## THE ATTORSEY GENIEEUL QF TEXAS

April 10,

## 1963

Honorable John Connally OpinionNo. C- 

### 57 Governor of Texas Austin, Texas Re: Under the facts stated, whether the Governor is precluded from appointinga Criminal DistrictAttorney of Dear Governor Connally: PolkCounty.

You have requestedan opinion from thisDepartment concerning the office of Criminal District Attorneyof Polk County and ask if, under the facts stated below,you are precluded from making an appointment to such office or if a vacancy existsat the present time which would authorizeyou to make such appointment.

The facts concerningthis request are as follows:

Cn June 19,

## 1962, Governor Daniel appointed Samuel W. Freas as Criminal District Attorneyof Polk County to fill the unexpired term of Claude Ray Bailey, resigned. Mr. Freas took the oath of office and receivedhis commission which expired December 

### 31, 1962.

At the general election of November,

## 1962, Sidney H. Adams was elected Criminal DistrictAttorney of Polk County. On December 1,

## 1962, Mr. Adams resignedas CriminalDistrict Attorneywithout having serveda day in that office.

On December 27, 

## 1962, Governor Daniel appointed SamuelW. Freas as CriminalDistrict Attorneyof Polk County to succeed SidneyH. Adams, resigned. Mr. Freas took the oath of officeand received his commission.

-280-Honorable John Connally, page 2 (C-

## 57 )

On January

## 8,1963,while still in office, Governor Daniel submitted the name of Mr. Freas to the Senate for confirmation to fill the unexpired term of ClaudeRay Bailey as Criminal District Attorney of Polk County. However, therewas no sub- : mission of the name of Mr. Freas to the Senate for confirmation to fill the unexpired term of Mr. Adams.
The Texas Constitution, Section 12,Article IV, expressly provides for the manner of fillingvacancies In State or district offices. It states as follows:

"All vacancies in State or district offices, except members of the Legislature, shallbe filled unless otherwise providedby law,by appointment of the Governor, which appointment, if made during its session, shallbe with the advice and consent of two-thirds of the Senate present. If made during the recess of the Senate, the said appointee, or some other person to fill such vacancy, shall be nominated to the Senate during the first ten days of its session. If rejected, said office shall immediatelybecome vacant, and the Governor shall,without delay, make further nominations,until a confirmationtakes place. But should there be no confirmationduring the session of the Senate, the Governor shall not thereafter appoint any person to fill such vacancywho has been rejected by the Senate;but may appoint some other person to fill the vacancy until thenext 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."
The Constitution, therefore, clearlyrequires that every appointmentby the Governor to fill a vacancy in a State or district office be made with the advise and consent of twothirds of the Senate. See Denison v. State,

## 61S.W.2d 1017, (Tex.Civ.App.1933 error ref.) 122 T 459, 61 S.W.2d 1022 and 

## 34Tex.Jur. 374-381, Public'Officezt;Sections 32-34. We also observe that in this instance,GovernorDaniel's appointment of Mr. Freas to fill Mr. Adams1unexpired termwas made during a recess of the Senate,and that as such the nomination is required to be made during the first ten days of the Senate session by Section 12,Article IV.

-28.c iHonorable John Connally, page

## 3 (C-57)

It is our opinion, therefore, that the failure to submitMr. Freas for Senate confirmation to fill the unexpired term of the elected Sidney H. Adams, resigned, creates a vacancy at the present time within the meaning of Section 12 of Article IV. The fact that Mr. Freasl name is presently pending confirmation to fill the unexpired term of Claude Ray Bailey would not preclude such an appointment of your choice.

SUMMARY

An appointment to fill a vacancy in a State or district office requires the confirmation of twothirds of the Senate. In the absence of such nomination to the Senate, a vacancy existswhich authorizes the Governor to make an appointment of his choice to that office and submit such appointee for confirmation by the Senate. Sincerely,

WAGGONER CARR Attorney General

Assistant PP:mkh

APPROVED: OPINION COMMITTEE

W. V. Geppert, Chairman John Reeves J. S. Bracewell Edward Moffett W. 0. Shultz

APPROVED FOR THE ATTORNEY GENERAL BY:Albert Jones

-282-