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DAN MORALES
ATTORSEY
GENERAL February 23, 1993
Honorable Gonzalo Barrientos opinion No. DM-203
Chairman
Committee on Nominations Re: Status of “recess gubematorisJ
Texas State Senate appointees who are replaced by other
P.O. Box 12068 nominees before the senate has had the
Austin, Texas 78711 opporhmity to contirm or reject them in a
regular or special session” (RQ-490)
Dear Senator Bari-ientos:
You have requested our opinion as to the status of “recess gubernatorial
[appointees] who are replaced by other nominees before the Senate has @tad] the
opportunity to contirm or reject them in a regular or special session.” Article IV, section
12 of the Texas Constitution provides, in part:
(a) All vacancies in State or district offices, except members of
the Legislature, shag be filled unless otherwise provided by law by
appointment of the Govemor.
(b) An appointment of the Governor made during a session of
the Senate shall be with the advice and consent of two-thirds of the
Senate present.
(c) In accordance with this section, the Senate may give its
advice and consent on an appointment of the Governor made during
a recess of the Senate. To be contkned, the appointment must be
with the advice and consent of two-thirds of the Senate present. If
an appointment of the Governor is made during the recess of the
Senate, the Governor shag nominate the uppoimee. or some other
person toflll the swcuncy,to the Senate during the@ ten &s of
its next session following the appointment. If the Senate does not
confirm a person under this subsection, the Governor shah nominate
in accordance with this section the recess appointee or another
person to fill the vacancy during the first ten days of each subsequent
session of the Senate until a confnmation occurs. If the Governor
does not nominate a person to the Senate during the first ten days of
a session of the Senate as required by this subsection, the Senate at
that session may consider the recess appointee aa if the Governor had
nominated the appointee.
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Honorable Gonzalo Barrientos - Page 2 (DM-203)
(d) If the Senate, at any special session, does not take 6nal
action to contIrm or reject a previously uncontimted recess appointee
or another person nominated to 6ll the vacancy for which the
appointment was made:
(1) the Governor after the session may appoint another person
totillthevaclurcy.and
(2) the appointee, if otherwise qualikl and if not removed as
provided by law, is entitled to continue in office until the earlier of
the following occurs:
(A) the Senate rejects the appointee at a subsequent session; or
(B) the Governor appoints another person to till the vacancy
under Subdivision (I) of this subsection
(e) If the Senate, at a regular session, does not take tInal action
to wn6rm or reject a previously unconSrmed recess appointee or
another person nominated to till the vacancy for which the
appointment was made, the appointee or other perso& as
appropriate, is considered to be rejected by the Senate when the
Senate session ends.
(t) If an appointee is rejected, the office shall immediately
become vacant, and the Governor shall, without delay, make tiuther
nomhations, until a cot&nation takes place. Ifa person has been
rejected by the Senate to till a vacancy, the Governor may not
appoint the person to fill the vacancy or. during the term of the
vacancy for which the person was rejected, to fill another vacancy in
the same office or on the same board, commission, or other body.
[Emphasis added.]
When the Governor makes a recess appointment, subsection (c) requires that she
submit to the senate, during the tirst ten days of the next setion following the
appointment, either the name of the appointee “or some other person.” Furthermore, if
the governor fails to submit any name, the senate “may consider the recess appointee as if
the Governor had nominated the appointee.” Subsections (d) and (e) descrilx the
consequences of senate inaction in, respectively, a regular session and a special session.
As an example, you indicate that, in May 1992, the governor appointed a particular
individual to be Commissioner of Health and Human Services. That appointee resigned
the following month and another person was immediately appointed to till the vacancy. In
our opinion, nothing in article IV, section 12, or any other provision would require the
governor to submit to the senate the name of the first appointee. In addition, the
constitutional language, by directing the governor to “nominate the appointee, or some
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Honorable Go40 Barrientos - Page 3 (DM-203)
otherperson to till the vacancy,” contemplates that the governor has no duty to submit the
name of a previous appointee. If, under subsection (c), she may nominate a person who
has never previously held the position rather than a prior appointee, it seems obvious that
she may nominate her second appointee rather than her first.
Attorney General Opinion JM-I 161 (1990) is not to the contrary. In that opinion,
the attorney general considered an attempt by a first appointee to resign his office during a
special legislative session. The opinion declared that, because the attempted resignation
was not in writing, it did not effect a valid surrender of the office under the terms of
subsection 201.001(a) of the Election Code. In the situation you pose, we will presume
that the first appointee submitted a written resignation. Under those circumstances, the
second appointee became the dejure office holder as of the date of his appointment.
Attorney General Opinion JM-1 I61 is instructive in determining whether the acts
of the first appointee must be subsequently “validated” by the legislature. Under the terms
of article IV, section 12, the first appointee was the de jure office holder until the second
appointee was appointed to and qualified for the position. Since the legislature did not
convene at any time during the first appointee’s tenure, no legislative action regarding this
appointee was either necessary or proper. Since the first appointee held the office dejure
during his brief tenure, a subsequent “rejection” of that brief appointment would, under the
constitution, have no effect.
SUMMARY
When the governor appoints an individual to a position while the
legislature is in recess, that person resigns the position before the
legislature next convenes, and a second appointee is named to the
position, there is no requirement that the name of thefirsr appointee
be submitted to the legislature. Acts of the first appointee need not
be validated by the legislature for any period in which that person
held the position dejure.
DAN MORALES
Attorney General of Texas
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Honorable Godo Banientos - Page 4 (DM-203)
WILL PRYOR
Fii Assistant Attorney General
MARYKELLER
Deputy Assistant Attorney General
RENEAHICKS
Special Assistant Anomey General
MADELEINE B. JOHNSON
Chair, Opiion Committee
Prepared by Rick Gilpin
Assistant Attorney General
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