# The Attorney General of Texas March 12, 1981

MARK WHITE Attorney General Honorable H.Tati Santiesteban Chairman, Natural Resources Committee Senate ofthe State ofTexas Austin, Texas 78711 Opinion No. MW- 303 Re: Status ofrecess appointees of Governor whoare not confirmed by Senate in subsequent session ofthe legislature Dear Senator Santiesteban: Your opinion request sets out the following set of circumstances: The Governor has made a recess appointment requiring the Senate’s confirmation, has duly submitted the nomination to the Senate at the next session of the legislature, and the Senate fails to finally act on the appointment prior to its adjournment. You ask whether: (1)Under these circumstances, a vacancy was created by the Senate’s failure to act on the appointment prior to its adjournment? (2)Ifso, what steps are required for asuccessor to qualify for the office? (31Is there a procedure by which the Senate can postpone consideration of a nominee for additional hearings without having that nominee replaced byanother gubernatorial nominee? The substance of your first two questions was dealt with in Attorney General Opinion M-267 (1968), when the Senate of the 60th Legislature failed to act on a duly submitted appointment of a member to the Public Safety Commission. That opinion concluded that under article IV,section 12, and article XVI, section 17 of the Texas Constitution, “iwlhere the appointment is a recess appointment or one made to fill a vacancy ln the office occurring while the Senate isnot insession, the appointee isentitled to the office until the Senate acts adversely uponhisnomination.

..oruntil the Governor makes anew appointment.” Id. at 3. Article IV,section 12provides:

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 appointment, if made during its session, shall be with the advice and consent oftwothids of the Senate present. If made during the

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recess of the Senate, the said appointee, or some other person to fill such vacancy, shall benominated to the Senate during the first ten days of its session. Ifrejected, said office shall immediately become vacant, and the Governor shall, without delay, make further nominations, until a confirmation takes place. But should there be no confirmation during the session of the Senate, the Governor shall not thereafter appoint any person to fill such vacancy who has been rejected by the Senate; but ma --=F some other person to fill the vacancy until the next session o the Senate or until the regular election to said office, should it sooner occur. Appointments to vacancies inoffices elective bythe people shall only continue until the first general election thereafter. (Emphasis added). Article XVI,section 17provides: All officers within this State shall continue to perform the duties oftheir offices until their successors shall bedulyqualified. Read together, these provisions lead to the conclusion that failure to act onthe part of the Senate constitutes neither confirmation nor rejection, that the Governor must submit that appointee’s name, or some other person’s name, to the Senate at its next session, and that the appointee whose name was previously submitted shall continue to serve as aholdover until asuccessor is appointed bythe Governor or, ifnoother person is appointed, until the appointee isrejected bythe Senate. Under article IV, section 12,a vacancy is created in the office only if the Senate takes the affimative action of rejecting the appointee. Constitutional or statutory orovisions restrictins the rieht to hold Dublic office should be strictlv construed aaainst -hieligibility. Kothminn v. camels, 397S.W.2d940 (Tex. Civ. App.-&I Antonio 196v5, no writ); Attorney General Opinions M-267 (1968);V-868 (1949). In a case where another person is appointed by the Governor while the Senate isin recess, that person, if otherwise qualified, will succeed to the office upon taking the constitutional oath. Attorney General Opinion O-3183(1941). In a case where the Senate has adjourned without taking either affirmative or negative action on a recess appointment properly submitted for its consideration, the Governor isleft with the prerogative to allow that person to continue to serve during the recess period or to appoint another qualified person to the office. In either case, the name of the person whom the Governor wishes to fill the office for the specified term must beproperly submitted to the Senate during its next session. Wefind no authority ln the Constitution or statutes which wouldpermit the Senate to postpone consideration of a nominee for additional hearings without having that nominee subjected to possible replacement by another gubernatorial nominee. See Walker v. Baker, 196 S.W.2d 324, 328 (Tex. 1946). (‘Tn other words, since the C!%&tution

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specifies the circumstances under which the ~Senate may defeat the Governor’s appointments, there is an implied prohibition against its power to add to those circumstances.“) SUMMARY

The Senate’s failure to act onarecess appointment ofthe Governor prior to adjournment does not create a vacancy in the office, but the occupant continues to perform the duties of the office under article XVI, section 17 of the Texas Constitution until he is confirmed or rejected by the Senate at its next session or until a successor is appointed by the Governor and qualifies by taking the constitutional oath ofoffice. There is no procedure by which the Senate can postpone consideration of anominee beyond its session which would preclude that nominee being replaced by another gubernatorial appointee. 

# veTYtruH

MARK WHITE Attorney General 0f’Texa.s JOHN W.FAINTER, JR. First Assistant Attorney General RICHARD E.GRAYIII Executive Assistant Attorney General Prepared by BobGammage Assistant Attorney General APPROVED: OPINIONCOMMITTEE Susan L.Garrison, Chairman David B.Brooks BobGammage Rick Gilpin C.Robert Heath

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