THE ATTY)RNEY GENERAL 

OF %%XAS 

cEbawYoRu c. MARTIN AUSTIN. TEXAR 78711 

Ax-l-ORniBX GGNERAX. 

August 13, 1968 

Honorable John Connally Opinion No. 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: 

“On November 27, 1967, I appointed Mr. 

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 sine die on July 

3, 1968, the Senate had 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 

following provision of Article E 413(2), Vernon’s 

Civil Statutes: 

‘In the event of a vacancy occurring on 

said Commission, the Governor shall appoint a 

new member of the Commission to fill the said 

vacancy for such unexpired 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 give me 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 Commlasion until 

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's next session?" 

Texas Constitution, Article IV, Section 12, provides as 

follows: 

"All vacancies in State or district offices, 

except members' of the Legislature, shall'be filled 

unless otherwise provided by law, by appointment 

.of the Governor, which'appolntment, if ~madedurlng 

its session, shall be with the advice and consent 

of two-thirds of the Senate present. 'If made 

during the recess'of the Senate; the sald:appointee, 

or some other person to fill such vacancy, shall be ., 

nominated to the Senate during the first ten days 

of Its session. If rejected, said offlce shall' 

immediately become vacant , and the Gcvernoc shall, 

without delay, make further nom~inations, tint11 a .' 

confirmation, takes place. But should there be no 

confirmation during the sesslon'of the Senate;~the 

Governor shall not thereafter appoint any person 

to fill such vacancy who has been rejected by the 

Senate; but may appoint some other person to fill 

the vacancy until 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, Article XVI, Section 17, provides that 

all officers within this State shall continue to perform the duties 

,, of their offices until their successors shall be duly qualified. 

In Attorney General's Opinion Number V-868 (19&g), this 

office held that a recess appointee requiring Senate conflrmatlon, 

who was appointed to succeed himself and whose name was withdrawn 

with the consent of the Senate, continued to hold over in office 

until his successor was duly appointed and qualified. In passing 

upon a question very similar to the one under consideration, said 

Attorney General's Opinion Number V-@% held, in part, at page 9 

as follows: 86% 

II : 

. . . 

-1301- 
Honorable John Connally, Page 3 (M-267) 

~"Clearly, then, unless'there is anexpress 

rejection, Art. IV, Sec. 12; must be construed 

together with Art. XVI,~Sec. 17, as indicated by 

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 ~Senate without conflrming'the' appointment of a successor to an office holding over after the~exipiratlon of his term does not create a vacancy which can'be'filled 

by the Governor alone. Where the appointment Is a recess appolntment or one made to fill a vacancy inthe office occurring while 

the Senate is not In session, the appointee is entitled to'the 

office until the Senates acts adversely'upon his nomination, ,38 

Am:Jur:2d 937, Governor, Sec. 7; 42 Am.Jur. 983, Public'Offlcers, 

Sec. 142; or until the Governor makes 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 qualified under the act, is entitled to 

the office until such time as t9e Senate may pass 

adversely upon his appointment. 

Since the Constitution specifies the circumstances under 

which the Senate may defeat the Governor's recess appointments, 

there is an Implied prohibition against the Senate's power to add 

to these circumstances. Walker v. Baker, 145 Tex. 121, 196 S.W.2d 

324 (1946). Constitutional or statutory provisions restricting the 

right to hold Public office should be strictly construed against 

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 the matter must be resubmitted by 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 appointment by the Governor 

-1302- 
Honorable John Connally, page 4 (M-267) 

.to'fill the vacancy as required by Article 4413(P), 

.Vernon's Civil Statutes. 

The nomination no longer pends before the Senate 

and it is incumbent upon 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 

Prepared by Jack Sparks 

Assistant Attorney 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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