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 Departmentupon the

, Section 12 of our an appointmentby vacancy in the Judiciary ent is subject to confinua12, of the Constitution,reads as

'All vacancies in State or district offices exceptmembers of the~legislature, shallbe filled unless otherwiseprovided by law, by appointment of the Governor,which appointment, ifmade during its session, shallbe with the adviCe and consent of two-thirdsof the Senatepresent. Ifmade tiring the recess of the Senate, the said appointee,
or someotherperson to fill such vacancy, shallBon. W. Leo O'Danicl,Page 2.

be nominated to the Senate during the first ten days of its session. If rejected, said office shall immediatelybewme vacant, and the Governor shall, without delay,make further nominations, until a confirmation takesplace. But should therebe no confirmationduring the session of the Senate, the Governor shallnot thereafter appoint any person to fill such vacancy who has been rejectedby the Senate8but 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 electiveby 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 CivilAppeals and District Courts shall be filled by the Governor until the next succeeding general election; and vacancies in the office of County Judge and justicesof thepeace 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 shallmake the appointmentsmentioned therein; whereas, Section 12 of Article 4, in f?ffeCt, provides that all appointmentsmade by the Governor to State or District offices shallbe subject to con~firmation by the Senate. It follows that in event of a recess appointmentmade by the Governor to fill.a vacancy in a judicinlposition, the said appointee, or some other person to fill suchvacancy, 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 hemay be elected,be eligible to any civil office of profit **under** this State, which shallhave been ,creatcd,or the emolumentsaon. W. Lee OtDanielt, Page 3.

of whichmay huve been increased during such term;
no maaber of tither House shall, (luringthe tenn for which he is elected,be eligible to any office or place, the appointment to whichmay be mode, in whole or in part, by either branch of the Legislature$ and no member of eitherHouse shall vote for any othermember for any office whatever, which may be filled by a vote of the Legislature, except in such cases as are in this Constitutionprovided. Nor shall anymember of the Legislature be interested, either directly
or indirectly, in any contract with the State,
or any county thorcof, authorizedby any law passed during the term for which he shallhave been elected."

The first clause of the first sentenceof the above quoted constitutiona p~~ovision renders nnymember 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~icharc increased, during such term, regardless of the fact'that the Legislaturemay have nothing, whatsoever to do with the appointment to or the filling of such sffice. The second clause of the first sentence renders everymember of the Legislbture during the term for whichhe is elected ineligible to hold any office or place, where either the whole or a part of the appointment to such officemay be made by eitherbranch of the Legislature. The third clause of the first sentence displays an intent on thepart of the framers of the Constitution to anticipate all conceivable situations in respect to thematter withwhich they were dealing in .suchsection,by providing that no member of eitherRouse of the Legislature should vote for'any othermember for any office whatever thatmay he filled by a vote of the Legislature, except in such cases as are by the Constitution expresslyprovided. An instance of such exception. may be found in Section 9 of Article 3, wherein provision ismade for the election of a President pro tern of the Senate and a Speuker of theDouse, and for the election of other officers of each Douse.

A reciprocalprovisionmay be found **3.n** SeCtiOn 19 Of Article 3 of the Constitution,whichprovides:

“Ho juilgc of any Court, Secretary of State, Attorncy~General, clerkof any court of record,
or anyperson 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 tkeConstitution aspart and parcel of the completed appoinknent. If the appointmentbe made by the Governor during the session,it is inoperative and does not confer **my** right to tle.officeunless consented to or confirmedby two-thirds vote of the Senate. Ifmade during recess, the appointment of theGovernor confersno absolute right to the office, but only a right defensible by adverse actionof the Senate. And since confirmationor rejection of nn'nppointeeby the Senate is not a legislative act, such confirmationor rejection may be haa during a special session, the Constitution contesplating that the appointee shnllbe 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 Statemay be made by the Senate, through its action in confirming such appointee to the office. Therefore, iindcrthe-second clause of Section 18 of Article 3 of the Constitution, amember of the Legislature, c2uringthe term for which he is elected, is ineligible for appointment to a vac.ancyesisting in the Jucliciary

dcpartmont of the State government.
The reasoning of the courts in the opinions citedbelow support the conclusionsreached 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