OFFICE OF THE ATTORNEY GENERAL OF TEXAS 

AUSTIN 

Honorable Tom 0. King 

Cepitol Building 

Auetin, Tezas 

Dear Mr. King: 

We beg'to reply 

requesting our opinion as 

fiae of State Auditor and 

pointed and has qua1 

Your prior term in t 

which time you 

9ouraelf, afte 

on January 22, 

senate ror conri 

tion was rejeote 

<e&&f&-;: &tU aontinoe 

t0 ~ITOJ!IC he aties Or their Off$es until their 

oted zib-zzy~ Section o.t the Constitution is a 

When an incumbent offioer*s regular term 

ooemor does not immediately qnallry, unquesve section applies in such way as to reqaire 

the incumbent to aontinue the perfonnanae of the datiea of th, 

0rriOe until his suaeessor quallfiee. MoCee vs. Dickey, 18 

S. w. 4C4; Vem vs. Featherston, 69 5. W. 885; State vs. Jordan, 

28 9. W. (2) 921. 
_- -. 

612 

Honorable Tom C. King, page 2 

But, we have another Seation in oar ConstIlmtIon __ apeoiticallg oovering the Identical prOblem at band. Article 

4, Section 12, reads: 

*All vacancies in State or dfstrict offices, 

except mwabers 0r the Legislature, shall be tilled 

unless otherwise provided by law, by appoIntwe& 

of the Governor, which appointwent, if ade during 

its session, shall bye with the adriee end consent 

0r two-thirds Or the.Senate present. It m3de during the reoess of the Senate, the said appointee, 

or some other person to fill sneh vaczmoy, shell 

be nominated to the Senate durIag the tirstten days 

or its session. Ii rejeoted, said orflee shall 

Mediately become vacant,, end the Governor shall, 

wIthout delay, make rurther nowiaations, u.atIl a 

ooufirmation takes place. hut should there be ao 

con?iwation during the sessfou of the Seaate, the 

Governor shall not theretiter apgoiat any person' 

to flll suoh vaoaucy who has beea rejected by the 

Senate;.but may appoint mme other person to flll 

the vacciIloy.uMIl the next session 02 the Senate 

or until the regular election to said offlce, should 

it sooner oc.our. Appointments to rac.ancIes in Orfloes eleetive by the people shall only continue 

until the timt general election tlmreafter.w 

Sinae you were appointed d&mg the recess or the 

Se&&, nominated to the Senate at its pmsent session and by 

that body rejeated. YOU have come sauamly into that Dart of 

said section-wherein- It vrovides t&it gIireieeted. s&d orWhile a diii lerent _~~~ 

7s. State, 61s. W. 

Ian-age In the opinion 

In that case, written by Mr. Justice 2aqh, Is peztinent: 

"The language, -'Ir rejeoted, se&i ofriee &all 

immediately become vacant, and the goremorslnll, 

without delay, make further ncnIaatIcse, aatila 

confirmation takes plaoe,' oleerly aad by neoe-ssary 

Implioation denies to a nosi.nee, rfPse coafinatian 

has been rejected by the Senate, awright rlbataer 

to occupy the orrice or to dieeh3r9, after sash 

Pejeotion, any or the duties themuft 
Honorable Tom C. King, page 3 

It may be suggested the-t the provisions that *said otflee shall Immediately become vaaant" means that such office 

shall become vacant not physically;but vacant ierely for the 

purpose of authori&g the appointment or someone to flll the 

plaoe. However* we thinh that ar ument is fully dissipated by 

the following uonsiderations: (17 Where a recess appointment 

Is made, as was the case here, the Governor Is not reqaired to 

nominate such recess appointee to the Senate. He is just as 

free before rejection as he is arterward to submit the name or 

someone else. The requirement merely Is that vthe said appointment, or some other person to fill such vacancy, shall be 

nominated to the Senate during the first ten days of its 8ession.v 

So, a vacancy in the limited sense suggested existed~before the 

rejection. Henoe,.ii the provision Wsaid'offioe shall immediately become oacant* means anything it is that the office becomes 

vacant physically as well as legally. (2)'To hold that such 

en‘officer would hold over - even after he has been rejected - 

until a successor should be nominated, 8onrIWed and has qualified, would be to open the way to a complete disregard or section 12 of Artiole 4, State Constitution. For, If such an orricer is not derinitely Nout* upon rejeotiou, no end logically 

can be round for his service, if by change the Senate should 

adjourn without the appointment, confirmation and qualiricaticn, 

or a suocessor. Under that interpretation, ir at some rutare 

time a governor should desire to do so, he oould maIntaIn his 

appointee in office year erter year, notwithstanding rejecticn 

t;szhe Senate, by simply railing to nominate or appoint someone 

(3) In providing that If there should be no oonfIrmation 

durI;g the session governor "shell not thereafter appoint any 

person to fill such vecanoy who has been rejected by the Senate," 

the writers or Seotion 12 evidently thought they had already 

errectively eliminated the rejected appointee fron’oftice ami 

were roreclosing the only remaining possibility that a rejected appointee or nominee be allowed to hold such office. 

As already noted, Artiole 10, Section 17, Is a general 

provision, while Seotion 12 of Article 4 is a special one dealing with this identical problem. To hold that said SectIon 17 

Is erreotive here, in our opinion would be to nullify a part or 

said Section 12 of Article 4, and thus a general provision would 

be held to control the special one, which Is contrary to the 

well established rule of con&motion. On the other hand, there 
Honorable Tom C. King, page 4 

is ample room for Artiale 16, Sectioa 19, to operate without 

applying it to this kind of sitcatiau. Under the Interpretation which we have given both prorisio~ survive and runction. 

It IS oar oonsidere& 0piaL0n that your duties end 

tenure of office ended on Meroh 6, 194l, when ytinr appointment wa8 rejeoted by the Semte. 

_.I Tory truly yours 

CJFTJEXAS 

_.- m Glenn R. Lewis 

bssietent 

GRL:db 

I, ‘: