May 24, 1990

Honorable William P. Hobby Lieutenant Governor P. 0. Box 12068 Austin, Texas 78711
Honorable Bob Bullock Comptroller of PublicAccounts L.B.J. State Office Building Austin, Texas 78774 Opinion No. JM-1179

Re: Applicability of Attorney General Opinion JM-1161 (1990)

Honorable Chet Edwards Chairman Nominations Committee Texas State Senate P. 0. Box 12068 Austin, Texas 78711

Gentlemen:
Each of you has requestedadvice in regard to Attorney General Opinion JM-1161 (1990). Mr. Bullock has asked several questions about the effect of the opinion in particular circumstances. Governor Hobby and Senator Edwards have asked that the opinion be reconsidered in regard to the intentof the drafters of the constitutionand in the light of long-standingpractices of the senate.
No argumentshave beenpresented that persuadeus to reconsider Attorney General Opinion JM-1161. We conclude, however, that the opinionshould be applied prospectively only, asof Mayl, 1990,land that recess appointees who were not confirmed as of that date may be confirmed in the special session of the legislaturethat began on that date.

In Chevron Oil Co. v. Huson, 404 U.S. 97 (1971), the United States Supreme Court set out three factors to be considered in determining whether a decision is to be

1. Attorney General Opinion JM-1161 was dated April 20, 1990, but was notpubliclyreleased until May 1, 1990.

P. 6212Honorable Wil-liam--P-=Hobbjr. ~~~--~(;113:.1129,). Honorable Bob Bullock Honorable Chet Edwards Page 2

applied retroactively. A recentTexas case applied the Huson test. First Bank of Deer Park v. Deer Park Indeo. School Dist., 770 S.W.Zd 849 (Tex. APP. - Texarkana 1989, writ denied). First, to be applied prospectively only, a decision must establish a newprinciple of law, either by overruling a past decision on which there may have been reliance or by deciding an issue of first impression. w, suora, at 106. Attorney General Opinion JM-1161 overruled several attorney general opinions. General Opinions MW-303 (1981);H-948 (1977). TheAt%~ held:
If the Senate fails to act on a recess

appointment or on an appointmentmade during the session of an individual to succeed himself in office, the individual can continue to exercise the duties of office pursuant to the requirementsof article 16, section 17, of the Texas Constitution, until the Senate subsequently rejects the nomination or until the Governor appoints another individual. Attorney General Opinion H-948, at 4. The senate, the governor, and various appointeeshave relied on that opinion for the proposition that an appointee could continue to serve as a de Sure officereven though the senate failed to take any action on his appointment in the session immediately followinghis appointment. Therefore, the first criterion forprospective applicationhas been met.
The second factor to be considered is whether retroactive applicationwould furtheror retard the operation of the rule. Buson. suora, at 106-07. We do not think that retroactive applicationwould further the purpose of article IV, section 12, of the Texas Constitution,which is to ensure that both the senateand the governor consider the qualifications of persons entrusted with carrying out governmental functions. To applyAttorney General Opinion JM-1161 retroactively would leavenumerous state offices vacant for reasonsnot relatedto the qualificationsof the persons who had been appointedto those offices. Prospective application, on the other hand, will restore the constitutionalbalance of powerby allowing the senate to consider the qualificationsof those appointees.
The third factor to consider is whether retroactive application wouldwork an injusticeor hardship. Huson at 107. If the decisionwe affirm today were to beplied retroactively,dozens, perhapshundreds, of officeswould be

p. 6213HonorableWilliaR P, Bobby .; ..(JX,lU9) Honorable Bob Bullock : Honorable Chet Edwards Page 3

vacant, and the validity of many decisionswould be called into question. Conceivably, costly litigationwould ensue. Thus, in our view, retroactive application of Attorney General Opinion JM-1161 would produce substantial inequitable results. Accordingly,we hold that all recessappointeesof the governorwho were not yet confirmed but were properly holding office on May 1, 1990, under the principles enunciated inAttorney General Opinions MW-303 and H-948, were de iure officers as of that date. Thosewho had not been properly confirmed as of that datemay be confirmed in the special session that began onMay 2, 1990. If a recess appointeewho has not yet been confirmed is not confirmed in this session, the office will becomevacant upon the adjournmentof the senate. Inaction by the senatewill be tantamount to rejection.

In light of our conclusion that Attorney General Opinion JM-1161 is to be appliedprospectivelyonly, it is not necessary to addressMr. Bullock'squestions.
SUMMARY Attorney General OpinionJM-1161 (1990)is affirmed. However, it should be applied prospectivelyonly. Recess appointeesof the governorwho were not yet confirmedbut were properly holding office onWay 1, 1990,under the principles in AttorneyGeneral Opinions WW-303 and H-948, were de iure officers as of that date. Those who had not been properly confirmed as of that datemay be confirmed in the special session that began on May 2, 1990. If a recess appointeewho has not yet been confirmed is not confirmed in this session, the office will becomevacant upon the adjournment of the senate.
Ve truly yo r , 

# J /btdbc

& JIM MATTOX AttorneyGeneral of Texas

MARY KELLER FirstAssistantAttorney General

P. 6214Honorable

Honorable Honorable Page 4 William P. Hobby (JM-1179)

Bob Bullock Chet Edwards

JUDGE ZOLLIE STEAKLEY Special AssistantAttorney General

RENEA HICKS Special AssistantAttorney General
RICK GILPIN Chairman, Opinion Committee Preparedby Rick Gilpin and Sarah Woelk AssistantAttorneys General

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