Honorable Houghton Brownlee, Chairman 

'Nominations Committee 

The,Senate 

Au&In, Texas 

Dear Mr. Brownlee: Opinion No. O-5260 

Re: Necessity of confirmation by 

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, 

submitting the following question for the opinion of this department: 

"Is It necessary for the appointment of a member of the 

Board of the Nuecea River Conservation and Reclamation District to be confirmed by the Senate?" 

Members of the Board of Directors of the Nueces River Conservation and Reclamation District hold State offices. Lower Colorado River 

Authority v. McGraw, 125 Tex. 268, 83 S. W. (2) 629. - 

The Act creating the Nueces River Conservation and Reclamation 

District provides that members of the Board of Directors of the District 

shall be appointed to office by "designation of the Board of Water Engineers, subject to the approval of the Governor." (Section 6, 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 other words, the Legislature has 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~thua named with 

the Governor. 

Article 4, Section XII, of the Texas Constitution, provides: 

"All vacancies in etate 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 two-thirds of the Senate present. If made during 

.the recess of the Senate, the aaid appointee, or some other 

person to fill such vacancy, shall be nominated to the Senate 
Honorable 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 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 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 elective by the people 

shall only continue until the first general election thereafter." 

It is to be noted that this Section of the Constitution provides that appointments to State and district offices shall be made by 

the Governor "unless otherwise provided by 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 subject to confirmation by 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 Opinion No. 0-3076 and our Opinion No. 0-4864. But Section XII 

does not require confirmation by the Senate where the Legislature has 

vested the appointing power in another than the Governor. 

Thus, the inquiry here is whether the Governor, in approving 

or rejecting the 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, Section XII. 

In Conference Opinion No. 0-3076, we held that the word "appointment" in Article 4, Section XII, as applied to the Governor's action, meant "nomination"; that the appointment to office required joint 

action, to-wit, nomination by the Governor and confirmation by 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 subject to confirmation or rejection by 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 confirmation by the Senate only 

where the power of nominating the person to fill a State or district 

office is exercised by the Governor, it follows that, in the absence 

of a provision in the law creating the Nueces District requiring 
. . . r. 

Honorable Houghton Bromlee - page 3 (0-5280) 

confirmtion by the Senate In addition to confirmation by the Governor, 

it is not necessary that the appointment of a member of the Board of 

the District be confirmed by 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