THE ATTORNEY GENERAL 

OF TEXAS 

Honorable Ted B. Lyon 

Chairman 

Subcommittee on Elections 

Texas State Senate 

P. 0. Box 12068 

Austin, Texas 78711 

Opinion No. JM-1161 (Corrected) 

Re: Status of an individual 

who is appointed and sworn 

in as a district judge during 

a legislative recess but 

whose name is not submitted 

to the senate for confirmation, and related questions 

(RQ-1898) 

Dear Senator Lyon: 

you ask about the status of a person appointed by the 

governor to a new district judgeship in Dallas during a time 

when the legislature was not in session and whose name was 

not submitted to the senate for confirmation when, at the 

call of the governor, that body later convened in special 

session. Specifically, you ask: (1) whether the person 

ever officially became a district judge, and if so, at what 

point did he no longer occupy that station; (2) whether his 

rulings as a judge were valid: and (3) whether he would be 

entitled to vacation time for such service, to remain on the 

state payroll until it became exhausted, and thereafter to 

serve as a visiting district judge. 

We are advised that Governor Clements appointed the 

individual involved as judge of the 363rd Judicial District 

court of Dallas County on August 29, 1989, and that on 

September 1, 1989, he subsequently qualified and assumed 

office. The Texas Legislature was not in session at that 

time, but pursuant to the call of the governor dated August 

23rd, 1989, it convened in special session November 14, 

1989. The special session ended December 12, 1989, when 

both houses adjourned sine die. On December 13, 1989, 

Governor Clements appointed another person to be the judge 

of the 363rd Judicial District Court of Dallas County, with 

a notation that the person initially appointed had resigned. 

On December 14, 1989, the second appointee qualified for the 

office by officially filing an oath of office with the 

secretary of state. 

P- 6122 
Honorable Ted B. Lyon - Page 2 (JM-1161) 

In fact, we are advised, the first appointee made an 

oral request to the governor November 23, 1989, that he be 

permitted to resign and that his name not be submitted to 

the senate for confirmation, but the request was not put in 

writing nor was the governor's acceptance of the resignation 

put in writing. As noted, however, no name was submitted to 

the senate, and the day following the adjournment of the 

special session, a successor was appointed to the office. 

The 363rd Judicial District (Dallas County) was created 

by the legislature in 1989 to be effective September 1, 

1989. Acts 1989, 71st Leg., ch. 632, at 2104.1 Although 

creation of the gourt was delayed until September 1, 1989 

(section 1 of the legislative act so specified), the portion 

of the act creating the court on that date became effective 

August 28, 1989, ninety days after the date the legislature 

adjourned. See Tex. Const. art. III, 5 39. Thus, the law 

creating the 363rd District Court of Dallas County as of 

September 1, 1989, was in effect on August 29, 1989, the 

date the governor made his first appointment to fill the 

office. Section 201.027 of the Election Code states that if 

a new office is created, a vacancy occurs on the effective 

date of the statute creating the office or on the date when 

the order creating the office is adopted. 

The general power of the governor to fill vacancies in 

public offices is found in article IV, section 12, of the 

constitution; the specific power to fill judicial vacancies 

is located in article V, section 28, thereof. They are to 

be read together. White v. Sturns, 651 S.W.2d 372 (Tex. 

APP. - Austin 1983, writ ref'd n.r.e). 

The latter provision declares that vacancies in the 

office of judges of "the supreme court, the court of 

criminal appeals and the district courts11 shall be filled by 

the governor "until the next succeeding general election." 

Section 12 of article IV reads: 

(a) 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, 

1 

1. The act is codified as section 24.508 of the 

Government Code. 

p. 6123 
Honorable Ted B. Lyon - Page 3 (JM-1161) 

_- 

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 next general 

election. 

(b) The Legislature by general law may 

limit the term to be served by a person 

appointed by the Governor to fill a vacancy 

in a state or district office to a period 

that ends before the vacant term otherwise 

expires or, for an elective office, before 

the next election at which the vacancy is to 

be filled, if the appointment is made on or 

after November 1 preceding the general 

election for the succeeding term of the 

office of Governor and the Governor is not 

elected at that election to the succeeding 

term. For purposes of this subsection, the 

expiration of a term of office or the 

creation of a new office constitutes a 

vacancy.2 

Although the power of the governor to appoint high 

judicial officers pursuant to article V, section 28, is not 

by that section expressly made subject to confirmation by 

2. Subsection (b) of section 12 was added to the 

constitution in 1987. See V.T.C.S. art. 19a (implementing 

statute). 

P. 6124 
Honorable Ted B. Lyon - Page 4 (JM-1161) 

the senate, confirmation pursuant to article IV, section 12, 

is required nevertheless. White, sunra. When the legislature is not in session, the governor's judicial appointees 

may qualify, take office, and perform the duties of the 

office as interim appointees, subject to later confirmation 

by the senate. Bx narte Sanders 215 S.W.2d 325 (Tex. 1948); 

8~8 Walker v. B key 196 S.W.Zd 324 (Tex. 1946); Stamns v. 

S.W? 77; (Tex. Civ. App. - Galveston 1914, no 

Y v. Bovd, 66 S.W. 874 (Tex. Civ. App. 1902, no 

writ). 

Inasmuch as the legislature in this case did not 

convene until after the governor made his first appointment, 

it follows that upon qualifying, the first appointee 

officially became the judge of the 363rd District Court of 

Dallas County. The question of when the first appointee 

ceased to be the judge of that court presents a more 

difficult matter. 

The most obvious conclusion about the matter at hand is 

that the attempted oral resignation of the first appointee 

was ineffective because subsection (a) of section 201.001 of 

the Election Code reads: 

To be effective, a public officer's resignation or an officer-electps declination 

must be in writing and signed by the officer 

or officer-elect and delivered to the appropriate authority for acting on the resignation or declination. The authority may not 

refuse to accept a resignation. 

The governor may not arbitrarily remove an appointee 

from an office to which he was appointed during a recess by 

later during the recess summarily appointing another to 

succeed the first appointee. Article XV, section 9, of the 

constitution, adopted in 1980, reads: 

(a) In addition to the other procedures 

provided by law for removal of public officers, the governor who appoints an officer 

may remove the officer with the advice and 

consent of two-thirds of the members of the 

senate present. 

(b) If the legislature is not in session 

when the governor desires to remove an 

officer, the governor shall call a special 

session of the senate for consideration of 

P. 6125 
Honorable Ted B. Lyon - Page 5 (JM-1161) 

the proposed removal. The session may not 

exceed two days in duration. 

The provision means, in our opinion, that a person 

appointed to office by the governor when the legislature is 

not in session cannot be removed from office by the governor 

except with the concurrence of the necessary senatorial 

vote. a Dorenfield v. State 

aotio;l 

73 S.W.2d 83 (Tex. 1934). 

Inasmuch as no senate was then possible, the 

governor's original appointee could not have lost his office 

by action of the governor before the legislature convened 

November 14, 1989. 

In our opinion, the failure of the governor to submit 

to the senate the name of a nominee during the special 

session that began November 14, 1989, neither effected the 

removal of the nominee from office instant r nor defeated 

the constitutional requirement that his rezess appointee, 

in order to continue in office, meet approval during the 

session of two-thirds of the senate present. Tex. Const. 

art. IV, 5 12; & art. XV, § 9. 

Section 12(a) of article IV provides that if the 

governor makes an appointment to fill a vacancy during a 

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. (Emphasis added.) 

The constitutional provision does not leave room for other 

alternatives. z Walker, sunra. In default of the 

governor nominating "some other person" to fill the vacancy 

within the first ten days of the session, the "said 

appointee," in our opinion, is inso facto nominated to the 

senate. 

In our opinion, when the governor failed to submit the 

name of another person to fill the vacancy on the 363rd 

Judicial District Court within the first ten days of the 

called legislative session that began November 14, 1989, the 

name of his original nominee to that post was at that 

juncture before the senate for confirmation or rejection. 

Section 9 of article XV prevented the governor's failure to 

submit the appointee's name to the senate from operating as 

a removal from office. 

p. 6126 
Honorable Ted B. Lyon - Page 6 (JM-1161) 

Because the attempted oral resignation of the original 

appointee was not effective under Election Code section 

201.001(a), and the governor did not attempt to remove him 

from office with the advice and consent of the senate 

pursuant to article XV, section 9, of the constitution, 

there was no vacancy to be filled when the governor 

purported to appoint another person judge of the 363rd 

Judicial District Court on December 13, 1989, unless the 

absence of senate confirmation of the original appointee 

during its session worked a rejection of the appointment. 

The original appointee would continue to be the de iure 

judge of the court. 

Article IV, section 12, was construed by the Austin 

Court of Civil Appeals in Denison v. State, 61 S.W.2d 1017 

(Tex. Civ. App. - Austin), wref'd, 61 S.W.2d 

1022 (Tex. 1933). There, the court said: 

[T]he clear import, language, and requirement 

of the Constitution is that any and every 

appointment by the Governor to fill a vacancy 

in a state or district office must be with 

the advice and consent of two-thirds of the 

Senate as in said section 12 provided. 

Id. at 1021. The Denison case tested the authority of the 

governor to commission an appointee whom the senate had 

failed to confirm by a two-thirds vote. In its per curiam 

opinion refusing the writ, the supreme court said: 

The only way the senate could Confirm 

[Denison] was for 'two-thirds of the Senate 

pm' to advise and consent thereto. When 

the Senate Journal declared he was 'Not 

confirmed,' it could only mean that twothirds of the Senate had not advised and 

consented to his appointment. (Emphasis in 

original.) 

61 S.W.2d at 1023. 

If the constitution requires that "any and every" 

appointment bfdthe governor to fill a vacancy "must be with 

the advice consent of two-thirds of the senate" as 

provided in section 12, and if the "only way" the original 

appointment could be confirmed was "for 'two-thirds of the 

senate present' to advise and consent thereto," then the 

failure of the senate to act on his appointment means that 

the appointee was "not confirmed." A failure to confirm by 

P. 6127 
Honorable Ted B. Lyon - Page 7 (JM-1161) 

the required vote (for whatever reason) works a rejection of 

the appointment, in our opinion, whether the nominee is 

"some other person to fill the vacancy" or "the said 

appointee."3 

Nor do we think that once so rejected the appointee 

continued to hold office under the "holdover" provision, 

article XVI, section 17. Article XVI, section 17, provides: 

All officers within this State shall continue 

to perform the duties of their offices until 

their successors shall be duly qualified. 

In Attorney General Opinion O-3343 (1941), Attorney General 

Gerald Mann was asked about the status of a person reappointed by the governor during a senatorial recess to 

succeed himself as state auditor. The reappointment was 

later rejected by the senate, and the rejected nominee asked 

if he continued to hold the office "de facto" until another 

official was appointed and qualified. The opinion advised: 

To hold that such an officer would hold 'over 

-- even after he has been rejected -- until a 

successor should be nominated, confirmed and 

has qualified, would be to open the way to a 

complete disregard of Section 12 of Article 

4, State Constitution. For, if such an officer is not definitely 'out' upon rejection, 

no end logically can be found for his 

service, if by chance the Senate should 

adjourn without the appointment, confirmation 

and qualification of a successor. Under that 

3. In the interpretive commentary following the text 

of article IV, section 12, Professor A. J. Thomas says the 

limitation on the governor's power of appointment by which 

his power is made subject to the approval of two-thirds of 

the senate is copied from the federal constitution. Tex. 

Const. art. IV, 5 12, interp. commentary (Vernon 1984). 

Under the federal Constitution, recess appointments, unless 

confirmed, expire at the end of the next congressional term. 

United States v. Woodley, 751 F.2d 1008 (9th Cir. 1985), 

cert. denied, 475 U.S. 1048 (1986): see 1 Braden, The 

Constitution of the State of Texas: An Annotated and 

Comnarative Analvsis, at 330 (1977)(article IV, section 12, 

"appears to consider failure to confirm as a rejection"). 

P. 6128 
Honorable Ted B. Lyon - Page 8 (JM-1161) 

interpretation, if at some future time a 

Governor should desire to do so, he could 

maintain his appointee in office year after 

year, notwithstanding rejection by the Senate, by simply failing to nominate or appoint someone else. 

Attorney General Mann decided that the specific provisions of article IV, section 12, controlled the general 

"holdover" provisions of article XVI, section 17, because 

otherwise a part of article IV, section 12, would be 

nullified. Similarly, it was decided in State v. Valentine, 

198 S.W. 1006 (Tex. Civ. App. - Fort Worth 1917, writ 

ref'd), that article XVI, section 17, had no application 

where it conflicted with another, more particular, provision 

of the constitution.4 &&&g~ Attorney General Opinion 

JM-423 (1986). The court in Denison, sunra, said: 

The language [of article IV, section 121, 'If 

rejected, said office shall immediately 

become vacant, and the governor shall, 

without delay, make further nominations, 

until a confirmation takes place,' clearly 

and by necessary implication denies to a 

nominee, whose confirmation has been rejected 

by the Senate, any right whatever to occupy 

the office or to discharge, after such 

rejection, any of the duties thereof. 

61 S.W.2d at 1021. 

We are therefore of the opinion that when the senate 

adjourned sine die on December 12, 1989, without confirming 

the recess appointment of the governor's original appointee 

to the bench of the 363rd Judicial District Court (and no 

other person having been nominated by the governor and 

confirmed by the senate to fill the vacancy), the appointment of the original appointee stood rejected by the senate. 

4. In Attorney General Opinion M-151 (1967) it was 

held that article XVI, section 17, did not operate to extend 

the tenure of a judge whose office the constitution declared 

vacant upon his attaining 75 years of age and ten years 

service. The Texas Supreme Court considered the same matter 

in Werlein v. Calvert, 460 S.W.Zd 398 (Tex. 1970) and took 

the same position without discussion. 

4 

P. 6129 
Honorable Ted B. Lyon - Page 9 (JM-1161) 

Under those circumstances, 

section 17, the office became 

and not merely constructively 

thereupon ceased to be the 

District COUrt. 

notwithstanding article XVI, 

immediately vacant -- actually 

-- and the original appointee 

judge of the 363rd Judicial 

With the matter in that posture, the governor, following the adjournment of the senate, was free during the 

recess to appoint another person to fill the vacancy created 

by the senate's failure to confirm the original appointee, 

which he did on December 13, 1989. m Stamns. sunra. The 

new appointee qualified the following day and immediz:;y 

became the judge of the 363rd Judicial District 

subject to later confirmation by the senate or the intervenl 

tion of an election. Until the senate adjourned without 

having confirmed his appointment, however, the original 

appointee of the governor was the de iure judge of the 

363rd Judicial District Court and his rulings as judge of 

that court were the acts of the valid judge of the court. 

gee Hx carte Sanders, sunra; Keen v. Featherston, 69 S.W. 

983 (Tex. Civ. App. 1902, writ ref'd). 

Some past opinions of this office took a different 

position. One of the most recent was Attorney General 

Opinion H-948 (1977), which was issued prior to the 1980 

addition of article XV, section 9, to the constitution, 

and prior to the 1983 White v. Sturns decision. It relied 

entirely upon four earlier opinions of this office: Attorney General Opinions M-267 (1968); V-868 (1949); O-4920 

(1942); and Op. Tex. Att'y Gen. No. 1809 (To HonHiInnizi 

Suiter, Aug. 18, 1917), 1916-1918 Tex. Att'y Gen. 

Rep. 424. It neglected to cite or discuss prior opinions of 

this office taking an adverse position to those upon which 

it relied.5 Attorney General Opinion H-948 concluded: 

Accordingly, it is our opinion that the 

Senate's failure to confirm or reject an 

appointment will prevent the appointment from 

becoming effective and vesting the appointee 

5. Among the pertinent opinions Attorney General 

Opinion H-948 ignored were: Attorney General Opinions M-151 

(1967); C-57 (1963); WW-530 (1958) ; ww-305, ww-190 (1957) ; 

O-3343 (1941) (discussed above): O-1092A, O-1092 (1939); Op. 

Tex. Att'y Gen. No. 2910 (To Hon. W. M. Martin, Jan. 21, 

1933). 1932-1934 Tex. Att'y Gen. Biennial Rep. 391. 

p. 6130 _ 
Honorable Ted B. Lyon - Page 10 (JM-1161) 

with any right to exercise the duties of 

office, if the Governor made the appointment 

while the Senate was in session and if the 

individual was not appointed to succeed 

himself in office. If the Senate fails to 

act on a recess appointment or on an appointment made during the session of an individual 

to succeed himself in office, the individual 

can continue to exercise the duties of office 

pursuant to the requirements of article 16, 

section 17, of the Texas Constitution, until 

the Senate subsequently rejects the nomination or until the Governor appoints another 

individual. 

It is obvious that the view Attorney General Opinion 

H-948 espoused would permit the governor, at his pleasure, 

to maintain a non-elective, recess appointee in office 

indefinitely (and an elective appointee until the next 

election) by the stratagem of not referring the appointment 

to the senate or, if the nomination were submitted and 

rejected, by simply refusing to nominate anyone else. 

Attorney General Opinion H-948 relied upon Attorney 

General Opinion M-267, which had itself relied upon Attorney 

General Opinion V-868. Attorney General Opinion V-868 

reached an erroneous conclusion because it supposed that "a 

hiatus" in office would result if unconfirmed recess 

appointees did not continue in office as holdovers pursuant 

to article XVI, section 17 -- overlooking the article IV, 

section 12, power and duty of the governor to fill vacancies 

in case there is no confirmation during a session. The 

lapse influenced the drafter of that opinion to follow a 

1917 attorney general opinion (Opinion 1809) rather than the 

later Denison decision and Attorney General Opinion O-3343. 

Attorney General Opinion H-948, however, most heavily 

relied upon Attorney General Opinion O-4920. The 1942 

opinion dealt with a statute stating that "The State Board 

of Water Enaineers shall designate, subject to approval 

by the Governor, the first Board of Directors . . . .'I 

(Emphasis added.) Although the statute called for someone 

other than the governor to make the appointments and did not 

call for senate confirmation, the 1942 opinion concluded 

that such confirmation was nevertheless constitutionally 

necessary (though a failure to confirm, it said, did not 

result in removal). It apparently read article IV, section 

12, to require senate confirmation of persons appointed by 

-. 

. p. 6131 
Honorable Ted B. Lyon - Page 11 (JM-1161) 

executive officers other than the governor.6 At the time 

Attorney General Opinion H-948 was issued, such a construction of article IV, section 12, had been repudiated in 

Attorney General Opinion WW-324 (1957) on article II, 

section 1, grounds (separation of powers). See also 

Attorney General Opinion JM-58 (1983). 

Attorney General Opinion NW-303 (1981) should also be 

mentioned. It, too, followed Attorney General Opinions 

M-267 and V-868 without critical examination. 

We have found Attorney General Opinions MW-303 (1981), 

H-948 (1977), M-267 (1968), V-868 (1949). o-4920 (1942), and 

Opinion No. 1809 (1917) to be unreliable guides in the 

construction of article IV, section 12, of the Texas 

Constitution. Either their rationales have been undermined 

by later court cases and constitutional developments, or 

their analyses were faulty from the beginning. They are 

overruled. 

A fundamental principle associated with our republican 

form of government is that every public officeholder remains 

in his position at the sufferance and for the benefit of the 

public, subject to removal from office by edict of the 

ballot box at the time of the next election, or before that 

time by any other constitutionally permissible means. 

Tarrant Countv v. Ashmore, 635 S.W.2d 417 (Tex.), cert. 

denied, 459 U.S. 1038 (1982). In our opinion, the original 

appointee of the governor who qualified and took office 

during the recess of the senate was the de iure judge of 

the 363rd Judicial District Court until the senate later 

adjourned without confirming his appointment by the 

governor. Following such adjournment, the office was vacant 

actually and not merely constructively until the governor 

appointed another person to fill the vacancy during the 

recess -- subject to later senate confirmation or the 

intervention of an election. 

6. Attorney General Opinion O-4920 did not regard the 

appointments as those of the aovernor, or the required 

gubernatorial approval as a requirement for reconfirmation." 

Had it done so, its conclusion that senatorial confirmation 

was required would have been correct. See Bernhardt v. Citv 

of El Paso, 233 S.W.2d 357 (Tex. Civ. App. - El Paso 1950, 

no writ). 

p. 6132 
Honorable Ted B. Lyon - Page 12 (JM-1161) 

We have not been provided sufficient facts to answer 

your questions regarding the original appointee's vacation 

time or his service as a visiting judge except to say that 

in no case could he be considered any longer the judge of 

the 363rd Judicial District Court following the adjournment 

of the senate. But, otherwise, he would be, in our opinion, 

entitled to the same rights and privileges, and subject to 

the same duties and responsibilities, of any other district 

judge of similar tenure. 

SUMMARY 

A recess appointee of the governor to a 

district judgeship, who subsequently gualified, became the de iure judge of the court. 

The office became vacant, actually and not 

merely constructively, when the senate 

adjourned its next session sine die without 

having confirmed the appointee, even though 

neither the appointee's name, nor that of 

another to fill the vacancy, was submitted to 

the senate. Following adjournment, the 

governor was free to appoint another to hold 

the office during the recess, subject to 

later senate confirmation. Prior attorney 

general opinions in conflict with this 

opinion are overruled. 

Very truly yours, 

, 

J-h 

JIM MATTOX 

Attorney General of Texas 

MARY KELLER 

First Assistant Attorney General 

JUDGE ZOLLIE STEAKLEY 

Special Assistant Attorney General 

RENEA HICKS 

Special Assistant Attorney General 

RICK GILPIN 

Chairman, Opinion Committee 

Prepared by Bruce Youngblood and 

William Walker 

p. 6133