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Drcember 3, 1957 

Hon. ~Trlce Daniel Opinion No, W- 3@5 

Gwemor of Texas 

C&to1 Station Re: Whether by virtue of the provlAustin, Texas sions of Section 18 Article ,111, 

of the Texas Constitution, a 

member of the Legklatura Is eiigible for appointment by the 

Owernor to an office In the Executive ‘Department during tine tbrm 

Dear Governor Daniel : of office f,or which he Is elected. 

You have requested our o 

t; 

inion as to whether by virtue of the provisions 0:: Section 1 Article III of the Texas 

Constltltution, a member of the Legkleture is eligible for 

appointment by the Gwornor to an office in the Zxecut:va Department during the term of office for which he is ekcted, 

~iiich appointment requires confirmation of the knate, ,i:nd when 

tine Legislature of whhich he 2,s a member ha:- not creatccl the 

;,ositlon nor incrciiscii nor changed the emoluments of thei office. 

Article III, tijsct:.on 18, of the State Constitution is 

as follows : 

“No Serator or P.:?;:rasuntative shall, during 

tk term for :Aich he riay be elected, be eligible 

tc, any civil office of profit under this State 

which shall have been created, or the omolum& of 

which msy have been increased during such term; no 

member of either Hcuse shall during the term for 

:&lch he is clectcJ, 110 cllg~ble tc any office 3r 

pl:lCJ, %hrd appointment tc Rich may be ntiido, ,in 

yL,“t;” or 4 +n part, by f!lthcr branch of tl:c i.c&isla- 

; &rid no ti:Iumbcr 0:’ ‘-iither Eouse shall votr; .:‘c:r 

ary otha .membor Yor :,ny c.ffice whatever, \fi,ich 1.: ,‘J 

be filled by a vote tij’ the Legislature, e:%cpt In 

such cclses IAS are in this Constitution izovldad. 

Hor shall any member of the Legislature be interested, either directly or Indirectly, in any contract with the State, ,or any county thereof, nu%orized by any 1~ pas-ec; <during the term for cJhic1; he 

shall have been olccted.V’ 

The answer to your question depends upon the interprektion of the’ second sentence of Section 16, which reads that 
’ 1 

Hon.. Price Daniel, page 2 (WW-305) 

"No member of either House shall, during the term for which he 

is elected, be eligible to any office or place the appointment 

to which may be made, tn whole or &n nart bv ejther branch ot: 

the Leaislatura: . . . It therefore becomes necessary to determine whether confirmation by the Senate under the provisions 

of Section 12, Article IV, of the Texas Constitutionconstitutes 

an nappointment'l by the Senate. If the act of confirmation by 

the Senate is an *appointment", 

ous phraseology of Section 18, 

then under the clear, unamblguArticle III, no member of the 

Legislature, during his term of office, is eligible for appointment by the Governor, if confirmation Is essential. 

In an opinion written by Assistant Attorney General 

R. W. Fairchild, considered in conference and approved by Gerald 

C. Mann, Attorney General of Texas, as Opinion No. o-1092, Conference Opinion No. 3076 answering an almost identical question, 

the Attorney General held that confirmation by the Senate constituted an integral part of the nappo$ntmentn and, therefore, 

under the provisions of Section 18, Article III; no member of 

the Legislature was eligible for appointment by the Governor to 

anv offfee which required confirmation by the Senate of Texas 

under the provisions of Section 12, Article IV of the Constitution during the term of office for which the legislator had been 

elected. 

The opinion by Attorney General Mann has exhaustively 

briefed the authorities upon which the ruling was based and, in 

addition, has carefully cited and discussed prior opinions of 

preceding Attorneys General and dlstinguished their holdlngs. 

We conciLT in the ruling by Attorney General Mann above referred 

to and adopt the following quotations therefrom: 

"The determination of the question of eligibility of a Legislature, during the term of office for 

which he is elected, turns upon the meaning to be 

given the word 'appointment.,' used In the second 

clause of Article 3, Section 1.8. 

"If the term 'appointment' is used in the broad 

sense 

of ac t 

that is, as comprising that completed series 

s by virtue of which a person may acquire the 

rlght to &&and u an office, then the Legislator is ineligible to such 'appointment' In this instance, for one of the steps in that proceeding, 

necessary to be performed to entitle the person to 

take and hold the office consists in confirmation 

by the Senate. On the other hand, if the term lappointment' as used therein is Synonymous with 'nom& 

nation,' that is, if it means no more than the act of 
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Hpn. Price Daniel, page 3 NW-305) 

naming the person who, if the other steps necessary 

to entitle him thereto are favorably completed, may 

take and hold the office, then the Legislator would 

be eligible, for the power to ‘nominate I is vested 

in this instance in the Chief Executive alone. 

“In the determination of the meaning to be ascribed to the.word ‘appointment t as used In the 

second.clause of Article 3, Section 18, the words 

‘in whole or in part, I used in the same clause, are 

of particular significance. By the application of 

well-known and commonly understood rules of gramma- 

. tical construction, it is apparent that the words 

‘In whole or in part’ modify the term preceding them 

in the clause, towit, ‘appointment. IIhe meaning of 

the clause, therefore may be grasped more readily 

by restating it as follows:, 

!IIIf the whole or a part of the appointment to 

an office may be made by either branch ‘of the Legislature, no member of the Legislature shall, during 

the term for which he’ie elected, be eligible to 

such office or place. ’ 

“If the’ term ‘appointment, (‘used in Article 3, 

Section 18, was intended to have no greater meaning 

than ‘nomination,’ it is difficult, if not Impossible, 

to ascribe an> reasonable meaning .to the words ‘in 

part. I It is, therefore, important to note that the 

framers of the Constitution contemplated that an 

‘appointment’ might be divisible into parts, and that 

a part of the ‘appointment’ might be made by “either 

branch of the. Legislature. I . 

“Necessarily, it seems to us, it was contemplated by the framers of the 1876 Constitution that 

an ‘appointment’ might consist of,several steps, the 

performance of each of which was necessary,to vest In 

the person the right to take and hold the office or 

place, and that the performance of one of these steps 

in the ‘appointment’ might be vest,ed in one branch of 

the Le 

$ 

islature. It is significant to note that Article Section 12, of the Constitution, Itself vests 

in the &enate the performance of one of the steps 

necessary to entitle a person to &&Q a’nd m a State 

or district office; that is, such ,provision of the 

Constitution requires the Senate to confirm or reject 

persons named by the Governor to fill vacancies In 

State or district offices, as a condition precedent to 
Hon. Price Daniel, page 4 (‘N-305) 

the right of such persons to take and hold, until 

the next general election, such offices. 

Vhus it is evident that the framers of the * 

Constitution had in mind, by the very language used 

by themselves, in such Constitution, one of the 

methods by which a branch of the Legislature might 

perform one of the steps necessary to entitle a 

person to take and, hold an office ‘or place. On the 

other hand, it is not easy to comprehend how a 

branch of the Legislature might exercise part of the 

power to ‘nominate I a person to fill an office or 

place. It would seem that In order to give full 

effect to the Constitutional provision 

interpretation thereof might accord with 

so that the 

the inten-. 

tion of its framers and the fullest protection 

afforded against the evils sough,t therein to be safeguarded against, the term ‘appointment’ should be 

construed as having the broader meaning attributed 

to it above. 

I, . . . 

fp’Je are of the opinion that; where confirmation by either branch of the Legislature is required 

to be had, under Article 4, Section 12, of our ConstiV&ion, a member of the Legislature is ineligible 

to be named to fill such office or place. 

“The ineiigibil.lty of the Legislator to such 

office or place extends throughout the entire period 

of time assigned by the people to the office of member of the Legislature, to which he was eiected. 

Zuch ineligibility may not be removed by resignation 

from~,the office, for the Constitution does not provide 

that it shall continue only during such a period of 

time OS he Is a mem’ber of the Legislature, or during 

the pried of time that he actually served as such 

but expressly provides that ,the inel,igi’billty shall 

endure ‘dur-ing the term for which he is elected. ‘IV 

Among the authorities cited In support of this Yuling 

are Brown VT&&&, 4j Tr-r. b78 (1895); Denison v. Stat% 

S.W.2d X17, 102I (Clv.App. 1933 error ref., 61 S.W.2d ;Q$); 

, 24 Tex. 337 (1.8$9), and Ex uarte Hennan 13 

The Supreme Court of Texas has recent& reaffirmed the holding in on v. State m, in Wa.l.ker e# 

j&&g, 145 Tex. 121,. 196%%2d 324 (194b,). : 
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Hon. Rice Daniel., page 5 (~~-305) 

It is our opinion that no member of the Legislature 

is eligible for appointment by you to an office In the Executive 

Department which requires confirmation by the Senate during the 

term of office for which the legislator has been elected, even 

though the Legislature of which he is a member has not created 

the office or changed Its emoluments. 

No member of the Legislature is eligible for 

appointment by the Governor to anoffice in the 

Executive Department which requires confirmation 

by the Senate during the term of office for which 

the legislator has been elected, even though'the 

Legislature of whlch.he is a member has not created the office or changed Its emoluments, 

Yours very truly, 

WILL WILSON 

Attorney General of Texas 

CKR:wb 

APPROVED: 

OPINION COMMITTEE 

Geo. P. Blackburn, Chairman 

John H. Minton, Jr. 

Wayland C. Rivers, Jr. 

J. C. Davis, Jr. 

Joe Wheeler 

Mark McLaughlin 

W. V. Geppert 

Assistant