OFFICE **OF** THE ATTORNEY GENERAL OF TEXAS AUSTIN

Honorable Tom 0. King Cepitol Building Auetin, Tezas
Dear Mr. King:

We beg'to reply requestingour 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 regularterm ooemor does not immediately qnallry,

unquesve section applies in such way as to reqaire the incumbentto aontinue the perfonnanae of the datieaof 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 anotherSeationin oar ConstIlmtIon

__ apeoiticallgooveringthe Identical prOblem at band. Article 4, Section 12, reads:

*All vacanciesin State or dfstrict offices, except mwabers 0r the Legislature, shallbe **tilled** unless otherwiseprovided by law, by appoIntwe& of the Governor, which appointwent, if ade during its session, shall bye with the adrieeend consent 0r two-thirdsOr the.Senate **present.** It m3de during the reoess of the Senate,the said appointee, or some other person to fill snehvaczmoy, shell be nominated to the SenatedurIagthe tirstten days or its session. Ii rejeoted, said orfleeshall Mediately becomevacant,, end the Governor

shall, wIthout delay,make rurther nowiaations,

u.atIl a ooufirmationtakes place. hut should therebe 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 appointmme otherperson 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 eleetiveby the peopleshallonly continue until the timt generalelection tlmreafter.w Sinae you were appointed d&mg the recess

or the Se&&, nominated to the Senateat 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 orlerent 

### While a diii _~~~ 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 rejectedby the Senate, awright rlbataer to occupy the orriceor to dieeh3r9, aftersash Pejeotion,any or the dutiesthemuftHonorable Tom C. King, page 3

It may be suggested the-t the provisionsthat *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 appointmentor 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, shallbe nominated to the Senate during the first ten days of its 8ession.v So, a vacancy in the limited sense suggestedexisted~before the rejection. Henoe,.ii the provision Wsaid'offioe shall immediately become oacant*means anything it is that the office becomes vacant physicallyas well as legally. (2)'Tohold that such en‘officerwould 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 completedisregardor section 12 of Artiole 4, State Constitution. For, If such an orricer is not derinitelyNout* 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 thereafterappoint any person to fill such vecanoy who has been rejectedby the Senate," the writers or Seotion 12 evidentlythought they had already errectivelyeliminated the rejectedappointee fron’oftice ami were roreclosingthe only remainingpossibilitythat a rejected appointeeor 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 identicalproblem. To hold that said SectIon 17 Is erreotive

here, in our opinionwould be to nullify a part or said Section 12 of Article 4, and thus a generalprovision **would** be held to control the special one, which Is contraryto the well established

rule of con&motion. On the other hand, thereHonorableTom 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 givenboth prorisio~ survive and runction.
It IS oar oonsidere& 0piaL0n thatyour duties end tenure of office ended on Meroh 6, 194l, when ytinr

appointment wa8 rejeoted by the Semte.
_.I Tory trulyyours CJFTJEXAS

_.- 

## m GlennR. Lewis bssietent
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