The Attorney General of Texas 

March 12, 1981 

MARK WHITE 

Attorney General 

Honorable H. Tati Santiesteban 

Chairman, Natural Resources 

Committee 

Senate of the State of Texas 

Austin, Texas 78711 

Opinion No. MW- 30 3 

Re: Status of recess appointees of 

Governor who are not confirmed by 

Senate in subsequent session of the 

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) If so, what steps are required for a successor to qualify for 

the office? (31 Is there a procedure by which the Senate can postpone 

consideration of a nominee for additional hearings without having that 

nominee replaced by another 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 is not in session, the appointee is entitled 

to the office until the Senate acts adversely upon his nomination. . . or until 

the Governor makes a new appointment.” Id. at 3. 

Article IV, section 12 provides: 

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 of twothids of the Senate present. If made during the 

p. 966 
Honorable H. Tati Santiesteban - Page Two (MW-303) 

recess of the Senate, the said 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 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 

some other person to fill the vacancy until the next session --=F o 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. 

(Emphasis added). 

Article XVI, section 17 provides: 

All officers within this State shall continue to perform the duties 

of their offices until their successors shall be duly qualified. 

Read together, these provisions lead to the conclusion that failure to act on the 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 a holdover until a successor is appointed by the Governor or, if no other person is 

appointed, until the appointee is rejected by the 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, 397 S.W.2d 940 (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 is in 

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 is left 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 be properly submitted to the Senate during its next session. 

We find no authority ln the Constitution or statutes which would permit 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 

P. 967 
Honorable H. Tati Santiesteban - Page Three (MW-303) 

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 on a recess appointment of the 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 of office. There is no procedure by which the 

Senate can postpone consideration of a nominee 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. GRAY III 

Executive Assistant Attorney General 

Prepared by Bob Gammage 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

Susan L. Garrison, Chairman 

David B. Brooks 

Bob Gammage 

Rick Gilpin 

C. Robert Heath 

p. 968