Honorable Preston Smith 

Governor of the State of Texas 

State Capitol Building 

Austin, Texas 787 11 

Dear Governor Smith: 

,-~ 

Opinion No. M-728 

Re: Whether Price Daniel is 

eligible for appointment 

to the Texas Supreme Court 

in view of the fact his son 

is a member of the House 

of Representatives? 

Your recent request for an opinion 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 of Texas, since his 

son, Price Daniel, Jr., is a member of the Texas 

House of Representatives? ” 

We fitid that the eligibility qualifications for the office of a Supreme 

Court Justice and the authoTization for appointments to fill such a vacancy 

are set out in the Constitution of Texas, which created the Supreme Court 

by its Sections. 1 and 2 of Article V. The provisions of Article V relating 

to eligibility and appointments are as follows: 

“Sec. 2. The Supreme Court shall consist of a Chief 

Justice and eight Associate Justices, any five of whom 

shall constitute a quorum, . . . No person shall be eligible to the office of Chief Justice or Associate Justice 

of the Supreme Court unless he be, at the time of his 

election, a citizen of the United States and of this state, 

and unless he shall have attained the age of thirty-five 

years, and shall have been a practicing lawyer, or a_ 

lawyer and judge of a court of record together at least 

ten years. . . . In case of a vacancy in the office of any 

-3528- 
Honorable Preston Smith, page 2 (M-728) 

“Sec. 28. Vacancies in the office of judges of the Supreme 

Cart, the Court of Criminal 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 of Article XVI, and Section 4 of Article XV, of the Texas 

Constitution. None of these constitutionally enumerated disqualifications relates to kinship with a member of the Legislature. 

Other constitutional qualifications and disqualifications applicable 

judges and other offices of public trust are contained in Sections 

Justice of the 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 of the 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 of Section 12 of Article IV are applicable 

to these judicial appointments and require that they be confirmed by the 

Senate. This interpretation has been followed for many years by Texas 

Governors and Senates. The relevant portion Section 12 of Article IV reads: 

“Sec. 12. All vacancies 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, if 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 . . . 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 of whether 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 of those 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 of this 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 of the 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 of which such persorl so’ appointing or voting may be a member, when the 

salary, fees, or compensation of such appointee is to be 

paid for, directly or indirectly, out of or from public 

funds or fees of office of any kind or character whatso-, 

ever; . . .‘I 

Article 433 enumerates the offices to which “The inhibitions set 

forth in this law. . . ” shall apply, including executive officers, judges, members of the Legislature, members of State Boards, school boards, city 

councils, etc. Article 434 prohibits trading of appointments, and Article 

435 prohibits payment of warrants 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 a vast number of 

statutory State, district, county and city offices and to make ineligible for 

appointment relatives of the appointing or confirming officers. With reference to statutory offices, the Act has been held valid in numerotis 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 

-3530- 
Honorable Preston Smith, page 4 (M-728) 

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

Article 432 has been construed by this office to apply to a brother 

of one of the members of the Legislature (House) so that he might not be 

appointed to serve on the Board of Directors of the Guadalupe-Blanc0 

Authority. Attorney General Opinion No. O-6428 (1945). However, there 

is no opinion of this office passing upon the application of this 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 a majority of the other states is stated in 

34 ALR2d 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 a Constitution lays down specific eligibility requirements for a particular constitutional office, the constitutional specification in that regard is exclusive and the legislature (except 

where expressly authorized to do so) has no power to require additional and different qualifications for such constitutional office. ” (p. 17 1. ) 

This general majority rule is stated in 81 C. J. S. 988, States, Sec. 

66; 42 Am. Jur. 909, Public Officers, Sec. 38, notes 11 and 12; 42 ALR 909; 

47 ALR 481; 95 ALR 294; 143 ALR 599; 18 ALR2d 241 and 71 ALR2d 352. 

Does the Texas Constitution, either expressly or impliedly, give 

the Legislature the power to impose additional or different qualifications 

for a Justice of the Supreme Court than those set out in Article 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 in the Constitution. 

-3531- 
Honorable Preston Smith, page 5 (M-728) 

The subject of nepotism is deemed to be one personal type of 

disqualification for office. 22 RCL 401, 88 ALR 1103. The enactment 

of nepotism statutes finds its validity in the exercise of the 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. ” 88 ALR 1104. (Emphasis 

added. ) See Ann. Cas. 1917D, 735. 

We will now discuss the ledding Texas cases in support of the foregoing rule of constitutional construction. The first is Dickson v. Strickland, 

114 Tes. 176, 265 S. W. 1012 (1924) in . which 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 

in the Texas Cotistitution for the office of Governor, and also because the 

common law prohibited a woman 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 in the Constitution, it cannot be doubted that it was utterly void. ” 

(at p. 1015. ) 

The Supreme Court cited 9 RCL 1124 and Cooley’s Constitutional 

Limitations (7th Ed. ), page 99 for cases from other states, and quoted 

the following language from the Supreme Court of Illinois in People v. 

McCormick, 103 N. 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. 

In our Constitution no other form bf stating eligibility to 

office is found than the declaration that no person shall be 

eligible who does not possess certain qualifications. The 

Constitution of the United States is in the same form in 

this particular. and so are the Constitutions of other states. 

The expression of the disabilities specified excludes others. 

The declaration in the 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 of Texas then continued: 

“The qualifications of public 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 of the Legislature 

to add an additional qualification for an elector to those 

prescribed by the Constitution. Solon v. State, 54 Tex. 

Cr. R. 261, 114 S. W. 349; Koy v. Schneider, 110 Tex. 

378, 218 S. W. 479, 221 S. W. 880.” (at p. 1015.) 

Th e Court then quoted from an opinion in Steusoff v. State, 80 Tex. 

430, 15 S. W. 1100 (1891) as follows: 

” ‘Eligibility to office is not declared as a right or principle 

by any express terms of the constitution, but it rests as a 

just deduction from the express powers and provisions of 

the system. The basis of the 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, 75 S. 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 to have the name of James V. Allred 

removed from the ballot because of a violation of Article 3173of the Election 

Code limiting campaign expenses. The San Antonio Court of Civil Appeals 

said: 

“The Constitution of Texas having prescribed the requisite qualifications for one to be the Governor of the 

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. ” 

-3533- 
Honorable Preston Smith, page 7 (M-728) 

. . . . 

“Therefore, the first sentence of article 3173, quoted 

above, in so far as it imposes a test of eligibility or ineligibility for one to have his name placed on the official ballot at the general election as the nominee of a party and 

a candidate for the office of Governor is unconstitutional. 

To prescribe a qualification or disqualification for one to 

have his name placed on the ballot as a candidate 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 16 5 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. ) 

In overruling a motion to file a petition for the mandamus, the 

Supreme Court wrote an opinion, reported in 75 S. W. 2d 253, in which it 

expressly concurred in the language of the Court of Civil Appeals: 

“The Supreme Court concurs in the conclusion stated in 

the opinion of Chief Justice Bickett, in words as follows: 

‘The Constitution of Texas having prescribed the requisite 

‘qualifications for one to be the Governor of the 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 it best to add only a few words to the clear discussion of this question in the opinion of the Chief Justice. 

On this point, his opinion firmly rests on Dickson v. Strick- 

-3534- 
Honorable Preston Smith, page 8 (M-728) 

land, 114 Tex. 176, 265 S. W. 1012. . . The main question 

in that case was whether the disability of coverture rendered 

Mrs. Ferguson ineligible to be Governor. The question here 

is simply whether a nominee 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, 142 Tex. 704, 181 S. W. 2d 570 (1944), the 

Supreme Court declared unconstitutional Article 2929a, which provided that 

no person elected or appointed to an executive or administrative public office for a term of more than two years shall be eligible for nomination or 

election to another office the term of which begins before expiration of term 

or original office unless he first resigns. The Court said: 

‘1. . . It was 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 in State ex rel Candler et al v. Court of Civil Appeals et al, 123 Tex. 549, 75 S. W. 2d 253. The statute here 

involved seeks to impose an additional test of eligibility, other 

than what is prescribed by the Constitution, on a candidate 

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 in Ex Parte Le Fors, 347 S. 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. ) 

In the Kilday case, supra, it was argued that the statutes were a 

mere exercise of the 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 a person from obtaining 

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

a constitutional office by election amounts to an added qualification and is 

unconstitutional. In this connection the Court of Civil Appeals said: 

II 

. . . To prescribe a qualification or disqualification 

for one to have his name placed on the ballot as a candidate is to prescribe a qualification ordisqualification to 

hold the office. . . . If he 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. ” 

75 S. W. Zd 150. 

The Supreme Court, in refusing a motion for mandamus in the 

above case (75 S. W. 2d 253, 257) arrived at the same conclusion, adding 

‘I. ‘~. . The question here is simply whether a nominee 

had been rendered ineligible under a statute adding to 

the tests of eligibility specified in the Constitution . . . ” 

By analogy, the question here is simply whether an otherwise qualified 

appointee to a constitutional office is rendered ineligible under a statute 

which would prevent the~senate from confirming the appointee on account 

of his relation to a House member. Paraphrasing the Court’s holding 

and applying’,it to such an appointee, we cannot escape the following conclusion: 

To prescribe a qualification or disqualification for one 

to be appointed to an office is to prescribe a qualification 

or disqualification to hold the office . . . If he 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 a disqualification 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 no valid application to 

constitutional offices for which the Constitution itself enumerates the qualifications and disqualifications of persons 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 a constitutional antinepotism statute in harmony 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. 

In view of the foregoing, we answer your question in the affirmative 

having concluded that if Price Daniel meets all the constitutional eligibility 

requirements for appointment as a Justice of the Supreme Court, he is not 

ineligible because his son is a member of the Texas Legislature. Article 

432, Vernon’s Penal Code, does not apply to the office of a Justice of the 

Supreme Court. ’ 

SUMMARY 

If Price Daniel meets all of the eligibility qualifications enumerated in the Texas Constitution for appointment to the office of a Justice of the Supreme Court, 

he is not ineligible for such appointment because his son 

is a member of the 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 

-3537- 
Honorable Preston Smith, page 11 (~-728) 

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 

-3538-