DAN MORALES

ATTORSEY GENERAL 

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ofttp JZIttornepQikneral &date’ ofEexas February 23, 1993

Honorable Gonzalo Barrientos Chairman Committee onNominations 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 inaregular or special session.” Article IV, section 12ofthe Texas Constitution provides, inpart:

(a) All vacancies in State or district offices, except members of the Legislature, shag be filled unless otherwise provided by law by appointment ofthe Govemor. (b) An appointment ofthe Governor made during a session of the Senate shall be with the advice and consent oftwo-thirds ofthe Senate present. (c) In accordance with this section, the Senate may give its advice and consent on an appointment ofthe 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 theswcuncy,to the Senateduring the@ ten &s of its nextsessionfollowing 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 fillthe vacancy during the firstten days ofeach subsequent session of the Senate until a confnmation occurs. If the Governor does not nominate aperson to the Senate during the first ten days of
a session ofthe Senate as required by this subsection, the Senate at that session may consider the recess appointee aaifthe Governor had nominated the appointee.

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(d) If the Senate, at any special session, does not take 6nal action to contIrm or reject apreviously 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 ifnot 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 asubsequent session; or (B) the Governor appoints another person to till the vacancy under Subdivision (I) ofthis subsection (e) Ifthe Senate, at aregular 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 ofthe appointee “or some other person.” Furthermore, if the governor fails to submit any name, the senate “mayconsider the recess appointee as if the Governor had nominated the appointee.” Subsections (d) and (e) descrilx the consequences of senate inaction in,respectively, aregular session and aspecial session.
As anexample, you indicate that, inMay 1992,the governor appointed aparticular 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

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otherpersonto tillthe vacancy,” contemplates that the governor hasno 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 aprior appointee, it seems obvious that shemaynominate hersecond appointee rather than herfirst. Attorney General Opinion JM-I 161(1990) isnot to the contrary. In that opinion, the attorney general considered anattempt by afirst appointee to resign hisoffice 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) ofthe 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 thedejure office holder asofthe date ofhisappointment. Attorney General Opinion JM-1I61 is instructive in determining whether the acts ofthe first appointee mustbe subsequently “validated” bythe legislature. Under the terms ofarticle IV, section 12,the first appointee wasthe dejure office holder until the second appointee was appointed to and qualified for the position. Since the legislature did not convene at anytime during the first appointee’stenure, no legislative action regarding this appointee was either necessary or proper. Sincethe first appointee held the office dejure during hisbrieftenure, asubsequent “rejection” ofthat briefappointment would, under the constitution, have no effect.

SUMMARY

When the governor appoints anindividual to aposition 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 isno requirement that the name ofthefirsr appointee be submitted to the legislature. Acts ofthe first appointee need not be validated by the legislature for any period in which that person heldthe position dejure.

DAN MORALES Attorney General ofTexas

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WILL PRYOR Fii Assistant Attorney General
MARYKELLER Deputy Assistant Attorney General
RENEAHICKS Special Assistant Anomey General
MADELEINE B.JOHNSON Chair, Opiion Committee Prepared byRick Gilpin Assistant Attorney General

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