### THE ATTORNEY GENERAL OF TEXAS

Honorable Ted B. Lyon Chairman Subcommittee onElections 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 inasadistrict judge during
a legislative recess but whose name isnot submitted to the senate for confirmation, and related questions (RQ-1898)

Dear Senator Lyon:

you ask about the status ofaperson appointed by the governor to anew district judgeship inDallas during a time when the legislature was not insession andwhose 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 adistrict judge, and if so, at what point did heno longer occupy that station; (2)whether his rulings as a judgewerevalid: and (3)whether hewould be entitled tovacation time for such service, to remain on the state payroll until it became exhausted, and thereafter to serve as avisiting district judge.

We are advised that Governor Clements appointed the individual involved as judge of the 363rdJudicial 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 thegovernor dated August 23rd, 1989, itconvened in special session November 14, 1989. The special session ended December 12, 1989, when both houses adjourned sinedie. On December 13, 1989, Governor Clements appointed another person tobe the judge of the 363rdJudicial District Court of Dallas County, with
anotation that theperson initially appointed had resigned. On December 14, 1989, the second appointee qualified forthe office by officially filing an oath of office with the secretary of state.

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In fact,we are advised, the first appointee made an oral request to thegovernor November 23, 1989, that he be permitted to resign and thathis name not be submitted to the senate forconfirmation, but the request was not put in writing norwas the governor's acceptance of the resignation put inwriting. As noted, however, nonamewas submitted to the senate, and the day following the adjournment of the special session, a successor was appointed to the office.

The 363rdJudicial District (DallasCounty) 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 1of 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, 539. Thus, the law creating the 363rd District Court ofDallas County as of September 1, 1989, was in effect onAugust 29, 1989, the date the governor made his first appointment to fill the office. Section 201.027 of the Election Code states that if
anew office iscreated, avacancy occurs on the effective date of the statute creating the office or on the date when the order creating the office isadopted.

The general power of thegovernor to fillvacancies in public offices is found inarticle IV, section 12, of the constitution; the specific power to fill judicial vacancies is located inarticle 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 thatvacancies in the office of judges of "the supreme court, the court of criminal appeals and the district courts11shall be filled by the governor "until the next succeeding general election." Section 12ofarticle IVreads:

(a) Allvacancies inState or district offices, exceptmembers of the Legislature, shall be filled unless otherwise provided by lawby 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.

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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 otherperson 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 aconfirmation takes place. But should there beno confirmation during the session of the Senate, the Governor shall not thereafter appoint anyperson to fill such vacancy who hasbeen rejected by the Senate: butmay appoint some other person to fill the vacancy until the next session of the Senate oruntil the regular election to said office, should it sooner occur. Appointments to vacancies inoffices 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 theGovernor to filla vacancy ina state or district office to a period that ends before the vacant term otherwise expires or, foran elective office, before the next election atwhich thevacancy is to be filled, ifthe appointment ismade on or after November 1 preceding the general election for the succeeding term of the office ofGovernor and the Governor is not elected at that election to the succeeding term. Forpurposes 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 12was added to the constitution in 1987. See V.T.C.S. art. 19a (implementing statute).

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the senate, confirmation pursuant to article IV, section 12, isrequired nevertheless. White, sunra. When the legislature isnot in session, thegovernor's judicial appointees may qualify, take office, andperform 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); 8~8Walker v. Bkey 196 S.W.Zd 324 (Tex. 1946); Stamns v. **S.W?** 77; (Tex.Civ.App. -Galveston 1914, no Yv. Bovd, 66 S.W. 874 (Tex.Civ.App. 1902, no writ).

Inasmuch as the legislature in this case did not convene until after thegovernor 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 ofwhen the first appointee ceased to be the judge of that court presents a more difficult matter.

Themost obvious conclusion about thematter athand is that the attempted oral resignation of the first appointee
was ineffective because subsection (a)of section 201.001 of the Election Code reads:

Tobe effective, a public officer's resignation or an officer-electps declination must be inwriting and signed by the officer
or officer-elect anddelivered to the appropriate authority for acting on the resignation ordeclination. The authority may not refuse to accept a resignation.

The governor may not arbitrarily remove an appointee from an office towhich hewas appointed during arecess 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) Inaddition to the other procedures provided by law for removal ofpublic officers, the governor who appoints an officer may remove the officer with the advice and consent of two-thirds of themembers of the senate present.
(b) Ifthe legislature isnot in session when the governor desires to remove an officer, the governor shall call a special session of the senate forconsideration of

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the proposed removal. The session may not exceed two days induration.

The provision means, in our opinion, that a person appointed to office by thegovernor when the legislature is not insession cannot be removed fromoffice by the governor except with the concurrence of the necessary senatorial vote. a Dorenfield v. State aotio;l73 S.W.2d 83 (Tex. 1934). Inasmuch as no senate was then possible, the governor's original appointee could nothave losthis office by action of thegovernor before the legislature convened November 14, 1989.

Inour opinion, the failure of the governor to submit to the senate the name ofa nominee during the special session that began November 14, 1989, neither effected the removal of the nominee fromoffice instant rnor defeated the constitutional requirement that his rezess appointee, inorder 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 filla vacancy during a recess of the senate,

the said appointee, or some other person to fill suchvacancy, shallbe 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," inour opinion, is inso factonominated to the senate.

Inour opinion, when thegovernor failed to submit the
name of another person to fill thevacancy 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 9ofarticle XVprevented thegovernor's failure to submit the appointee's name to the senate fromoperating as aremoval fromoffice.

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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 fromoffice 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 arejection 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]heclear import, language, and requirement of the Constitution is that any and every appointment by theGovernor to fill avacancy ina state ordistrict office must be with the advice and consent of two-thirds of the Senate as insaid section 12provided.

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 thewrit, 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 tohis appointment. (Emphasis in original.)

61 S.W.2d at 1023.

If the constitution requires that "any and every" appointment bfdthe governor to fillavacancy "mustbe with the advice consent of two-thirds of the senate" as provided in section 12,and ifthe "onlyway" 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 onhis appointment means that the appointee was "not confirmed." A failure to confirm by

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the required vote (forwhatever reason)works arejection of the appointment, inour opinion, whether the nominee is "some other person to fill the vacancy" or "the said appointee."3

Nor dowe 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 toperform the duties of their offices until their successors shallbe duly qualified.

InAttorney General Opinion O-3343 (1941),Attorney General Gerald Mannwas asked about the status of aperson 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 ifhe continued tohold the office "de facto" until another official was appointed and qualified. The opinion advised:

Tohold that such an officer would hold 'over

--even after hehas been rejected --until a successor should be nominated, confirmed and has qualified, would be to open the way to a complete disregard of Section 12of Article 4,State Constitution. For, ifsuch an officer isnotdefinitely '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 ofappointment by which his power ismade 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 (9thCir. 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 arejection").

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interpretation, if at some future time a Governor should desire to do so, he could maintain his appointee inoffice 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, itwas 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 itconflicted with another, more particular, provision of the constitution.4 &&&g~ Attorney General Opinion JM-423 (1986). The court inDenison, sunra, said:

The language [ofarticle 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 andby necessary implication denies to a nominee, whose confirmation has been rejected by the Senate, any rightwhatever to occupy the office or to discharge, after such rejection, any of theduties thereof.

61S.W.2d at 1021.

We are therefore of the opinion thatwhen the senate adjourned sine die onDecember 12, 1989,without confirming the recess appointment of thegovernor's original appointee to the bench of the 363rdJudicial District Court (and no other person having been nominated by the governor and confirmed by the senate to fill thevacancy), the appointment of the original appointee stood rejected by the senate.

4. InAttorney General Opinion M-151 (1967) it was held that article XVI, section 17,did not operate to extend the tenure of a judgewhose office the constitution declared vacant upon his attaining 75years of age and ten years service. The Texas Supreme Court considered the samematter inWerlein v. Calvert, 460 S.W.Zd 398 (Tex. 1970) and took the same position without discussion. 4

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Under those circumstances, section 17,the office became andnotmerely constructively thereupon ceased to be the District **COUrt.** notwithstanding article XVI, immediately vacant --actually

--and the original appointee judge of the 363rd Judicial

With thematter inthat posture, the governor, following the adjournment of the senate, was free during the
recess to appoint another person to fillthe 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 thegovernor was the de iure judge of the 363rd Judicial District Court andhis rulings as judge of that courtwere the acts ofthevalid 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), whichwas issuedprior to the 1980 addition of article XV, section 9,to the constitution, andprior to the 1983White v. Sturns decision. It relied entirely upon four earlier opinions of this office: AttorneyGeneral Opinions **M-267** (1968); V-868 (1949); O-4920 (1942);andOp. Tex. Att'y Gen.No. 1809 (To HonHiInnizi Suiter, Aug. 18, 1917), 1916-1918 Tex. Att'y Gen. Rep. 424. Itneglected tocite ordiscuss prior opinions of this office taking an adverse position to those upon which itrelied.5 Attorney General Opinion H-948 concluded:

Accordingly, it isour opinion that the Senate's failure to confirm or reject an appointment will prevent the appointment from becoming effective andvesting the appointee

**5.** Among the pertinent opinions Attorney General Opinion H-948 ignoredwere: 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.

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with any right to exercise the duties of office, iftheGovernor made the appointment while the Senate was insession and if the individual was not appointed to succeed himself inoffice. Ifthe Senate fails to act on arecess appointment or onan appointment made during the session of an individual to succeed himself inoffice, the individual
can continue to exercise the duties of office pursuant to the requirements ofarticle 16, section 17, of the Texas Constitution, until the Senate subsequently rejects the nomination oruntil the Governor appoints another individual.

It isobvious that theview Attorney General Opinion H-948 espoused would permit the governor, athis pleasure, tomaintain a non-elective, recess appointee in office indefinitely (and an elective appointee until the next election) by the stratagem ofnot referring the appointment to the senate or, if the nomination were submitted and rejected, by simply refusing tonominate 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 inoffice asholdovers pursuant to article XVI, section 17 -- overlooking the article IV, section 12,power and duty of thegovernor to fillvacancies incase 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 andAttorney General Opinion O-3343.

Attorney General Opinion H-948, however, most heavily relied upon Attorney General Opinion O-4920. The 1942 opinion dealtwith a statute stating that "The State Board ofWater 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 tomake the appointments and did not call for senate confirmation, the 1942 opinion concluded that such confirmation was nevertheless constitutionally necessary (thougha failure to confirm, it said, did not result inremoval). Itapparently read article IV, section 12, to require senate confirmation ofpersons appointed by

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executive officers other than thegovernor.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 andV-868 without critical examination.

Wehave foundAttorney 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 fromthe beginning. They are overruled.

A fundamental principle associated with our republican formofgovernment isthat every public officeholder remains inhisposition at the sufferance and forthe benefit of the public, subject to removal from office by edict of the ballot box at the time of the next election, orbefore that time by any other constitutionally permissible means. Tarrant Countv v.Ashmore, 635 S.W.2d 417 (Tex.), cert. denied, 459U.S. 1038 (1982). Inour opinion, the original appointee of thegovernor who qualified and took office during the recess of the senatewas 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 wasvacant actually andnot merely constructively until the governor appointed another person to fill thevacancy during the
recess -- subject to later senate confirmation or the intervention of anelection.

6. Attorney General Opinion O-4920 did not regard the appointments as those of the aovernor, or the required gubernatorial approval asa requirement for reconfirmation." Had itdone so, itsconclusion that senatorial confirmation
was required would have been correct. See Bernhardt v. Citv ofEl Paso, 233 S.W.2d 357 (Tex.Civ.App. -El Paso 1950,
nowrit).

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We have not been provided sufficient facts to answer your questions regarding the original appointee's vacation time orhis service as a visiting judge except to say that inno case could hebe considered any longer the judge of the 363rdJudicial District Court following the adjournment of the senate. But, otherwise, hewould be, inour opinion, entitled to the same rights andprivileges, and subject to the same duties and responsibilities, ofany other district judge of similar tenure.

SUMMARY

A recess appointee **of** the governor to a district judgeship, who subsequently gualified,became thede iure judge of the court. The office became vacant, actually and not merely constructively, when the senate adjourned itsnext session sine die without having confirmed the appointee, even though neither the appointee's name, nor that of another to fill thevacancy, was submitted to the senate. Following adjournment, the governor was freeto 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 ofTexas

MARY KELLER FirstAssistant 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

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