JIM MATTOX 

Attorney General 

Supreme Court BulldIng 

P. 0. Box 12548 

Austin, TX. 78711.2548 

5W475.2501 

Telex 9104674-1367 

Telecooier 51214750266 

714 Jackson, Suite 700 

Dallas. TX. 75202-4506 

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El Paso, TX. 79905.2793 

9151533-3464 

1001 Texas, Suite 700 

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San Antonio. TX. 78205.2797 

5121225-4191 

A,, Equal OP,,OrtUIW’l 

Affirmative Action EinPlOW 

The Attorney General of Texas 

January 15, 1986 

Mr. William S. Nei!. 

Executive Directo:: 

Texas State Board of Dental 

Examiners 

411 West 13th Strmt 

Suite 503 

Austin, Texas 71m1 

Dear Mr. Nail: 

Opinion No. JM-423 

Re: Effect of the participatioa 

of an individual on a licensing 

board when it is subsequently 

determined that she was not confirmed by the Texas Senate 

You have requested an opinion based on these facts: 

On March 5, 1982, Governor Bill Clements 

appointed Mrs. Geraldine Tucker as a public 

member, Texas State Board of Dental Examiners. On 

May 26, :L983, the Texas Senate refused to confirm 

Mrs. Tutiker's appointment. Neither Mrs. Tucker 

nor the .agency were aware of the action taken by 

the Semite and Mrs. Tucker continued to serve as a 

public member of the board until December 4, 1984, 

when du::jlng aroutine audit of the Dental Board, 

the records of the secretary of state were 

reviewei. and revealed that Mrs. Tucker had not 

been cor:firmed by the Senate. 

Mrs. 'lucker served for approximately 18 months 

subsequmt to the denial of her confirmation by 

the Semte. During this time she performed all 

duties ::equired of a public member of the board, 

inc1udir.g actions in disciplinary cases. In addition the board reimbursed Mrs. Tucker approximately Li1.1,735.22 for travel and per diem during 

this period of time. All of the service perfomed 

by Mrs. Tucker was done in good faith and neither 

Mrs. Tucker nor the board was aware of the 

Senate's action in denying her confirmation. 

Pour questions are: 

[Wlhat 5.~; the effect of Mrs. Tucker's participation in C.isciplinary cases? Also, is Mrs. Tucker 

p. 1930 
Mr. William S. Nail - Page '2 (JM-423) 

liable for the $11.735.22 which she received in 

the form of trave:L reimbursement and per diem? 

Article 4543, V.T.C.;,, creates a Texas State Board of Dental 

Examiners consisting of 12 members, three of whom "must be members of 

the general public." Sec. l(a). Board members are appointed by the 

governor for "one six-year term or until their successors shall be 

appointed and qualify?' Id. 12. The Senate must confirm these 

appointments. See White vL Sturns, 651 S.W.2d 372 (Tex. App. - Austin 

1983, writ ref'd.r.e.). 

On March 5, 1982, the governor appointed Mrs. Tucker to the board. 

This triggered article IV, section 12 of the Texas Constitution: 

All vacanciefi in State or district offices, 

except members o:? the Legislature, shall be filled 

unless otherwise provided by law, by appointment 

of the Governor, which appointment, if made during 

its session, shal:L be with the advice and consent 

of two-thirds of the Senate present. If made 

during the recEss of the Senate, the said 

appointee, or riome other person to fill such 

vacancy, shall be nominated to the Senate during 

the first ten dogs of its session. If rejected, 

said office shall immediately become vacant, and 

the Governor shiz.1, without delay, make further 

nominations. unt,il a confirmation takes nlace. 

But should therfs be no confirmation during the 

session of the Senate, the Governor shall not 

thereafter appoilz: any person to fill such vacancy 

who has been $ected by the Senate; but may 

appoint some o&r person to fill the vacancv 

u&l the next szssioh of the Senate or until the 

regular election to said office, should it occur 

sooner. Appoinf:ments to vacancies in offices 

elective by the people shall only continue until 

the first genera1 election thereafter. (Emphasis 

added). 

This provision creates two categories of appointments: those made 

while the Texas Senate is in session and those made when it is in 

recess. The former become, effective only after joint action by the 

governor and the Senate. The latter may immediately take their oath 

of office and begin performing their duties. See, e.g., Attorney 

General Opinions R-948 (1977); M-267 (1968); O-4864 (1942). As a 

recess appointee, Mrs. Tucker was entitled to take the oath of office 

and to begin performing her official duties after March 5, 1982. On 

May 26, 1983, however, the ljenate refused to confirm her appointment. 

To answer your questions, r'e must determine her status after May 26. 

I 

..- 

c 

p. 1931 
Mr. William S. Nail - Page 3 (m-423) 

Texas law recognizes 8. distinction between holding an office by 

title and holding it by mfferauce. See State ex rel. Bickford v. 

Cocke, 54 Tex. 482 (1881); Tom v. KleGr, 172 S.W. 721 (Tex. Civ. 

APP. - El Paso 1915, writ ::&d). The first type of officeholders are 

de jure officers with a lNega1 right to their office. The latter, 

however, have no right to their office, but hold it by sufferance of 

the appointing power. Tom v. Klepper, supra; Jackson v. Bouser, 208 

S.W. 186 (Tex. Civ. App.~~marillo 1918, no writ). An example of the 

latter is an individ& whose term of office has~expired bui for whom 

there is no qualified succmsor. Under article XVI, section 17 of the 

Texas Constitution, which provides that 

[a]11 officers w:tthin this State shall continue to 

perform the dut::es of their offices until their 

successors shall be duly qualified[,] 

this individual would continue in office as a holdover. Even though 

he would continue to physically occupy the office, however, a constructive vacancy would ex:Lst for purposes of naming his successor. 

A constructive vacancy actually existed in Mrs. Tucker's office 

even before May 26, 1983. Although she was entitled to begin performing her duties after March 5, 1982, her appointment was, until 

confirmed by the Senate, subject to defeasance by the appointing 

power. This is made clear, by article IV, section 12, which provides 

that if an appointment is 

made during the recess of the Senate, the said 

appointee, orsme other person to fill such 

vacancy, shall te nominated to the Senate. . . . 

(Emphasis added). 

If a governor need not subn:Lt the name of an interim appointee to the 

Senate for confirmation, b,ut may nominate "some other person," the 

office is constructively vncant, in the sense that it may at any time 

be filled by another apl~ointee even though the governor's recess 

appointee physically occup~tes the office. That Mrs. Tucker's appointment was subject to defeasance between March 5, 1982 and May 26, 1983 

is, however, unimportant. 'Je have no evidence indicating that, prior 

to May 26, the governor withdrew her name from consideration by the 

Senate. Therefore, she was lawfully entitled to serve as a member of 

the board from the date on which she took the prescribed oath of 

office and began performin:{ her duties until May 26, 1983. 

After May 26, 1983. however, the picture becomes more complicated. The question is whether, after that date, she continued in 

office as a "holdover" or a "de facto officer," see, e.g., Adamson v. 

State, 171 S.W.2d 121 (TIN:. Grim. App. 1943); Jackson v. Maypearl 

Independent School Distric&, 392 S.W.2d 892 (Tex. Civ. App. - Waco 

p. 1932 
Mr. William S. Nail - Page 4 (JM-423) 

1965, no writ) (discussing doctrine of "de facto officer"), or had no 

legal claim to her office. To resolve this issue we must decide how 

to apply article XVI, section 17 of the constitution. 

Several Attorney General Opinions have commented on the relationship between article IV, section 12 and article XVI, section 17, in an 

instance in which the Senate has expressly rejected a governor's 

recess appointment. Attorney General Opinions - 

(1977); M-267 (1968); %+%k9,; O-4920 (1942); O-3343 (1;4;:8 

Most nearly on point is Opinion O-3343. There the question was 

whether [Tom C. King's] tenure of the office of 

State Auditor and Efficiency Expert ended when the 

Senate rejected :hi.s] appointment, or whether it 

[was his1 duty to 'hold the office 'de facto' until 

another official is appointed and has qualified. 

The opinion relied on Denisoa v. State, 61 S.W.2d 1017 (Tex. Civ. App. 

- Austin 1933). writ ref'c:per curiam, 61 S.W.2d 1022 (Tex. 1933), 

where the court, discussing-article IV, section 12, said: 

The language, '::f rejected, said office shall 

immediately become vacant, and the governor shall, 

without delay, make further nominations, until a 

confirmation takr:s place,' clearly and by necessary implication Lenies to a nominee, whose confirmation has been rejected by the Senate, z 

right whatever to occupy the office or to discharge, after su% rejection, any of the duties 

thereof. (Emphasrs added). 

61 S.W.2d at 1021. The opinion concluded that 

Article 16, Sect,ton 17. is a general provision, 

while Section 12 of Article 4 is a special one 

dealing with this identical problem. To hold that 

said Section 17 is' effective here, in our opinion 

would be to null:.fy a part of said Section 12 of 

Article 4, and t!uls a general provision would be 

held to control thma special one, which is contrary 

to the well established rule of construction. 

It held that Mr. King's "dut,Les and tenure of office ended on March 6, 

1941. when this] appointment was rejected by the Senate," and it gave 

three reasons for this conclusion: 

(1) Where a re'cess appointment is made, as was 

the case here, the Governor is not required to 

nominate such recess appointee to the Senate. Be 

p. 1933 
Mr. William S. Nail - Page ,5 (JM-423) 

is just as free before rejection as he is afterward to submit t:h.e name of someone else. The requirement merely is that 'the said appointment, or 

some other person to fill such vacancy, shall be 

nominated to the Senate during the first ten days 

of its session.' So, a vacancy in the limited 

sense suggested existed before the rejection. 

Hence, if the pr~wision 'said office shall immediately become vacant' means anything it is that 

the office beconlas vacant physically as well as 

legally. 

(2) To hold that such au officer would hold 

over even after he has been rejected until a 

successor shoulc: be nominated, confirmed and has 

qualified, would be to open the way to a complete 

disregard of Section 12 of Article 4, State 

Constitution. "or, if such an officer is not 

definitely 'out' upon rejection, no end logically 

can be found fo:: his service, if by [chance] the 

Senate should ;rdjourn without the appointment, 

confirmation and qualification, of a successor. 

Under that inter,pretation, if at some future time 

a Governor should desire to do so, he could maintain his appointee in office year after year, notwithstanding re:iection by the Senate, by simply 

failing to nominate or appoint someone else. 

(3) In provtdiug that if there should be no 

confirmation due:lng the session [the] governor 

'shall not thereafter appoint any person to fill 

such vacancy who has been rejected by the Senate,' 

the writers of Section 12 evidently thought they 

had already effectively eliminated the rejected 

appointee from office and were foreclosing the 

only remaining possibility that a rejected 

appointee or n,xainee be allowed to hold such 

office. 

Subsequent opinions take the same position. Attorney General 

Opinion V-868, for exampIe, dealt with the effect of the Senate's 

failure to act on a recess appointment and the governor's subsequent 

withdrawal of that appointment. It discussed Attorney General Opinion 

O-3343 as well as Attorrey General Opinion 1809 (To Hon. Will D. 

Suites, Aug. 18, 1917), 1916-1918 Tex. Att'y Gen. Biennial Rep. 424, 

which reached a conclusion different from that of O-3343. After 

quoting from and discussing Denison v. State, supra, Attorney General 

Opinion V-868 said that "':Denison] is not authority except perhaps in 

the case of an affirmative rejection." This signifies that although 

p. 1934 
Mr. William S. Nail - Page 6 (JM-423) 

the opinion did not deem Ilenison to be controlling when the Senate 

fails to act on a recess alrpointment, a question not at issue here, it 

thought the contrary is true when the Senate has "affirmative~ly1 

rejectted]" such an appoinl:ment. 

Attorney General Opinions M-267 and H-948 are in accord. The 

former states: 

Where the appointment is a recess appointment or 

one made to fill a vacancy in the office occurring 

while the Senate is not in session, the appointee 

is entitled to ~:he office until the Senate acts 

adversely upon tis nomination, 38 Am.Jur.2d 937, 

Governor, Sec. 71-42 Am..Jur. 983, Public Officers, 

Sec. 142; or until the Governor makes a new 

appointment. Tta:. Const., Art. IV, Sec. 12. 

(Emphasis added). 

The latter say*: 

If the Senate fails to act on a recess appointment 

or on an appointment made during the session of an 

individual to flc:cceed himself in office, the 

individual can continue to exercise. the dutiesof 

office pursuant irk the requirements of article 16, 

section 17, of the Texas Constitution, until the 

Senate subsequerlfly rejects the nomination or 

until the Gove&r appoints another individual. 

(Emphasis added). 

Although it primarily conclrrned the effect of the Senate's failure to 

act on a recess appointm'ent, this opinion is noteworthy. Like 

Attorney General Opinion (1-3343, it deals specifically with article 

XVI, section 17 and states .that after express rejection by the Senate 

a recess appointee can no longer continue to exercise the duties of 

his office. 

Thus, prior opinions agree that the portion of article IV, 

section 12 which provides that "If [a recess appointee is] rejected 

[by the Senate], said off.tce shall immediately become vacant . . ." 

must mean "vacant" both actually and constructively, and that a recess 

appointee has no right to hold over under article XVI, section 17 

after the Senate refuses to confirm him. Indeed, this is the only 

logical conclusion. To 'Iold otherwise would nullify the quoted 

portion of article IV, s<rctioo 12 and undermine the next portion 

thereof. This portion prcvides that if the Senate rejects a recess 

appointment, the governor is to make further nominations until a 

confirmation takes place; t.owever, 

p. 1935 
, 

Mr. William S. Nail - Page 'I (JM-423) 

should there be 'II) confirmation during the session 

of the Senate, zhe Governor shall not thereafter 

appoint any perucm to fill such vacancy who has 

been rejected by xhe Senate. . . . 

This evidences a clear intent to erect an insurmountable barrier 

barring any recess appointee who has been rejected by the Senate from 

continuing to perform the ,iuties of the office. 

We therefore conclude that after Mrs. Tucker was rejected by the 

Senate on May 26, 1983, she was not a holdover under article XVI, 

section 17. On that date she forfeited "any right whatever to occupy 

the office or to discharg?, after such rejection, any of the duties 

thereof." Denison v. Stat;, supra, at 1021. 

This conclusion also miisposes of a corollary argument, &, that 

after May 26 Mrs. Tucker was a "de facto officer." Various courts 

have discussed this concep't. Adamson v. 

example, 

State, supra, at 124. for 

observed that "a ,111 facto officer is one who holds, and is in 

possession of, an office .lnder some appearance or color of right or 

title, although not legally entitled to the same.” Germany v. Pope, 

222 S.W.2d 172, 176 (Tex. Civ. App. - Fort Worth 1949, writ ref'd 

n.r.e.), said that a "de facto officer is one who, by his acts, has 

the appearance of being the officer he assumes to be, but one who in 

fact has no title to the cffice he assumes to hold. . . ." French v. 

State, 572 S.W.2d 934 (Tex. Crim. App. 1977), said that the doctrine 

Greated as a matter of public policy to protect both officers 

appointed by some power hrring "color" of authority to appoint them 

and the public which relief, on the validity of that appointment. 

We do not believe th;lt our courts would apply this doctrine in 

this instance. First, aftltr May 26, Mrs. Tucker had no "appearance or 

color of right or title" t.o her office. Second, Denison v. State, 

s, unequivocally state!, that a recess appointee who is rejected by 

the Senate has "[no] rigk: whatever to occupy the office or to discharge . . . s of the duties thereof." 61 S.W.2d at 1021 (emphasis 

added). To apply the doctrine here would fly in the face of this 

pronouncement. Third, policy considerations do not warrant the application of this doctrine. The Senate's decision not to confirm Mrs. 

Tucker was taken in open s,ession and is a matter of public record. 

Someone involved in this clatter should have been cognizant of the 

Senate's action. To treat Mrs. Tucker as a de facto officer between 

May 26, 1983 and Decembex 4. 1984 would sanction, if not actually 

encourage, oversights of this nature. This is not sound public 

policy. 

In Irvin v. State, 177 S.W.Zd 970 (Tex. Grim. App. 1944). the 

court refused to hold that city policemen who conducted searches while 

purporting to be deputy shl?riffs were de facto deputies. It concluded 

p. 1936 
Mr. William S. Nail - Page 8 (JM-423) 

that policemen and deputy sheriffs hold "offices of emolument" within 

the meaning of article XYI. section 40 of the Texas Constitution, 

which prohibits certain kinds of dual-officeholding, and that to call 

the policemen de facto deputies would "nullify, and would render 

without force or effect, the express provisions of Sec. 40 of Art. 

XVI. . . . This we are unwilling to do." 177 S.W.2d at 974. See 

Faubion v. State, 282 S.W. 597, 598 (Tex. Grim. App. 1926) (not= 

public who did not quaHEy by taking oath and making bond within 

legally prescribed time not: de facto officer, because when appointment 

became void "nothing that she did . . . could in any manner resuscitate it. She acted wizhout color of a valid appointment. . . ."). 

To apply the doctrine in this instance would negate part of article 

IV, section 12 through app:t!:cation of a common law doctrine. 

We therefore conclude that Mrs. Tucker had no right or color of 

right to continue in office in any capacity after May 26, 1983. 

Section 2 of article 4543, V.T.C.S., which provides that board members 

serve "until their successors shall be appointed and qualify," does 

not compel a different conclusion. In this instance, this statutory 

provision is necessarily superceded by the constitutional prohibition 

in article IV, section 12. Since Mrs. Tucker was neither a holdover 

nor a de facto officer after May 26, 1983, all official actions and 

decisions taken by her after that date are void. See, e.g., Williams 

v. Castleman, 247 S.W. 263 (Tex. 1922); Odem v. Sinton Independent 

School District, 234 S.W. 1090 (Tex. Comm'n App. 1921, Wgmt 

adopted). What effect this has on disciplinary cases in which she 

participated during this crime must be determined ou a case-by-case 

basis. Section 2 of article 4543, V.T.C.S.. gives the State Board of 

Dental Examiners the power' to "prescribe rules and regulations . . . 

governing its own proceedings. . . ." If, under the board's rules, 

the outcome in a discipliruarg case would have been the same regardless 

of whether her vote is counted, the fact that her vote was void would 

be inconsequential. If he::r% was the decisive vote in a case. however, 

the decision in that case would be subject to attack. See. e.g., 

Salyer v. State, 316 S.W.:!d 420 (Tex. Grim. App. 1958); Anderson v. 

State, 195 S.W.2d 368 (Tex. Grim. App. 1946); Bowen v. Board of School 

Trustees of Panola County, 16 S.W.2d 424 (Tex. Civ. App. - Texarkana 

1929, no writ); 47 Tex. 3~1:. 2d Public Officers 5262. 

The remaining question is whether Mrs. Tucker is liable for 

travel reimbursement and per diem received after May 26, 1983. Emoluments attached to an office belong to the person legally holding that 

office. See, e.g., Markwe:. v. Galveston County 186 S.W.2d 273 (Tex. 

Cl". App. - Galveston 1945 Twrit ref'd). Before'one can recover these 

emoluments, he must show that he is an officer de jure, that the 

office has been legally cra!rtted and is in existence, and that he has a 

legal right thereto. See. *, -- 

Jones v. City of Uvalde, 79 S.W.2d 

341 (Tex. Civ. App. - San Antonio 1935, writref'd);ity of San 

Antonio v. Coultress, 169 !;.W. 917 (Tex. Civ. App. - San Antonio 1914, 

p. 1937 
Mr. William S. Nail - Page 9 (JM-423) 

writ dism'd). We conclude that Mrs. Tucker was not entitled to travel 

reimbursement and per diem after May 26. 

SUMMARY 

A member of the Texas State Board of Dental 

Examiners appoint:ed by the governor while the 

Texas Senate was in recess and later rejected by 

the Senate is 'lot thereafter a holdover under 

article XVI, sect:Lon 17 of the Texas Constitution 

or a "de facto officer." Decisions made by her 

after rejection a,re subject to attack. She was 

not entitled to reimbursement for travel expenses 

or per diem incurred after rejection. 

JIM MATTOX 

Attorney General of Texas 

JACK HIGHTOWER 

First Assistant Attorney Gtrneral 

MARY KELLER 

Executive Assistant Attorney General 

ROBERT GRAY 

Special Assistant Attorney C,eneral 

RICK GILPIN 

Chairman, Opinion Committee: 

Prepared by Jon Bible 

Assistant Attorney General 

p. 1938