THE ATTORNEY GENERAL
OF TEXAS
Honorable Ted B. Lyon Opinion No. JM-1161 (Corrected)
Chairman
Subcommittee on Elections Re: Status of an individual
Texas State Senate who is appointed and sworn
P. 0. Box 12068 in as a district judge during
Austin, Texas 78711 a legislative recess but
whose name is not submitted
to the senate for confirma-
tion, 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.
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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.
1
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. The act is codified as section 24.508 of the
Government Code.
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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).
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the senate, confirmation pursuant to article IV, section 12,
is required nevertheless. White, sunra. When the legisla-
ture 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 re-
signation or an officer-electps declination
must be in writing and signed by the officer
or officer-elect and delivered to the appro-
priate authority for acting on the resigna-
tion 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 offi-
cers, 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
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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 73 S.W.2d 83 (Tex. 1934).
Inasmuch as no senate aotio;l 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.
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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 two-
thirds 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
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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 reap-
pointed 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 of-
ficer 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").
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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 Se-
nate, by simply failing to nominate or ap-
point someone else.
Attorney General Mann decided that the specific pro-
visions 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 4
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 appoint-
ment 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.
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Under those circumstances, notwithstanding article XVI,
section 17, the office became immediately vacant -- actually
and not merely constructively -- and the original appointee
thereupon ceased to be the judge of the 363rd Judicial
District COUrt.
With the matter in that posture, the governor, follow-
ing 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: Attor-
ney 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.
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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 appoint-
ment 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 nomina-
tion 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
-.
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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 construc-
tion 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).
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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 guali-
fied, 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
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