May 24, 1990 

Honorable William P. Hobby 

Lieutenant Governor 

P. 0. Box 12068 

Austin, Texas 78711 

Honorable Bob Bullock 

Comptroller of Public Accounts 

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 requested advice 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 intent of the drafters of the constitution and 

in the light of long-standing practices of the senate. 

No arguments have been presented that persuade us to 

reconsider Attorney General Opinion JM-1161. We conclude, 

however, that the opinion should be applied prospectively 

only, asof Mayl, 1990,l and that recess appointees who 

were not confirmed as of that date may be confirmed in the 

special session of the legislature that 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 not publicly released until May 1, 1990. 

P. 6212 
Honorable Wil-liam--P-=Hobbjr. ~~~--~(;113:.1129,). 

Honorable Bob Bullock 

Honorable Chet Edwards 

Page 2 

applied retroactively. A recent Texas 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 new principle 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 appointment made during 

the session of an individual to succeed 

himself in office, the individual can 

continue to exercise the duties of office 

pursuant to the requirements of 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 appointees have relied on that opinion 

for the proposition that an appointee could continue to 

serve as a de Sure officer even though the senate failed 

to take any action on his appointment in the session 

immediately following his appointment. Therefore, the first 

criterion for prospective application has been met. 

The second factor to be considered is whether retroactive application would further or retard the operation of 

the rule. Buson. suora, at 106-07. We do not think that 

retroactive application would further the purpose of article 

IV, section 12, of the Texas Constitution, which is to 

ensure that both the senate and the governor consider the 

qualifications of persons entrusted with carrying out 

governmental functions. To apply Attorney General Opinion 

JM-1161 retroactively would leave numerous state offices 

vacant for reasons not related to the qualifications of the 

persons who had been appointed to those offices. Prospective application, on the other hand, will restore the 

constitutional balance of power by allowing the senate to 

consider the qualifications of those appointees. 

The third factor to consider is whether retroactive 

application would work an injustice or hardship. Huson at 

107. If the decision we affirm today were to beplied 

retroactively, dozens, perhaps hundreds, of offices would be 

p. 6213 
Honorable WilliaR P, Bobby .; ..(JX,lU9) 

Honorable Bob Bullock : 

Honorable Chet Edwards 

Page 3 

vacant, and the validity of many decisions would be called 

into question. Conceivably, costly litigation would ensue. 

Thus, in our view, retroactive application of Attorney 

General Opinion JM-1161 would produce substantial inequitable results. 

Accordingly, we hold that all recess appointees of the 

governor who were not yet confirmed but were properly 

holding office on May 1, 1990, under the principles 

enunciated in Attorney General Opinions MW-303 and H-948, 

were de iure officers as of that date. Those who had not 

been properly confirmed as of that date may be confirmed in 

the special session that began on May 2, 1990. If a recess 

appointee who has not yet been confirmed is not confirmed 

in this session, the office will become vacant upon the 

adjournment of the senate. Inaction by the senate will be 

tantamount to rejection. 

In light of our conclusion that Attorney General 

Opinion JM-1161 is to be applied prospectively only, it is 

not necessary to address Mr. Bullock's questions. 

SUMMARY 

Attorney General Opinion JM-1161 (1990) is 

affirmed. However, it should be applied 

prospectively only. Recess appointees of the 

governor who were not yet confirmed but were 

properly holding office on Way 1, 1990, under 

the principles in Attorney General Opinions 

WW-303 and H-948, were de iure officers as of 

that date. Those who had not been properly 

confirmed as of that date may be confirmed in 

the special session that began on May 2, 

1990. If a recess appointee who has not yet 

been confirmed is not confirmed in this 

session, the office will become vacant upon 

the adjournment of the senate. 

Ve truly yo r , J & /btdbc 

JIM MATTOX 

Attorney General of Texas 

MARY KELLER 

First Assistant Attorney General 

P. 6214 
Honorable 

Honorable 

Honorable 

Page 4 

William P. Hobby (JM-1179) 

Bob Bullock 

Chet Edwards 

JUDGE ZOLLIE STEAKLEY 

Special Assistant Attorney General 

RENEA HICKS 

Special Assistant Attorney General 

RICK GILPIN 

Chairman, Opinion Committee 

Prepared by Rick Gilpin and 

Sarah Woelk 

Assistant Attorneys General 

.- 

P. 6215