JIM MATTOX Attorney General

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A,, Equal OP,,OrtUIW’l Affirmative Action EinPlOW 

# The Attorney General of Texas

January 15, 1986

Mr. William S.Nei!. ExecutiveDirecto:: Texas StateBoard of Dental Examiners 411West 13th Strmt Suite 503 Austin,Texas 71m1
DearMr. Nail: OpinionNo. JM-423

Re: Effect of the participatioa of an individual on a licensing board when it is subsequently determinedthat shewas not confirmedby the Texas Senate

You have requestedan opinionbased on these facts:

On March 5, 1982, Governor Bill Clements appointed Mrs. Geraldine Tucker as a public member, Texas StateBoard of Dental Examiners. On May 26, :L983,

the Texas Senate refused to confirm Mrs. Tutiker'sappointment. Neither Mrs. Tucker nor the .agency

were aware of the action taken by the Semite andMrs. Tucker continued to serve as a publicmember of theboard until December 4, 1984, when du::jlng

a routine 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. 'luckerserved for approximately 18 months subsequmt to the denial of her confirmation by the Semte. During this time she performed all duties ::equiredof a public member of the board, inc1udir.g

actions in disciplinarycases. In addition the board reimbursed Mrs. Tucker approximately Li1.1,735.22 for travel and per diem during thisperiod of time. All of the serviceperfomed by Mrs. Tucker was done in good faith and neither Mrs. Tucker nor the board was aware of the Senate'saction in denyingher confirmation.
Pour questions are:

[Wlhat 5.~;

the effect of Mrs. Tucker's participation in C.isciplinary cases? Also, is Mrs. Tucker

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liable for the $11.735.22 which she received in the form of trave:L reimbursementand per diem?
Article 4543, V.T.C.;,, creates a Texas State Board of Dental Examiners consistingof 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. SeeWhite vL Sturns, 651 S.W.2d 372 (Tex.App. - Austin 1983,writ ref'd.r.e.).
On March 5, 1982, the governorappointedMrs. Tucker to theboard. This triggered article IV, section 12 of the Texas Constitution:

All vacanciefiin State or district offices, exceptmembers o:?the Legislature, shallbe filled unless otherwise provided by law, by appointment of the Governor,which appointment, ifmade 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 riomeother 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,ila confirmation takes nlace. But should therfsbe no confirmation during the session of the Senate, the Governor shall not thereafterappoilz: any person to fill suchvacancy 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:mentsto 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 confirmher appointment. To answeryour questions,r'e must determineher status afterMay 26. I

..- c

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Texas law recognizes 8.distinctionbetween 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 officeholdersare de jure officers with a lNega1right 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 officehas~expiredbui forwhom there is no qualified succmsor. Under articleXVI, section 17 of the Texas Constitution,which provides that

[a]11officersw:tthinthis State shall continue to perform the dut::esof their offices until their successorsshallbe duly qualified[,]
this individualwould continue in office as a holdover. Even though he would continue to physically occupy the office, however, a constructivevacancywould ex:Lstforpurposesof naminghis successor.
A constructivevacancy 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.
. . . (Emphasisadded).
If a governorneed not subn:Lt the name of an interim appointee to the Senate for confirmation, b,utmay nominate "some other person," the office is constructivelyvncant, in the sense that itmay at any time be filled by another apl~ointeeeven though the governor's recess appointeephysicallyoccup~tes the office. That Mrs. Tucker's appointment was subject to defeasancebetweenMarch 5, 1982 andMay 26, 1983 is, however, unimportant. 'Jehave no evidence indicating that, prior to May 26, the governorwithdrew her name from considerationby the Senate. Therefore, shewas lawfully entitled to serve as a member of the board from the date on which she took the prescribed oath of office andbegan performin:{ her dutiesuntilMay 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., Adamsonv. 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. 1932Mr. William S.Nail - Page 4 (JM-423)

1965, no writ) (discussingdoctrine of "de facto officer"), or had no legal claim to her office. To resolve this issue we must decide how to apply articleXVI, section 17 of the constitution.
SeveralAttorney GeneralOpinionshave commentedon the relationshipbetween article IV, section 12 and articleXVI, 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 OpinionO-3343. There the questionwas

whether [Tom C. King's] tenure of the office of StateAuditor and EfficiencyExpert endedwhen the Senate rejected :hi.s] appointment, or whether it [washis1 duty to 'holdthe office 'de facto'until another official is appointedand 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-articleIV, section 12, said:

The language, '::frejected, said office shall immediatelybecome vacant, and the governor shall, without delay, make further nominations, until a confirmation takr:splace,' 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. (Emphasrsadded).
61 S.W.2d at 1021. The opinion concluded that

Article 16, Sect,ton17. is a general provision, while Section 12 of Article 4 is a special one dealingwith this identicalproblem. To hold that said Section 17 is'effectivehere, in our opinion would be to null:.fya part of said Section 12 of Article 4, and t!ulsa general provision would be held to control thmaspecial one,which is contrary to thewell establishedrule of construction.

Itheld thatMr. King's "dut,Les and tenureof office ended onMarch 6, 1941.when this] appointmentwas rejectedby the Senate," and it gave three reasons for this conclusion:

(1) Where a re'cess appointment ismade, aswas the case here, the Governor is not required to nominate such recess appointee to the Senate. Be

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is just as free before rejection as he is afterward to submit t:h.e name of someone else. The requirementmerely 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 beconlasvacant 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 ;rdjournwithout 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 couldmaintainhis appointee in officeyear afteryear, notwithstanding re:iectionby the Senate, by simply failing to nominate or appoint someone else. (3) In provtdiug that if there should be no confirmation due:lngthe session [the] governor 'shall not thereafter appoint any person to fill suchvacancywho hasbeen rejectedby 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,xaineebe 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 discussedAttorney GeneralOpinion O-3343 as well as Attorrey General Opinion 1809 (To Hon. Will D. Suites, Aug. 18, 1917), 1916-1918Tex. Att'y Gen. Biennial Rep. 424, which reached a conclusion different from that of O-3343. After quoting from and discussingDenison v. State,supra, Attorney General OpinionV-868 said that "':Denison] is not authority except perhaps in the case of an affirmative rejection." This signifies that although

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

the opinion did not deem Ilenisonto be controlling when the Senate fails to act on a recess alrpointment, a questionnot at issuehere, 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 onemade to fill a vacancy in the office occurring while the Senate is not in session, the appointee is entitled to ~:heoffice until the Senate acts adversely upon tis nomination, 38 Am.Jur.2d 937, Governor, Sec. 71-42Am..Jur.983, Public Officers, Sec. 142; or until the Governor makes a new appointment. Tta:. Const., Art. IV, Sec. 12. (Emphasisadded).
The latter say*:

If the Senate fails to act on a recess appointment or on an appointmentmade during the sessionof an individual to flc:cceed himself in office, the individual can continue to exercise.the dutiesof officepursuant irkthe requirementsof article 16, section 17, of the Texas Constitution, until the Senate subsequerlflyrejects the nomination or until the Gove&r appoints another individual. (Emphasisadded). 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 .thatafter express rejectionby 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.tceshall immediately become vacant
. . ." mustmean "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<rctioo12 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 confirmationtakesplace; t.owever,

p. 1935, Mr. William S.Nail - Page 'I (JM-423)

should therebe 'II) confirmationduring the session of the Senate, zhe Governor shall not thereafter appoint any perucm to fill such vacancy who has been rejectedby xhe Senate.
. . . This evidences a clear intent to erect an insurmountable barrier barring any recess appointeewho has been rejectedby the Senate from continuingto perform the ,iuties of the office.

We therefore conclude that after Mrs. Tucker was rejectedby 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." Denisonv. Stat;,supra, at 1021.
This conclusionalso miisposes of a corollaryargument,&, 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 factoofficer is onewho holds, and is in possession of, an office .lndersome 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 facthas no title to the cffice he assumes to hold.

. . ." Frenchv. 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 thepublicwhich relief, on thevalidity of that appointment.

We do not believe th;ltour courts would apply this doctrine in this instance. First, aftltr May 26,Mrs. Tuckerhad no "appearanceor color of right or title" t.oher office. Second, Denison v. State, s, unequivocallystate!, that a recess appointeewho is rejectedby 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 considerationsdo not warrant the application of this doctrine. The Senate's decision not to confirm Mrs. Tucker was taken in open s,essionand is a matter of public record. Someone involved in this clattershould have been cognizant of the Senate's action. To treat Mrs. Tucker as a de facto officerbetween 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 courtrefused tohold that citypolicemenwho conducted searcheswhile purporting tobe deputy shl?riffs were de facto deputies. It concluded

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

that policemen and deputy sheriffshold "offices of emolument"within the meaning of article XYI. section 40 of the Texas Constitution, which prohibits certainkinds 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 legallyprescribed time not: de facto officer,becausewhen appointment became void "nothing that she did

. . . could in any manner resuscitate it. She actedwizhout color of avalid appointment.

. . ."). To apply the doctrine in this instancewould 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 thatboardmembers serve "until their successors shall be appointed and qualify," does not compel a different conclusion. In this instance, this statutory provision is necessarily supercededby the constitutionalprohibition 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 takenby 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 crimemust 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 casewould have been the same regardless of whether her vote is counted, the fact thather vote was void would be inconsequential. Ifhe::r% was the decisivevote in a case.however, the decision in that case would be subject to attack. See. e.g., Salyer v. State, 316 S.W.:!d420 (Tex. Grim. App. 1958); Anderson v. State, 195 S.W.2d 368 (Tex.Grim.App. 1946);Bowenv. 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 reimbursementand per diem received afterMay 26, 1983. Emoluments attached to an officebelong to the person legallyholding that office. See, e.g., Markwe:. v. Galveston County 186 S.W.2d 273 (Tex. Cl".App. - Galveston 1945Twrit ref'd). Before'one can recover these emoluments, he must show that he is an officer de jure, that the officehas been legally cra!rtted and is in existence,and thathe 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 Antoniov. Coultress, 169 !;.W. 917 (Tex.Civ. App. - San Antonio 1914,

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

writ dism'd). We conclude thatMrs. Tuckerwas not entitled to travel reimbursementand per diem after May 26.
SUMMARY
A member of the Texas State Board of Dental Examiners appoint:edby the governor while the Texas Senate was in recess and later rejected by the Senate is 'lot thereafter a holdover under articleXVI, sect:Lon17 of the Texas Constitution or a "de facto officer." Decisions made by her after rejection a,resubject to attack. She was not entitled to reimbursement for travel expenses or per diem incurredafter rejection.

JIM MATTOX AttorneyGeneral of Texas

JACK HIGHTOWER FirstAssistantAttorney Gtrneral

MARY KELLER ExecutiveAssistantAttorney General
ROBERT GRAY SpecialAssistantAttorney C,eneral
RICK GILPIN Chairman,Opinion Committee: Preparedby Jon Bible AssistantAttorney General

p. 1938