## THE ATTY)RNEY GENERAL OF %%XAS

cEbawYoRu c. MARTIN AUSTIN. TEXAR 78711 Ax-l-ORniBX

GGNERAX. August 13, 1968

Honorable John Connally OpinionNo. M- 267,, Governor of Texas Capitol Station Re: Whether Honorable J. C. Looney Austin, Texas Is a member of the’~Publlc Safety Ctimmission’ where ‘the Senate failed~

to ‘confirm‘or’ reject his nomination’,as’reguired by Article 4413(2), Dear Governor Connally: V.C.S.

In your request for an opinion you state the following:
“OnNovember 27, 1967, I appointedMr. J.,C. Looney of Edlnburg, Hldalgo County, to the Public Safety Commlssion’to fill the unexpired term of Mr. John Peace’, who resigned. The term will expire December 31, 1969: By message to the Senate of the 60th Legislature, First Called Session, dated June 5, 1968, I asked the advice, consent, and confirmation of the Senate with respect to this appolntment~. At the time of its adjournment sinedie on July 3, 1968, the Senatehad not acted to either confirm or reject his appointment. I have not requested Mr. Looney’s resignation,nor have I appointed anyone else to fill the unexpired term. ‘%r. Looney was appointed ursuant to the followingprovision of Article E413(2),Vernon’s Civil Statutes:
‘Inthe event of a vacancy occurring on said Commission, the Governor shall appoint a new member of the Commission to fill the said vacancy for suchunexpired term, such appointment to be subject to the advice and consent of the Senate of the State of Texas, at the next&ession thereof;’ “Under the facts which I have set out, please giveme your opinion as to the following questions:

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Honorable John Connally,page 2 (M-267)

1. IsMr'J. C. Loon&a Public Safety Commlasionuntil is named and has aualifled? member'cf~the his successor

2.~ Does Mr. J. C. Looney's nomination stlll~ pend before~the Senate during the Leglslature'snext session?"
Texas Constitution,Article IV, Section 12, provides as follows: "All vacancies in State or district offices, exceptmembers'of the Legislature, shall'be filled unless otherwiseprovided by law, by appointment .ofthe Governor,which'appolntment, if~madedurlng its session, shallbe with the advice and consent of two-thirds of the Senate present. 'Ifmade during the recess'of the Senate; the sald:appointee, or some otherperson to fill such vacancy, shallbe ., nominated to the Senate during the first ten days of Its session. If rejected, said offlce shall' immediatelybecome vacant, and the Gcvernoc shall, without delay, make furthernom~inations, tint11 a .' confirmation,

takes place. But should there be no confirmationduring the sesslon'ofthe Senate;~the Governor shallnot thereafter appoint any person to fill such vacancywho has been rejected by the Senate;but may appoint some other person to fill the vacancyuntil the next session of the Senate or until the regular election to said office, should it sooner occur. Appointments to vacancies in offices elective by the people shall only continue until the first general election thereafter."
Texas Constitution,ArticleXVI, Section 17,provides that all officerswithin this State shall continue to perform the duties

,,of their officesuntil their successors shallbe duly qualified.

In Attorney General's OpinionNumber V-868 (19&g),this office held that a recess appointeerequiring Senate conflrmatlon, who was appointed to succeedhimself and whose name was withdrawn with the consent of the Senate, continued to hold over in office until his successorwas duly appointed and qualified. In passing upon a question very similar to the one under consideration, said Attorney General's OpinionNumber V-@% held, in part, at page 9 as follows: 86%

II :

. . .
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~"Clearly,then, unless'there is anexpress rejection, Art. IV, Sec. 12;must be construed together with Art. XVI,~Sec. 17, as indicatedby Conference Opinion 1809. Where, as here;the Senate takes no action on the appointment; the' appointee holds over pursuant to Art. XVI, Sec.. 17, until he reslgns,.dies;abandons the office, or until his successor is appointed." The adjournment of the~Senatewithout conflrming'the'appointment of a successor to an office holding over after the~exipiratlon of his term does not create a vacancywhich can'be'filled by the Governor alone. Where the appointment Is a recess appolntment or onemade to fill a vacancy inthe office occurringwhile the Senate is not In session, the appointee is entitled to'the officeuntil the Senatesacts adversely'uponhis nomination, ,38 Am:Jur:2d 937, Governor, Sec. 7; 42 Am.Jur. 983, Public'Offlcers, Sec. 142; or until the Governormakes a new appointment. Tex. Const.,Art. IV, Sec. 12.

In a Missouri case, State ex rel Sikes v,Willlams,.‘222~ MO. 268, 121 S.W. 64, 68 (19Oy),the Court disposed of this question as follows:

"In the meantime, such appointee, after having otherwise qualifiedunder the act, is entitled to the office until such time as t9e Senatemay pass adverselyupon his appointment. Since the Constitution specifies the circumstancesunder which the Senatemay defeat the Governor'srecess appointments, there is an Impliedprohibition against the Senate's power to add to these circumstances. Walker v. Baker, 145 Tex. 121, 196 S.W.2d 324 (1946). Constitutional or statutoryprovisions restricting the right to hold Public office shouldbe strictly construedagainst ineligibility.-Kothmann v. Danlels, 397 S.W.2d 940 (Tex.Civ.App. 1965, no writ). Your first question is answered in the affirmative.

We answer your second question in the negative for the reason that thematter must be resubmittedby the Governor to the next Senate for action. He may submit the same or some other name within the first ten days of the next legislative session.

Honorable J. C. Looney is a member of the Public Safety Commission, the Senate failing to confirm or reject his appointmentby the Governor

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.to'fillthe vacancy as required by Article 4413(P), .Vernon'sCivil Statutes. The nominationno longerpends before the Senate and it is incumbentupon the Governor to submit the same or some other name within the first ten days of the next legislative session.
VeH truly yours,

C. MARTIN General of Texas Preparedby Jack Sparks AssistantAttorney General
APPROVED: OPINION COMMITTEE Hawthorne Phillips, Chalrman Kerns Taylor,Co-Chairman John Fainter Tom Thurmond Mark White John Banks
A. J. CARUBBI, JR. Executive Assistant

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