DAN MORALES 

ATTORSEY GENERAL 

QBffice of ttp JZIttornep Qikneral 

&date’ of Eexas 

February 23, 1993 

Honorable Gonzalo Barrientos 

Chairman 

Committee on Nominations 

Texas State Senate 

P.O. Box 12068 

Austin, Texas 78711 

Dear Senator Bari-ientos: 

opinion No. DM-203 

Re: Status of “recess gubematorisJ 

appointees who are replaced by other 

nominees before the senate has had the 

opporhmity to contirm or reject them in a 

regular or special session” (RQ-490) 

You have requested our opinion as to the status of “recess gubernatorial 

[appointees] who are replaced by other nominees before the Senate has @tad] the 

opportunity to contirm or reject them in a regular or special session.” Article IV, section 

12 of the Texas Constitution provides, in part: 

(a) All vacancies in State or district offices, except members of 

the Legislature, shag be filled unless otherwise provided by law by 

appointment of the Govemor. 

(b) An appointment of the Governor made during a session of 

the Senate shall be with the advice and consent of two-thirds of the 

Senate present. 

(c) In accordance with this section, the Senate may give its 

advice and consent on an appointment of the Governor made during 

a recess of the Senate. To be contkned, the appointment must be 

with the advice and consent of two-thirds of the Senate present. If 

an appointment of the Governor is made during the recess of the 

Senate, the Governor shag nominate the uppoimee. or some other 

person toflll the swcuncy, to the Senate during the@ ten &s of 

its next session following the appointment. If the Senate does not 

confirm a person under this subsection, the Governor shah nominate 

in accordance with this section the recess appointee or another 

person to fill the vacancy during the first ten days of each subsequent 

session of the Senate until a confnmation occurs. If the Governor 

does not nominate a person to the Senate during the first ten days of 

a session of the Senate as required by this subsection, the Senate at 

that session may consider the recess appointee aa if the Governor had 

nominated the appointee. 

P. 1072 
Honorable Gonzalo Barrientos - Page 2 (DM-203) 

(d) If the Senate, at any special session, does not take 6nal 

action to contIrm or reject a previously uncontimted recess appointee 

or another person nominated to 6ll the vacancy for which the 

appointment was made: 

(1) the Governor after the session may appoint another person 

totillthevaclurcy.and 

(2) the appointee, if otherwise qualikl and if not removed as 

provided by law, is entitled to continue in office until the earlier of 

the following occurs: 

(A) the Senate rejects the appointee at a subsequent session; or 

(B) the Governor appoints another person to till the vacancy 

under Subdivision (I) of this subsection 

(e) If the Senate, at a regular session, does not take tInal action 

to wn6rm or reject a previously unconSrmed recess appointee or 

another person nominated to till the vacancy for which the 

appointment was made, the appointee or other perso& as 

appropriate, is considered to be rejected by the Senate when the 

Senate session ends. 

(t) If an appointee is rejected, the office shall immediately 

become vacant, and the Governor shall, without delay, make tiuther 

nomhations, until a cot&nation takes place. Ifa person has been 

rejected by the Senate to till a vacancy, the Governor may not 

appoint the person to fill the vacancy or. during the term of the 

vacancy for which the person was rejected, to fill another vacancy in 

the same office or on the same board, commission, or other body. 

[Emphasis added.] 

When the Governor makes a recess appointment, subsection (c) requires that she 

submit to the senate, during the tirst ten days of the next setion following the 

appointment, either the name of the appointee “or some other person.” Furthermore, if 

the governor fails to submit any name, the senate “may consider the recess appointee as if 

the Governor had nominated the appointee.” Subsections (d) and (e) descrilx the 

consequences of senate inaction in, respectively, a regular session and a special session. 

As an example, you indicate that, in May 1992, the governor appointed a particular 

individual to be Commissioner of Health and Human Services. That appointee resigned 

the following month and another person was immediately appointed to till the vacancy. In 

our opinion, nothing in article IV, section 12, or any other provision would require the 

governor to submit to the senate the name of the first appointee. In addition, the 

constitutional language, by directing the governor to “nominate the appointee, or some 

P. 1073 
Honorable Go40 Barrientos - Page 3 (DM-203) 

otherperson to till the vacancy,” contemplates that the governor has no duty to submit the 

name of a previous appointee. If, under subsection (c), she may nominate a person who 

has never previously held the position rather than a prior appointee, it seems obvious that 

she may nominate her second appointee rather than her first. 

Attorney General Opinion JM-I 161 (1990) is not to the contrary. In that opinion, 

the attorney general considered an attempt by a first appointee to resign his office during a 

special legislative session. The opinion declared that, because the attempted resignation 

was not in writing, it did not effect a valid surrender of the office under the terms of 

subsection 201.001(a) of the Election Code. In the situation you pose, we will presume 

that the first appointee submitted a written resignation. Under those circumstances, the 

second appointee became the dejure office holder as of the date of his appointment. 

Attorney General Opinion JM-1 I61 is instructive in determining whether the acts 

of the first appointee must be subsequently “validated” by the legislature. Under the terms 

of article IV, section 12, the first appointee was the de jure office holder until the second 

appointee was appointed to and qualified for the position. Since the legislature did not 

convene at any time during the first appointee’s tenure, no legislative action regarding this 

appointee was either necessary or proper. Since the first appointee held the office dejure 

during his brief tenure, a subsequent “rejection” of that brief appointment would, under the 

constitution, have no effect. 

SUMMARY 

When the governor appoints an individual to a position while the 

legislature is in recess, that person resigns the position before the 

legislature next convenes, and a second appointee is named to the 

position, there is no requirement that the name of thefirsr appointee 

be submitted to the legislature. Acts of the first appointee need not 

be validated by the legislature for any period in which that person 

held the position dejure. 

DAN MORALES 

Attorney General of Texas 

p. 1074 
Honorable Godo Banientos - Page 4 (DM-203) 

WILL PRYOR 

Fii Assistant Attorney General 

MARYKELLER 

Deputy Assistant Attorney General 

RENEAHICKS 

Special Assistant Anomey General 

MADELEINE B. JOHNSON 

Chair, Opiion Committee 

Prepared by Rick Gilpin 

Assistant Attorney General 

P. 1075