Honorable HoughtonBrownlee, Chairman 'NominationsCommittee The,Senate Au&In, Texas

Dear Mr. Brownlee: OpinionNo. O-5260

Re: Necessity of confirmationby the Senate of the appointment of a member of the Board of the Nueces River Conservation and Reclamation District.

We beg to acknowledge receipt of your letter of May 6, 1943, submittingthe following question for the opinion of this department:

"Is It necessary for the appointment of a member of the Board of the Nuecea River Conservationand ReclamationDistrict to be confirmedby the Senate?"

Members of the Board of Directors of the Nueces River Conservation and Reclamation District hold State offices. Lower ColoradoRiver Authority v. McGraw, 125 Tex. 268, 83 S. W. (2) 629. -

The Act creating the Nueces River Conservationand Reclamation District provides that members of the Board of Directors of the District shallbe appointed to officeby "designationof the Board of Water Engineers, subject to the approval of the Governor." (Section6, Acts of 1935, 44th Legislature, 1st. Called Session,p. 1660, Ch.,27, as amended by Acts of.1937, 45th Legislature, 2d Called Session,p. 1891, Ch. 20, Sec. 2). In otherwords, the Legislaturehas vested in the Board of Water Engineers the power to name the Directors of the District, and has placed the power to confirm or reject the Directors~thuanamedwith the Governor.

Article 4, SectionXII, of the Texas Constitution,provides:

"All vacancies in etate or district offices exceptmembers of the Legislature, shallbe filled unless otherwiseprovided by law, by appointment of the Governor,which appointment, if made during its session,shallbe with the advice and consent of two-thirds of the Senatepresent. Ifmade during .the recess of the Senate, the aaid appointee, or some other person to fill suchvacancy, shallbe nominated to the SenateHonorable Houghton Brownlee - page 2 (O-5280)

during the first ten days of Its session. If rejected; sai,d office shall inunedlately become vacant, and the Governor'shall, without &lay, make furthernominations,until a confirmation takes place. But should there be no confirmationduring the session of the Senate, the Governor shallnot thereafter appoint any person to fill such vacancy who has been rejected by the Senate;but may appoint some other person to fill the vacancy until the next session of the Senate or until the regular election to said office, should it sooner occur. Appointments to vacancies in offices electiveby the people shall only continueuntil the first general election thereafter."

It is to be noted that this Section of the Constitutionprovides that appointmentsto State and district offices shallbe made by the Governor "unless otherwiseprovidedby law". Thus, the Section expressly allows the Legislature to vest by law the power of appointment to fill State or district offices inan officer or agency of the State other than the Governor. All "appointments"to State and district offices made by the Governor are subjectto confirmationby the Senate, under the terms of this Section of the Constitution. Denison v. e, 61 S. W. (2) 1017,writ ref., 61 S. W. (2) 1022; See, also, our Conference OpinionNo. 0-3076 and our Opinion No. 0-4864. But SectionXII does not require confirmationby the Senatewhere the Legislaturehas vested the appointingpower in another than the Governor.

Thus, the inquiryhere iswhether the Governor, in approving
or rejectingthe nominees of the Board of Water Engineers, is "appointing" persons to fill the offices of Directors of the Board of the District, within the meaning of the Constitution,Article 4, SectionXII.

In Conference OpinionNo. 0-3076,we held that the word "appointment" inArticle 4, SectionXII, as applied to the Governor'saction, meant "nomination";that the appointmentto office required joint action, to-wit, nominationby the Governor and confirmationby the Senate. Thus, freely translated, SectiouXII of Article 4 provides that where the power to name the person who shall fill State and district offices shall remain in the Governor, those named by the Governor shall be subjectto confirmationor rejectionby the Senate. In the Act under consideration,the Governor is not given the power to nominate the Board of Directors of the District. That power is vested in the Board of Water Engineers. The power given to the Governor Is purely negative in character. He cannot name the Board members,but can exercise only the power to approve or reject those named by the Board of Water Bngineers. Since the Constitution requires confirmationby the Senate only where the power of nominating the person to fill a State or district office is exercisedby the Governor, it follows that, in the absence of a provision in the law creating the Nueces District requiring. . . r.

Honorable HoughtonBromlee - page 3 (0-5280)

confirmtion by the Senate In addition to confirmationby the Governor, it is not necessary that the appointment of a member of the Board of the Districtbe confirmedby the Senate.

APPROVED MAY 7, 1943
/s/ Gerald C. Mann
ATl!OPJiEYGENEBALOFTEXAS Very truly yours

ATTCRNEYGENERALOFTEXAS

By /II/

R. W. Fairchild R. W. Fairchild Assistant

RWF-MU-IM

APPROVED OPINION COMMITTEE BY /s/ Q'B CHAIRMAN