OFFICE OF THE ATTORNEY GENERAL OF TEXAS 

AUSTIN 

Hon. W. Lee O*Daniel 

Governor of Texas 

Austin, Texas 

Dear Sir: 

etter of July 3, 1939, 

wherein you request the 

following question 

his Department upon the 

, Section 12 of our 

an appointment by 

vacancy in the Judiciary 

ent is subject to confinua12, of the Constitution, reads as 

'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 tiring the recess of the Senate, the said appointee, 

or some other person to fill such vacancy, shall 
Bon. W. Leo O'Danicl, Page 2. 

be nominated to the Senate during the first ten 

days of its session. If rejected, said office 

shall immediately bewme 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 Senate8 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 

eleotion thereafter.* 

Article 13, Section 28, of the Constitution, reds as 

follows; 

*Vacancies in the office of Judges of the 

Supreme Court, the Court of Criminnl Appeals, the 

Court of Civil Appeals and District Courts shall 

be filled by the Governor until the next succeeding general election; and vacancies in the office 

of County Judge and justices of the peace shall 

be filled by the Commissioners Court until-the 

next general election for such offices.* 

There is no inconsistency in these two oonstitutional 

provisions. Section 28 of Article 6 merely provides that the 

Governor shall make the appointments mentioned therein; 

whereas, Section 12 of Article 4, in f?ffeCt, provides that 

all appointments made by the Governor to State or District 

offices shall be subject to con~firmation by the Senate. It 

follows that in event of a recess appointment made by the 

Governor to fill. a vacancy in a judicinl position, the 

said appointee, or some other person to fill such vacancy, 

must be nominated to the Senate during the first ten says 

of its session. 

Section 18, Article 3, of the Constitution of the State 

of Texas, provides us fvllowsr 

*NO Seuator or Representative shrill, during 

the term for which he may be elected, be eligible 

to any civil office of profit under this State, 

which shall have been ,creatcd, or the emoluments 
aon. W. Lee OtDanielt, Page 3. 

of which may huve been increased during such term; 

no maaber of tither House shall, (luring the tenn 

for which he is elected, be eligible to any office or place, the appointment to which may be 

mode, in whole or in part, by either branch of 

the Legislature$ and no member of either House 

shall vote for any other member for any office 

whatever, which may be filled by a vote of the 

Legislature, except in such cases as are in this 

Constitution provided. Nor shall any member of 

the Legislature be interested, either directly 

or indirectly, in any contract with the State, 

or any county thorcof, authorized by any law 

passed during the term for which he shall have 

been elected." 

The first clause of the first sentence of the above 

quoted constitutiona p~~ovision renders nny member of the 

Legislature during.thc term for which he was elected ineligible to any Civil office of profit under this State 

which is created, or the cmoJuments of wl~ich arc increased, 

during such term, regardless of the fact' that the Legislature may have nothing, whatsoever to do with the appointment 

to or the filling of such sffice. The second clause of the 

first sentence renders every member of the Legislbture 

during the term for which he is elected ineligible to hold 

any office or place, where either the whole or a part of 

the appointment to such office may be made by either branch 

of the Legislature. The third clause of the first sentence 

displays an intent on the part of the framers of the 

Constitution to anticipate all conceivable situations in 

respect to the matter with which they were dealing in 

.such section, by providing that no member of either Rouse 

of the Legislature should vote for' any other member for 

any office whatever that may he filled by a vote of the 

Legislature, except in such cases as are by the Constitution expressly provided. An instance of such exception. 

may be found in Section 9 of Article 3, wherein provision 

is made for the election of a President pro tern of the 

Senate and a Speuker of the Douse, and for the election 

of other officers of each Douse. 

A reciprocal provision may be found 3.n SeCtiOn 19 

Of Article 3 of the Constitution, which provides: 

“Ho juilgc of any Court, Secretary of State, 

Attorncy~General, clerkof any court of record, 

or any person holding a lucrative office under 
. 

Bon; 1. Lee O*Daniel, Page 4 

the United 

government 

elected or 

lature." 

States, or this State, or any,foreign 

shall during the term for which he is 

appointed, be eligible to the LegisIt is evident thatconfirmation by the Senate is treated 

by tke Constitution as part and parcel of the completed appoinknent. If the appointment be made by the Governor during 

the session, it is inoperative and does not confer my right 

to tle.office unless consented to or confirmed by two-thirds 

vote of the Senate. If made during recess, the appointment 

of the Governor confers no absolute right to the office, but 

only a right defensible by adverse actionof the Senate. 

And since confirmation or rejection of nn'nppointee by the 

Senate is not a legislative act, such confirmation or rejection 

may be haa during a special session, the Constitution contesplating that the appointee shnll be nominated to the Senate 

during the first ten days of its session, whether the some 

be a epecinl session or n regular session. 

It is thus apparent that "ppr@of the appointmcnt'ctd. 

"an office in then Judiciary department of this State may be 

made by the Senate, through its action in confirming such 

appointee to the office. Therefore, iindcr the- second clause 

of Section 18 of Article 3 of the Constitution, a member of 

the Legislature, c2uring the term for which he is elected, is 

ineligible for appointment to a vac.ancy esisting in the 

Jucliciary dcpartmont of the State government. 

The reasoning of the courts in the opinions cited below 

support the conclusions reached nbove: 

Drown vs. State, 43 Tex. 4781 Barrington vs. Pnrdee, 

82 Pac. 83; Alarbury vs. Madison, 2 L. Ed. 60. 

Yours very truly 

ATTORNEY GIFNERAL OF TEXAS 

BY 

(Signed) 

(. d~(.;’ 

3. 8. Fairchild 

Assistant