Honorable Preston Smith

Governor of the State of Texas State Capitol Building Austin, Texas 78711

Dear Governor Smith:

,-~ Opinion No. M-728

Re: Whether Price Daniel is

eligible for appointment to the Texas Supreme Court inview ofthe fact his son is amember ofthe House of Representatives? Your recent request for anopinion of this office poses the following question:

“Would you please advise this office whether or not fokn.&r governor, PrikDaniel, is eligible for appointment to the Supreme Court ofTexas, since his son, Price Daniel, Jr., is amember ofthe Texas House of Representatives? ” We fitid that the eligibility qualifications for the office of aSupreme Court Justice and the authoTization for appointments to fill such avacancy are set out in the Constitution of Texas, which created the Supreme Court by its Sections. 1and 2ofArticle V. The provisions ofArticle V relating to eligibility and appointments are as follows:

“Sec. 2. The Supreme Court shall consist of aChief Justice and eight Associate Justices, any five ofwhom shall constitute aquorum, . . . No person shall be eligible to the office of Chief Justice or Associate Justice ofthe Supreme Court unless he be, atthe time ofhis election, acitizen ofthe United States and ofthis state, and unless he shall have attained the age ofthirty-five years, and shall have been apracticing lawyer, or a_ lawyer andjudge of acourt of record together atleast ten years. . . . In case of avacancy inthe office of any
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“Sec. 28. Vacancies inthe office ofjudges ofthe Supreme Cart, the Court ofCriminal Appeals, the Court of Civil Appeals and the District Courts shall be filled by the Governor until the next succeeding General Election;
. , .” (Emphasis added. )
alike to . 2, 5, 12, 40 and 41 ofArticle XVI, and Section 4of Article XV, ofthe Texas Constitution. None of these constitutionally enumerated disqualifications relates to kinship with amember ofthe Legislature.

Other constitutional qualifications and disqualifications applicable judges and other offices ofpublic trust are contained inSections Justice ofthe Supreme Court, ‘the Governor shall fill tne vacancy until the xx-general election for state officers, and at such general election the vacancy for the unexpired term shall be filled by election by the qualified voters ofthe state . . .I’ (Emphasis added.)

Although the above quoted specific provisions for appointments by the Governor to fill judicial vacancies do not require Senate confirmation, this rCfice expressed the opinion in Attorney General’s Opinion No. O-1092 (1939) that the general provisions ofSection 12of Article IV are applicable to these judicial appointments and require that they be confirmed bythe Senate. This interpretation has been followed for many years by Texas Governors and Senates. The relevant portion Section 12ofArticle IV reads:

“Sec. 12. All vacancies inState or district offices,~ except members ofthe Legislature, shall be filled unless otherwise provided by law, by appointment ofthe Governor, which appointment, ifmade during its session, shall be with the advice and consent oftwo-thirds of the Senate present. Ifmade during the recess ofthe 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
. . . Appointments to vacancies in offices elective by the people shall only continue until the first general election thereafter. ” Your inquiry thus raises the controlling question ofwhether the general statutory provisions of the Anti-Nepotism Law (Articles 432-435 of

-3529-Honorable Pr.eston Smith, page 3 (M-728)

Vernon’s Penal Code) apply to those offices created by the Constitution and for which the Constitution has enumerated the qualifications ofthose eligible to serve and the method of appointment to fill vacancies. We quote the pertinent portion of Article 432:

“No officer of this State nor any officer of any district, county, city, precinct, school district, or other municipal subdivision ofthis State, nor any officer or memb’er of any State district, county, city, school district 6k other municipal board, or judge of any court, created by or ‘under authority of any General or Special Law of this State, nor any member ofthe Legislature, shall appoint, or vote for, or confirm the appointment to any office’, poiition, clerkship, employment or duty, of any person related within the second degree by affinity or within the third degree by consanguinity to the person So appointing or so voting, or to any other member of any such board, the Legislature, or court ofwhich such persorl so’appointing or voting may be amember, when the salary, fees, or compensation of such appointee is tobe paid for, directly or indirectly, out ofor from public funds or fees ofoffice of any kind or character whatso-, ever; . . .‘I Article 433 enumerates the offices towhich “The inhibitions set forth inthis law.
. .” shall apply, including executive officers, judges, members ofthe Legislature, members ofState Boards, school boards, city councils, etc. Article 434 prohibits trading of appointments, and Article 435 prohibits payment ofwarrants or other conpensation to ‘I.
. . such ineligible officer or person, knowing him to be so ineligible. ”

, It is apparent that the Act was intended to cover avast number of statutory State, district, county and city offices and to make ineligible for appointment relatives ofthe appointing or confirming officers. With reference to statutory offices, the Act has been held valid innumerotis decisions of the Courts and opinions of the Attorney General. Although the language of the statute is comprehensive enough to apply to constitutional officers whose qualifications are fixed by the Constitution, our research reveals that no decision exists which holds that they are applicable to such offices. Consequently, the fact situation presented by your request, as applied to

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the anti-nepotism statute, presents alegal question of construction of Article 432 which has not been previously passed upon in this state.

Article 432has been construed by this office to apply to abrother of one of the members ofthe Legislature (House) so that he might not be appointed to serve on the Board of Directors ofthe Guadalupe-Blanc0 Authority. Attorney General Opinion No. O-6428 (1945). However, there is no opinion ofthis office passing upon the application ofthis statute to those officers whose qualifications on grounds of eligibility or ineligibility are prescribed by the Constitution of Texas, and therefore any Attorney General opinions which have construed the statute would be distinguishable from this situation presented.

The rule in Texas and in amajority ofthe other states is stated in 34ALR2d 155, 163-171, as follows:

“Generally speaking, a state legislature’s powe; as to prescribing eligibility qualifications for constitutional officers ordinarily is not equivalent to its power to prescribe such qualifications for statutory offices
. . . (p. 163.)

“It is quite generally considered that where aConstitution lays down specific eligibility requirements for aparticular constitutional office, the constitutional specification inthat regard is exclusive and the legislature (except where expressly authorized to do so) has nopower to require additional and different qualifications for such constitutional office. ” (p. 171.) This general majority rule is stated in 81C.J.S. 988, States, Sec. 66; 42Am. Jur. 909, Public Officers, Sec. 38, notes 11and 12;42ALR 909; 47 ALR 481; 95ALR 294; 143ALR 599; 18ALR2d 241 and 71ALR2d 352.

Does the Texas Constitution, either expressly or impliedly, give the Legislature the power to impose additional or different qualifications for aJustice ofthe Supreme Court than those set out inArticle V, Section 2? We can find no such power. Article V, Section 2, confers no such legislative power, nor does any other Section under Article V, covering the Judicial Department. We further observe that the legislative power to pass nepotism statutes is not even mentioned inthe Constitution.
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The subject of nepotism is deemed tobe one personal type of disqualification for office. 22RCL 401, 88ALR 1103. The enactment of nepotism statutes finds its validity inthe exercise ofthe police power, and the legislature “may prescribe such qualifications for the holding of a statutory office as it sees fit, as long as it does not interfere with any -qualification prescribed by the Constitution. ” 88ALR 1104. (Emphasis added. ) See Ann. Cas. 1917D, 735.

We will now discuss the ledding Texas cases in support ofthe foregoing rule of constitutional construction. The first is Dickson v. Strickland, 114Tes. 176, 265S.W. 1012 (1924)
. inwhich Mrs. Ferguson’s eligibility for the offi~ce of Governor was challenged because she failed to meet residence requirements of Articles 3082 and 3083a, which were not set forth inthe Texas Cotistitution for the office of Governor, and also because the common law prohibited awoman from serving as Governor. With reference to the statutes which purported to add residence qualifications, the Texas Supreme Court declared:

II

. In so far as this act related to officers, such as the Governor, whose qualifications had been particularly and carefully and differently enumerated inthe Constitution, it cannot be doubted that itwas utterly void. ” (at p. 1015. ) The Supreme Court cited 9RCL 1124 and Cooley’s Constitutional Limitations (7th Ed. ), page 99for cases from other states, and quoted the following language from the Supreme Court of Illinois in People v. McCormick, 103N.E. 1057:

” ‘In our judgment, when the Constitution undertakes to prescribe qualifications for office, its declaration is conclusive of the whole matter, whether in affirmative or in negative form. Eligibility to officn belongs to all persons. Inour Constitution noother form bf stating eligibility to office is found than the declaration that noperson shall be eligible who does not possess certain qualifications. The Constitution ofthe United States is inthe same form in this particular. and so are the Constitutions of other states. The expression ofthe disabilities specified excludes others. The declaration inthe Constitution that certain persons are

-3532-Honorable Preston Smith, page 6 (M-728)

not eligible to office implies that all other persons are eligible. ’ ” (Emphasis added. ) (at p. 1015. ) The Supreme Court ofTexas then continued:

“The qualifications ofpublic officers, when defined by the Constitution, are as clearly beyond change by the Legislature as are the qualifications of electors when fixed by constitutional provision. It is the declared law, by both the Court of Criminal Appeals and the Supreme Court of this state, that it is beyond the power ofthe Legislature to add an additional qualification for an elector to those prescribed by the Constitution. Solon v. State, 54Tex. Cr. R. 261, 114S.W. 349; Koy v. Schneider, 110Tex. 378, 218 S.W. 479, 221 S.W. 880.” (at p. 1015.) Th eCourt then quoted from an opinion inSteusoff v. State, 80Tex. 430, 15S.W. 1100 (1891) as follows:

” ‘Eligibility to office is not declared as aright or principle by any express terms ofthe constitution, but it rests as a just deduction from the express powers and provisions of the system. The basis ofthe principle is the absolute liberty of the electors and the appointing authorities to choose and appoint any person who is not made ineligible by the constitution. Eligibility to office therefore belongs not exclusively or specifically to electors enjoying the right of suffrage. It belongs equally to all persons whomsoever not excluded by the constitution. ‘
.” (q+ p. 1019. ) In Kilday v. State ex rel Candler, 75S.W. 2d 148(Tex. Civ. App. 1934, Motion for leave to file mandamus refused by the Supreme Court in 75 S.W.2d 253), an attempt was made tohave the name ofJames V. Allred removed from the ballot because of aviolation ofArticle 3173of the Election Code limiting campaign expenses. The San Antonio Court of Civil Appeals said:

“The Constitution ofTexas having prescribed the requisite qualifications for one tobe the Governor ofthe state and having fixed the grounds ofineligibility applicable to that office, it is beyond the power ofthe Legislature to add another ground of disqualification. ” -3533-Honorable Preston Smith, page 7 (M-728)

. . . .

“Therefore, the first sentence of article 3173, quoted above, in so far as it imposes atest of eligibility or ineligibility for one tohave his name placed on the official ballot atthe general election as the nominee of aparty and a candidate for the office of Governor is unconstitutional. To prescribe aqualification or disqualification for one to have his name placed on the ballot as acandidate is to prescribe a qualification or disqualification to hold the office II

. . .

. . ...

‘1.
. : The framers of the Constitution at the time made detailed provisions as to qualifications and disqualifications of the Governor, in connection with which only one reference was made to disqualifications arising from elections, namely, article 165 5, relating to bribery in elections. Thus it is apparent that the Constitution not only did not authorize the Legislature to create new qualifications for the Governor, but upon~the contrary foreclosed all future legislation upon that subject. ” (at p. :150.) Inoverruling amotion to file apetition for the mandamus, the Supreme Court wrote an opinion, reported in 75S.W. 2d 253, inwhich it expressly concurred in the language ofthe Court of Civil Appeals:

“The Supreme Court concurs in the conclusion stated in the opinion of Chief Justice Bickett, inwords as follows:

‘The Constitution of Texas having prescribed the requisite

‘qualifications for one to be the Governor ofthe state and having fixed the grounds of ineligibility applicable to that office, it is beyond the power of the Legislature to add another ground of disqualification. ’ “We deem itbest to add only afew words to the clear discussion ofthis question in the opinion ofthe Chief Justice. On this point, his opinion firmly rests on Dickson v. Strick-

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land, 114Tex. 176, 265 S.W. 1012.
. . The main question inthat case was whether the disability of coverture rendered Mrs. Ferguson ineligible tobe Governor. The question here is simply whether anominee had been rendered ineligible under a statute adding to the tests of eligibility specified in the Constitution. The court held in Dickson v. Strickland, supra, that the constitutional tests of eligibility to hold the Governor’s office could not be altered by statute. Chief Justice Bickett’s opinion follows that decision, ” (at p. 257. ) In Burroughs v. Lyles, 142Tex. 704, 181S.W. 2d 570 (1944), the Supreme Court declared unconstitutional Article 2929a, which provided that noperson elected or appointed to an executive or administrative public office for aterm ofmore than two years shall be eligible for nomination or election to another office the term ofwhich begins before expiration ofterm or original office unless he first resigns. The Court said:

‘1.
. . Itwas held by this court in Dickson v. Strickland, 114 Tex. 176, 265 S.,W. 1012, that where the Constitution prescribed the qualifications for office it is beyond the legislative power to change or add to the qualifications, unless the Constitution gives that power. That decision was reaffirmed inState ex rel Candler et al v. Court of Civil Appeals et al, 123Tex. 549, 75S.W. 2d 253. The statute here involved seeks to impose an additional test of eligibility, other than what is prescribed by the Constitution, on acandidate for State office, and for that reason it is void. ” (at p. 574.) Citing and following the above cases, the Texas Court of Criminal Appeals held inEx Parte Le Fors, 347S.W. 2d 254 (1961):

“Neither the courts nor the Legislature have the authority ;to add to the qualifications prescribed by the Constitution for the office of District Judge
. . .” (at p. 255. ) Inthe Kilday case, supra, itwas argued that the statutes were a mere exercise ofthe police power to regulate elections and prevent and punish corrupt practices, rather than to add eligibility qualifications for holding constitutional offices. In rejecting this distinction, the Court held that a statutory test of eligibility which prevents aperson from obtaining

-3535-Honorable Preston Smith, page 9 (M-728)

a constitutional office by election amounts to an added qualification and is unconstitutional. Inthis connection the Court of Civil Appeals said:

II

. . . To prescribe aqualification or disqualification for one to have his name placed on the ballot as a candidate is to prescribe aqualification ordisqualification to hold the office.
. . . Ifhe is not disqualified to hold the office, he is not disqualified to have his name placed on the ballot. This statute does undertake to add a disqualification not provided nor authorized by the Constitution. ” 75S.W. Zd 150. The Supreme Court, in refusing amotion for mandamus inthe above case (75 S.W. 2d 253, 257) arrived at the same conclusion, adding

‘I. ‘~..The question here is simply whether anominee had been rendered ineligible under a statute adding to the tests of eligibility specified inthe Constitution
. . .” By analogy, the question here is simply whether anotherwise qualified appointee to aconstitutional office is rendered ineligible under astatute which would prevent the~senate from confirming the appointee on account ofhis relation to aHouse member. Paraphrasing the Court’s holding and applying’,it to such an appointee, we cannot escape the following conclusion: To prescribe aqualification or disqualification for one

to be appointed to an office is to prescribe aqualification or disqualification to hold the office
. . . Ifhe is not disqualified to hold the office, he is not disqualified to be appointed. When applied to constitutional offices, this statute does undertake to add adisqualification not provided nor authorized by the Constitution. The Anti-Nepotism Act seeks to restrict the appointing and confirming authorities by adding eligibility disqualifications as shown by the words of the statute itself. Article 433, Vernon’s Penal Code, specifically refers to “The inhibitions set forth in this law
. . .” and Article 435 specifically designates the proscribed appointee as ‘I.
. . such ineligible office or person, . . .”

-3536-Honorable Preston Smith, page 10 (M-728)

We have, therefore, concluded that this Act is valid as to the many statutory offices to which it applies, yet it can have novalid application to constitutional offices for which the Constitution itself enumerates the qualifications and disqualifications ofpersons who may be elected or appointed thereto. Since under settled cannons of statutory construction, we must presume that the Legislature had the intent to enact aconstitutional antinepotism statute inharmony with the Constitution, we must hold that the Legislature did not intend that such statute apply to those offices which the Constitution created. and for which it prescribed the qualifications without granting to the Legislature any authority to add to such qualifications or eligibility requirements.

Inview ofthe foregoing, we answer your question inthe affirmative having concluded that if Price Daniel meets all the constitutional eligibility requirements for appointment as aJustice ofthe Supreme Court, he is not ineligible because his son is amember ofthe Texas Legislature. Article 432, Vernon’s Penal Code, does not apply to the office of aJustice of the Supreme Court. ’ SUMMARY

If Price Daniel meets all ofthe eligibility qualifications enumerated inthe Texas Constitution for appointment to the office of aJustice ofthe Supreme Court, he is not ineligible for such appointment because his son is amember ofthe Texas House of Representatives. Article 432, Texas Penal Code, the Anti-Nepotism Act, is not applicable, since the Legislature had been given no authority to add to or alter the eligibility qualifications prescribed by the Constitution which created such office. Youryvkry truly,

Attorney C&era1 of Texas

I,’ Prepared by Kerns Taylor

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APPROVED: OPINION COMMITTEE
W. E. Allen, Acting Chairman John Grace Houghton Brownlee J.C. Davis Ralph Rash Meade F. Griffin Staff Legal Assistant Alfred Walker Executive Assistant Nola White First Assistant

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