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# 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 ofFrank Austin, Texas M. Jackson, SecretaryDirector ofthe Teachers Dear Mr. Calvert: Retirement System

YOU have referred tothis 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 anappropriation to Mr. Jackson inthe 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 ofMarch, 1957, inthe s,utnof $750.00 and $175.00 for seven days for the month ofApril. This claim is for the net salary for the month of March inthe sum of $624.81 and $175.00 for seven days inthe month ofApril, 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 ofMr. Jackson which reveals most ofthe facts, but some are added which we have obtained from The Teachers Retirement System. We quote the pertinent part ofMr. Jackson’s affidavit.

“I was appointed Executive Secretary-Director

of Teacher Retirement System ofTexas by the State Board of Trustees, Teacher Retirement System of Texas onMarch 1, 1957 at a monthly salary of $750.00. Iassumed my duties as ofMarch 1, 1957. The Chairman of the Board ofTrustees of the Teacher Retirement System told me Iwould be paid from March 1, 1957.
“On March 31, 1957, Ireceived aState Warrant inthe net amount of $624.81.

“I was confirmed by the State Senate onApril 8, 1957. OnApril 9, 1957, Robert S. Calvert, State Comptoller of Public Accounts called me and advised that Ishould repay the Teacher Retirement System the amount of the warrant plus $15.00 Teacher Retirement, $16.99 Social Security and $93.20 withholding tax forHon. Robert S. Calvert page 2 (WW-190)

March1957. Ihave 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 7days inApril inthe **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 ofSanAngelo, Texas, was unanimously elected as Executive Secretary to fill the position ofMrs. B. B. Sapp.”
Sub-seci 4ofSec. 12ofArticle 2922-1 Vernon’s Civil **Statutes** provides as to the executive duty inpart as follows:

“He shall recommend and nominate to the State Board of Trustees such actuarial and other service as shall be required totransact the business of the Retirement System.”
Sub-sec. (a) ofSec. 12ofArticle 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 ofTrustees, 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 inthat capacity. When he assumed his duties onMarch 1, 1957, he did not take an oath of office nor is any required ofhim by any provision of the law governing the Teachers Retirement System. He did give a bond inthe surnof $25,000.00 payable to the State Board ofTrustees as provided in Sub-section 2 ofSec. 16ofArt. 2922-l V.C.S. Under date ofMarch 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 onApril 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 toMr. Jackson on April 10, 1957Hon. Robert S. Calvert page 3 (WW-190)

Our answer as to thevalidity 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 ofthen

State. Ifan officer of the State, then for the purpose of this opinion we **assume** the provision ofthe **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 insession his appointment as an officer of the State, ifhe 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 ofthe Senate.

In81C.J S. 1001, we find this language:
“The governor, inexercising his power of appointment must, if the law so requires, act in conjunction with another body, and he cannot exercise the power ofappointment alone, but must obtain proper confirmation ofhis appointment before such appointment is valid;.

. .”
Insupport of this statement from the text is cited Denison v. State, 61S.W.Zd 1017(Civ. App 1933 Error Ref.) Denison v.?%&-& rel Allred, 122Tex. 459, 61S.W.2d 1022 (1933). The rule is clearly stated inthe case ofMcBride vs. Osborn, 127Pac. 2d, 134Supreme Court ofArizona inthe 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 totake over the office and discharge its duties. InMcCall v. Cull, 51Ariz. **237, 75**  P. 2d 696, 699, the **court** used the following lan**guage** indiscussing 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 thisjoint power by first appointing the officer, but such appointment is ineffective until and unless ratified or confirmed by the Senate.***’ ”
Inbrief ifMr. Jackson’s appointment by the Board ofTrustees 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. Itwould, therefore, follow that ifhe 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)

IfMr. Jackson is anemployee 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 tobe paid out of the appropriation available tothe State Retirement System to pay for such services, which he has faithfully discharged from March 1st upto 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 ofthe 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 inthe case ofAldine Independent School District v. Standley, 154 Tex. 547, 280 S.W.2d 5(8 (1958) stated inthis language:

“We think, that the determining factor which distinguishes apublic 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 ofthe public largely independent of the control of others.” (Emphasis added)
What separate and independent functions ofthe government are conferred upon **Mr.** Jackson to be exercised by him for the benefit of the public independent of the control ofthe 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 ofthe Retirement System.” This activity is still subject to and subordinate to the Board. **Moreover,** the above quoted Sub-sec. (a) ofSection 12of 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 upthe System, in the Board ofTrustees.

Mr. Jackson is at all times subject to the control and direction ofthe Board of Trustees and possesses little or no authority independent of theBoard. 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 ofthe Board, whereas ifhe be an officer ofthe State his term would be limited tofilling out the unexpired term of his predecessor. Her term could not exceed two years by virtue ofSec. 30 ofArticle XVI ofthe Constitution ofTexas which provides inpart as follows: “The duration of all offices not fixed by this Constitution shall never exceed twoyears;.
. .” He could not be removed except for cause and then would be entitled toa trial by**jury.** Knox et al v. Johnson, 141S.W.2d. 698 (1940 Writ Ref.).

Hon. Robert S. Calvert Page 5 (WW-190)

The only alternative for removal of an officer ofthe State is by impeachment. Inbrief ifhe be an officer of the State he does not serve at the discretion of the appointive power. Ifan 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? Ifthat part ofthe **statute** requiring this is valid, regardless of whether he is an officer or employee, then it must be obeyed. The provision ofthe Constitution pertinent herein dealing with filling - vacancies in state and district offices is Sec. 12ofArt. IV ofthe Constitution ofTexas which is as follows: 4:

“Sec. 12. All vancancies inState 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 oftwo-thirds of the Senate present. If made during the recess of the Senate, the said appointee, or some other person tofill such-vacancy, shall be nominated to the Senate during the first ten days of its session. Ifrejected, 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 tovacancies inoffices 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 tothe foregoing provision, if it is applicable. Itseems quite clear to us, by the express wording of this provision of the Constitution, it applies only tovacancies inState and district offices and has no application to State employees, regardless ofwhether 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. Inother words this provision permits the filling ofvacancies instate offices by other authorities thanHon. Robert S. Calvert Page 6 (WW-190)

the **Governor;** but itdoes not follow that such appoinhents’tiust beconfirmed by the Senate. This is the express holding in case ofDenison V.State, 61S.W. 2d 1017 (1933 Error ref.) expressed inthe following language:
“We think the language of section 12, art. 4,

of the Constitution is plain, clear unambiguous, and capable ofbut one construction. That the clause ‘unless otherwise provided by law’ refers to the nominating authority, and has no reference to ‘the advice and consent oftwo-thirds ofthe senate present.’ This language clearly contemplates that the Legislature may, should it see fit, provide by law for the filling of offices created by itotherwise’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 inthe case ofWalker v. Baker, 145Tex. 121, 196S.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., 61S.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. 12ofArt. IV of the Constitution of Texas conferring this limited executive power upon the Senate constitutes an exception to Sec. 1ofArt. IIof the Constitution ofTexas, which is as follows:

“Section 1. The powers of the Government of the State ofTexas shall be divided into three distinct departments, each ofwhich shall be confided to a separate body ofmagistracy, towit: Those which are Legislative to one; those which are Executive to another, and those whichare Judicial to another; and no person, or collection ofpersons, 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)
IfMr. Jackson is an officer of the State he was appointed by the proper authority, and the statutory requirement of submission ofhis appointment tothe 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 itseems quite clear to us that ifMr. Jackson is an employee as distinguished from an officer of the State that Sec. 12ofArt. IV ofthe Constitution ofTexas 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 ofArt. IV ofthe Constitution ofTexas may not be enlarged to embrace employees when they are not covered by itand any legislative attempt to invoke the action of the Senate by confirmation or rejection as to employees would be a clear violation ofSec. 1ofArt. II inthat the Senate would be discharging executive functions clearly forbidden by that section. Walker vs. Baker, 145Tex. 121, 196S.W. 2d 324 (1946). What was said by the Supreme **Court** inan early case, Houston Tap &B.R. Company vs. Randolph, 24 Tex. 317 is appropriate 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 legisiatiRreto one, those which are executive to another, and those which are judicial toanother; and no person or collection of persons, being of one ofthese 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 ineach department, will be wise enough, and honest enough, to discharge the duties intrusted to them, without the aid or interference ofthe others. And itis afull warrant for each department to disregard and repel such volunteer and unauthorized aid and interference. For as before said, each one ofthese 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 theExecutiveSecretary ofthe Teachers Retirement System is not an important position; indeed itis. Itis one ofhonor and **trust** and, of course, of emolument, but itdoes not rise **to** the **stature** of an officer ofthe **state** inany sense inwhich confirmation by the Senate could be constitutionally required.Hon. Robert S. Calvert Page 8 (WW-190)

We, therefore, hold that Mr. Jackson is not aState Officer but an employee and that the **statutory** provision requiring the sucmission ofhis appointment by the Board to the Senate for confirmation is void and unconstitutional in that itviolates Sec. 1ofArt. II ofthe Constitution ofTexas, 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 ithas been withheld from him andyou have the authority to issue awarrant 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. 12ofArt. IV ofthe Constitution ofTexas and anAct of the Legislature requiring such confirmation is invalid and unconstitutional. A state employee is entitled to receive his salary from inception ofhis appointment regardless ofany **statutory** requirement for confirmation. Very~truly yours, WILL WILSON Attorney General ofTexas

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APPROVED: QPINION COMMIT:TEE:‘.: H. GradyCChZuldler, Chairman
Ci.1.:. Richards
Marvin Thomas John Lennan Ass istant