. -

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 appointmentby the Owernor to an office In the Executive ‘Department

during tine

tbrm Dear GovernorDaniel: of office f,or which he Is elected.

You have requested our ot; inion as to whether by virtue of the provisions0:: Section 1 Article III of the Texas Constltltution,

a member of the Legkleture is eligible for appointmentby the Gwornor to an office in the Zxecut:vaDepartmentduring the term of office for which he is ekcted, ~iiich appointmentrequires confirmationof the knate, ,i:nd when tine Legislatureof whhich he 2,s a member ha:-

not creatccl

the ;,ositlon

nor incrciiscii

nor changed the emolumentsof thei office.

Article III, tijsct:.on 18, of the State Constitutionis
as follows:

“No Serator or P.:?;:rasuntative shall, during tk term for :Aich he riay be elected, be eligible tc, any civil office of profitunder this State which shall have been created, or the omolum& of which msy have been increasedduring 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

appointmenttc 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 Constitutionizovldad. Hor shall any member of the Legislaturebe 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 questiondepends 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 thereforebecomes necessary to determinewhether confirmationby 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 phraseologyof 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 confirmationIs essential.

In an opinionwritten by AssistantAttorney General R. W. Fairchild, consideredin conferenceand approved by Gerald C. Mann, Attorney General of Texas, as OpinionNo. o-1092, Conference Opinion No. 3076 answeringan almost identicalquestion, the Attorney General held that confirmationby the Senate constitutedan integralpart of the nappo$ntmentn and, therefore, under the provisionsof Section 18, Article III; no member of the Legislaturewas eligible for appointmentby the Governor to
anv offfee which required confirmationby the Senate of Texas under the provisionsof Section 12, Article IV of the Constitution during the term of office for which the legislatorhad been elected.

The opinionby Attorney General Mann has exhaustively briefed the authoritiesupon which the ruling was based and, in addition,has carefully cited and discussed prior opinions of precedingAttorneys General and dlstinguishedtheir holdlngs. We conciLT

in the ruling by Attorney General Mann above referred to and adopt the followingquotationstherefrom:

"The determinationof 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 act that is, as comprising that completed series
s by virtue of which a personmay acquire the rlght to &&and u an office, then the Legislator is ineligibleto 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 Synonymouswith 'nom& nation,' that is, if it means no more than the act of. -

Hpn. Price Daniel, page 3 NW-305)

naming the personwho, if the other steps necessary to entitle him thereto are favorably completed,may take and hold the office, then the Legislatorwould be eligible, for the power to ‘nominate I is vested in this instance in the Chief Executivealone.

“In the determinationof the meaning to be ascribed to the.word ‘appointmentt as used In the second.clauseof Article 3, Section 18, the words ‘inwhole or in part,I used in the same clause,are of particular significance. By the applicationof well-known and commonlyunderstoodrules of gramma-

. tical construction,it is apparent that the words ‘Inwhole or in part’ modify the term precedingthem in the clause, towit, ‘appointment. I Ihe meaning of the clause, therefore may be grasped more readily by restating it as follows:,

!IIIf the whole or a part of the appointmentto
an office may be made by either branch ‘ofthe Legislature, no member of the Legislatureshall, during the term for which he’ie elected,be eligible to such office or place.’

“If the’

term ‘appointment, ( ‘usedin Article 3, Section 18, was intended to have no greatermeaning than ‘nomination,’ it is difficult, if not Impossible, to ascribe an> reasonablemeaning .tothe words ‘in part.I It is, therefore, importantto note that the framers of the Constitutioncontemplatedthat 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 Constitutionthat
an ‘appointment’

might consist of,several steps, the performanceof each of which was necessary,tovest In the person the right to take and hold the office or place, and that the performanceof one of these steps in the ‘appointment’ might be vest,ed

in one branch of the Le $islature. It is significantto note that Article Section 12, of the Constitution,Itself vests in the &enate the performanceof 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 Constitutionrequires the Senate to confirm or reject persons named by the Governor to fill vacancies In State or district offices,as a conditionprecedenttoHon. 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 * Constitutionhad in mind, by the very languageused by themselves,in such Constitution,one of the methods by which a branch of the Legislaturemight perform one of the steps necessary to entitle a person to take and, hold an office‘orplace. On the other hand, it is not easy to comprehendhow a branch of the Legislaturemight 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 Constitutionalprovision interpretationthereofmight accord withso that the the inten-. tion of its framersand the fullest protection afforded against the evils sough,t therein to be safeguarded against, the term ‘appointment’ should be construedas having the broadermeaning attributed to it above.
I,

. . . fp’Je are of the opinion that; where confirmation by either branch of the Legislatureis required to be had, under Article 4, Section 12, of our ConstiV&ion, a member of the Legislatureis ineligible to be named to fill such office or place.

“The ineiigibil.lty of the Legislator to such office or place extends throughoutthe entire period of time assigned by the people to the office of member of the Legislature,to which he was eiected. Zuch ineligibilitymay not be removed by resignation from~,the

office, for the Constitutiondoes 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,). :., -



### Hon. Rice Daniel., page 

### 5 (~~-305)

It is our opinion that no member of the Legislature is eligible for appointmentby you to an office In the Executive Departmentwhich requires confirmationby the Senate during the term of office for which the legislatorhas been elected, even though the Legislatureof which he is a member has not created the office or changed Its emoluments.

No member of the Legislatureis eligible for appointmentby the Governor to anoffice in the Executive Departmentwhich requires confirmation by the Senate during the term of office for which the legislatorhas been elected,even though'the Legislatureof 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