14. Here is a direct 

prohibition of the blending of the departments. It contemplates that the persons employed in each department, will be wise enough, and honest enough, to discharge 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 departments, and may be totally disregarded by them.” 

We do not mean to imply that the position of the ExecutiveSecretary 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 sucmission of his appointment by the Board to the Senate for confirmation 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 withheld 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 distinguished 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 confirmation 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 

LPL/fb 

APPROVED: 

QPINION COMMIT:TEE:‘.: 

H. GradyCChZuldler, Chairman 

Ci.1.:. Richards 

Marvin Thomas 

John Lennan 

Ass is tant