THE ATTORSEY GENIEEUL 

QF TEXAS 

April 10, 1963 

Honorable John Connally Opinion No. C- 57 

Governor of Texas 

Austin, Texas Re: Under the facts stated, 

whether the Governor 

is precluded from appointing a Criminal 

District Attorney of 

Dear Governor Connally: Polk County. 

You have requested an opinion from this Department 

concerning the office of Criminal District Attorney of Polk 

County and ask if, under the facts stated below, you are precluded from making an appointment to such office or if a 

vacancy exists at the present time which would authorize you 

to make such appointment. 

The facts concerning this request are as follows: 

Cn June 19, 1962, Governor Daniel appointed 

Samuel W. Freas as Criminal District Attorney of 

Polk County to fill the unexpired term of Claude 

Ray Bailey, resigned. Mr. Freas took the oath of 

office and received his commission which expired 

December 31, 1962. 

At the general election of November, 1962, 

Sidney H. Adams was elected Criminal District Attorney of Polk County. On December 1, 1962, Mr. 

Adams resigned as Criminal District Attorney without having served a day in that office. 

On December 27, 1962, Governor Daniel appointed 

Samuel W. Freas as Criminal District Attorney of Polk 

County to succeed Sidney H. Adams, resigned. Mr. Freas 

took the oath of office and received his commission. 

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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 Claude Ray Bailey as Criminal District 

Attorney of Polk County. However, there was 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 filling vacancies In State 

or district offices. It states as follows: 

"All vacancies in State 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 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 immediately become 

vacant, and the Governor shall, without delay, 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." 

The Constitution, therefore, clearly requires that 

every appointment by 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, 61 S.W.2d 1017, 

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

and 34 Tex.Jur. 374-381, Public'Officezt; Sections 32-34. We 

also observe that in this instance, Governor Daniel's appointment of Mr. Freas to fill Mr. Adams 1 unexpired term was 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 i 
Honorable John Connally, page 3 (C-57) 

It is our opinion, therefore, that the failure to 

submit Mr. 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 exists which 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 

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