The opinion
PIXICE IDANfEL
December 13,'1950.
Hon. Allaa Shivers opin1011 no. v-1132.
Governor of Texas
Austin, Texas
:' Re: COnstltutlona~lty or that
,part of Article 118d, Sec-
tion 2, V.C.S., providing
ror the rliilng or vacan-
cies ia the Texas Citrus
DearGovernor Shivers: Commlsslon.
YOU have requested the oplnlon or this orrlce,
as r0ii0wfi:
'The Texas Citrus Co~lsslon vas created
;;lzHsz Bill 29, Acts or.the Flrty-rlrst Leg-
. In Section 2 the qualirlcatlons or
comm~sslon~ members~are set forth and the.Gov-
ernor is designated as the appolotlngauthor-
ity.
"In the same section, the statute states
that vacancies shall~be filled by a quorum of
the remaining members of the Texas Citrus Com-
mlsslon for t&e balance of the unexpired term
of the member whose office Is vacated.
"I would like your oplnlop as to whether
this partlcuJ@r p+tipn.or House Bill 29 Is
constitutional."
The provision you rerer to is from Section 2
of Article 118d, V.C.S., an4 reads, In part, as follovs:
(I The Governoi or the State of Texas
shall ippoint men with the quallrlcatlons stated
above to be members of said Commlsslon, by and
with the adv$ce and consent of the Senate. . . .
Thereafter, the term of orrlce of each appointee
shall be ror six (6) years and until their suc-
cessors are appointed and qualify. Vacancies
shall be filled by appointment by a quorum of
the remaining members of the Texas Citrus Com-
mission ror the balance of the unexpired term II
of the membee whose office Is vacated.
IEmphasis added throughout thls,oplnion.j ' '
Hon. Allan Shivers, Page 2, (V-1132).
The provision of the Constitution of Texas
pertinent to filling vacancies In State orrlces, or
which the members of the Texas Cltrus Commission are
unquestioned examples, Is Article Iv, Section 12, and
It reads, in part, as follows:
“All vacancies In State or district of-
rices, except members of the Legislature,
shall be filled unless otherwlse provided bx
law,
- by appointment of the Governor, . . .”
,,.
The Legislature, In the case of the Texas Clt-
rus Colmn~sslon, has provided that vacancles~occurring
therein shall be filled otherwise than by appointment of
the Governor. Provision r0r such legislative expression
Is, clearly found In the constitutional section just re-
cited, which constitutes unambiguous constitutional au-
thority for the provision concerning the Texas Citrus
Colmplsslon here In question.
A clear enunciation of the rule as to statutes
of the character under consideration here Is round In 67
c.J.s. 215, Ofiicers, Sec. 52, as r0ii0m:
“A constitutional provision that, when
an ~orrlce becomes vacant, the governor, un-
less otherwise provided by law, shall appoint
a person to fill the vacancy, who shall con-
tinue In office until a successor has been
elected or appointed, and has legally quall-
rled, was intended merely to prevedt vacancies
In office, and to provide a niethod for filling
them when no other provision Is mad& by law;
and thus It does not prevent the legislature
from teclarlng hoe a vacancy shall be rllled.
. . .
The foregoing expression Is supported the
, 208 MO. 708, 106 S.W. 3 4, 988
owing language Is found:
“The General Assembly ‘may take the ap-
pointing poner rrom the Governor, and the
power of filling vacancies In such cases may
be conferred on others than the executive.
In the exercise of the power to create or-
rices, they may declare when they are vacant
and who shall fill the vacancies.‘”
Hon. Allan Shivers, Page 3, (V-1132).
A very clear analogy Is also found:~ln the case
of People v. lose, 9'Cal. App. 1,48, 98 Pac. 241;244 (lgo8),
In which the Court held:-
>
" . . . Nor Is there any express provl-
slon In the Constitution applicable to the
case at bar providing for the appointment
or a controller In case or a vacancy. It
Is true that 'the Cohst%tutlon provldes'ln
section 8,'art.~ 5, as we have seen, for the
appolntietit to fill a vacancy when no mode
Is provided 'by the Constitution and law.'
But this Is Inoperative here, rorthe rea-
son that a mode has been provided by law ror
~rllllng a'vacancp. Uh th c tltutl,on
speaks of a mode provli:d bz lQ$z Constltu-
tlon and law' It obviously means 'the Con-
stitution or law."' or~co~se the law must
be In harmony wlththe Constitution; In .' ~'.'
other words, not opposed to any of Its pro-
tory' (artlcle~,l,:B22), but It-la a faialllar
prlnclple that the .organlc lav provides simply
a llmltatlon upon the~power or the Legislature,
which otherwise is supreme. There Is ,no man-
date nor proh,lbltlon, as we view It, In the'
Constitution that bars the right and author-
ity of the Legislature to provide for the con-
tingencies we haves suggested; The people,
therefore, through the lawmaking department
of the government, have the right to exercise
this privilege, which they have not surrendered.
'The declarationin article 4, 81, of the Con-
stitution; ' The legislative power of this state
shall be vested In a Senate and Assembly, which
shall be designated the Legislature of the state
of California," comprehends the exercise of all
the soverelgn'authorlty of the state In matters
which are properly the subject of legislation;
and It ls'locumbent upon any one who vlll chal-
lenge an act.,of the Legislature as being Invalid
to shop, either that such act ls~wlthout the
province 0r legislation, or that :the particular
.
3on. Allan Shivers, Page 4, (V-1132).
subject-matter of that act has been by the
Constitution, either bye express provision
or by necessary lmpllcatlod, withdrawn by
the people from the conslderatlvn of the
Legislature. The preeumptlcn which attends
every act of the Legislature Is that It Is
within Its power; and he who would exempt
It from the power must point out the par-
ticular provlslon of the,.Constltutlon by
which the exception la ,=ge, or demonstrate
that It-is palpably excluded from any con-
sIderatIon whatever by that body.' . . .
The leglslatlon to whickwe have referred
Is obviously Mlthln $he province of the Leg-
islature, and It Is not obnoxious to any
provision or the Constltutlon.' . . ."
It appears that the Constitution of Texas au-
thorizes the Legislature to provide the mode ror flll-
lng vacancies In State office.6 where there ls.nc other
constitutional mandate to the contrary, There Is no
provision In the Con'stlt.utlon ,of Te%as speclrlcally
establishing a mode for flllltrg~,vaoancles In the Texas
Citrus Commission. It Is, therefore,within the power
of the Legislature to provide the mcde.for rllllng va-
cancies In the Texas Cltru8 Comtssron. The ract that
the Legislature has provided that such vacancies shall
Abe filled by a quorum of the remaining members ofthe
Commlsslon.does not vitiate the proposed procedure vlth-
In the compreheaslon of any other provision of the Con-
stitution or Texas.
Article 118d, Section 2, V.C.S., pro-
vldlng,for the fllllng of.vacanoles In the
Texas Citrus Commlss$on by appointment by
a quorum of the remaining Commlsslon members
Is In harmony with the provisions of Artlale.
IV, Section 12, of the Constitution of Texas
and is constItutIonali
APPROVED: ,Yours very truly,
Red McDaniel PRICE DARIEL
State Afralrs Division Attorney General
Rverett Hutchlnson~
Executive Assistant
Charles D. ldathews
First Assistant
DJC:jmc