Untitled Texas Attorney General Opinion

The Attorney General of Texas January 15, 1986 JIM MATTOX Attorney General Supreme Court BulldIng Mr. William S. Nei!. Opinion No. JM-423 P. 0. Box 12548 Executive Directo:: Austin, TX. 78711.2548 Texas State Board of Dental Re: Effect of the participatioa 5W475.2501 Examiners of an individual on a licensing Telex 9104674-1367 411 West 13th Strmt board when it is subsequently Telecooier 51214750266 Suite 503 determined that she was not con- Austin, Texas 71m1 firmed by the Texas Senate 714 Jackson, Suite 700 Dallas. TX. 75202-4506 Dear Mr. Nail: 2141742-8944 You have requested an opinion based on these facts: 4824 Alberta Ave.. Suite IS0 El Paso, TX. 79905.2793 On March 5, 1982, Governor Bill Clements 9151533-3464 appointed Mrs. Geraldine Tucker as a public member, Texas State Board of Dental Examiners. On 1001 Texas, Suite 700 May 26, :L983,the Texas Senate refused to confirm HOUS,O”, TX. 770023111 Mrs. Tutiker's appointment. Neither Mrs. Tucker 713/223-5886 nor the .agencywere aware of the action taken by the Semite and Mrs. Tucker continued to serve as a public member of the board until December 4, 1984, a06 Broadway, Suite 312 Lubbock. TX. 79401-3479 when du::jlnga routine audit of the Dental Board, 806,747~523S the records of the secretary of state were reviewei. and revealed that Mrs. Tucker had not been cor:firmedby the Senate. 4309 N. Tenth. Suite S McAlle”, TX. 78501-1685 51zS82.4547 Mrs. 'lucker served for approximately 18 months subsequmt to the denial of her confirmation by the Semte. During this time she performed all 200 Main Plaza, Suite 400 duties ::equiredof a public member of the board, San Antonio. TX. 78205.2797 inc1udir.gactions in disciplinary cases. In addi- 5121225-4191 tion the board reimbursed Mrs. Tucker approxi- mately Li1.1,735.22for travel and per diem during A,, Equal OP,,OrtUIW’l this period of time. All of the service perfomed Affirmative Action EinPlOW by Mrs. Tucker was done in good faith and neither Mrs. Tucker nor the board was aware of the Senate's action in denying her confirmation. Pour questions are: [Wlhat 5.~; the effect of Mrs. Tucker's participa- tion in C.isciplinarycases? Also, is Mrs. Tucker p. 1930 I ..- Mr. William S. Nail - Page '2 (JM-423) c liable for the $11.735.22 which she received in the form of trave:Lreimbursement and per diem? Article 4543, V.T.C.;,, creates a Texas State Board of Dental Examiners consisting of 12 members, three of whom "must be members of the general public." Sec. l(a). Board members are appointed by the governor for "one six-year term or until their successors shall be appointed and qualify?' Id. 12. The Senate must confirm these appointments. See White vL Sturns, 651 S.W.2d 372 (Tex. App. - Austin 1983, writ ref'd.r.e.). On March 5, 1982, the governor appointed Mrs. Tucker to the board. This triggered article IV, section 12 of the Texas Constitution: All vacanciefi in State or district offices, except members o:?the Legislature, shall be filled unless otherwise provided by law, by appointment of the Governor, which appointment, if made during its session, shal:Lbe with the advice and consent of two-thirds of the Senate present. If made during the recEss of the Senate, the said appointee, or riome other person to fill such vacancy, shall be nominated to the Senate during the first ten dogs of its session. If rejected, said office shall immediately become vacant, and the Governor shiz.1, without delay, make further nominations. unt,il a confirmation takes nlace. But should therfs be no confirmation during the session of the Senate, the Governor shall not thereafter appoilz:any person to fill such vacancy who has been $ected by the Senate; but may appoint some o&r person to fill the vacancv u&l the next szssioh of the Senate or until the regular election to said office, should it occur sooner. Appoinf:ments to vacancies in offices elective by the people shall only continue until the first genera1 election thereafter. (Emphasis added). This provision creates two categories of appointments: those made while the Texas Senate is in session and those made when it is in recess. The former become, effective only after joint action by the governor and the Senate. The latter may immediately take their oath of office and begin performing their duties. See, e.g., Attorney General Opinions R-948 (1977); M-267 (1968); O-4864 (1942). As a recess appointee, Mrs. Tucker was entitled to take the oath of office and to begin performing her official duties after March 5, 1982. On May 26, 1983, however, the ljenaterefused to confirm her appointment. To answer your questions, r'emust determine her status after May 26. p. 1931 Mr. William S. Nail - Page 3 (m-423) Texas law recognizes 8. distinction between holding an office by title and holding it by mfferauce. See State ex rel. Bickford v. Cocke, 54 Tex. 482 (1881); Tom v. KleGr, 172 S.W. 721 (Tex. Civ. APP. - El Paso 1915, writ ::&d). The first type of officeholders are de jure officers with a lNega1right to their office. The latter, however, have no right to their office, but hold it by sufferance of the appointing power. Tom v. Klepper, supra; Jackson v. Bouser, 208 S.W. 186 (Tex. Civ. App.~~marillo 1918, no writ). An example of the latter is an individ& whose term of office has~expired bui for whom there is no qualified succmsor. Under article XVI, section 17 of the Texas Constitution, which provides that [a]11 officers w:tthinthis State shall continue to perform the dut::es of their offices until their successors shall be duly qualified[,] this individual would continue in office as a holdover. Even though he would continue to physically occupy the office, however, a con- structive vacancy would ex:Lstfor purposes of naming his successor. A constructive vacancy actually existed in Mrs. Tucker's office even before May 26, 1983. Although she was entitled to begin per- forming her duties after March 5, 1982, her appointment was, until confirmed by the Senate, subject to defeasance by the appointing power. This is made clear,by article IV, section 12, which provides that if an appointment is made during the recess of the Senate, the said appointee, orsme other person to fill such vacancy, shall te nominated to the Senate. . . . (Emphasis added). If a governor need not subn:Ltthe name of an interim appointee to the Senate for confirmation, b,ut may nominate "some other person," the office is constructively vncant, in the sense that it may at any time be filled by another apl~ointee even though the governor's recess appointee physically occup~testhe office. That Mrs. Tucker's appoint- ment was subject to defeasance between March 5, 1982 and May 26, 1983 is, however, unimportant. 'Je have no evidence indicating that, prior to May 26, the governor withdrew her name from consideration by the Senate. Therefore, she was lawfully entitled to serve as a member of the board from the date on which she took the prescribed oath of office and began performin:{her duties until May 26, 1983. After May 26, 1983. however, the picture becomes more compli- cated. The question is whether, after that date, she continued in office as a "holdover" or a "de facto officer," see, e.g., Adamson v. State, 171 S.W.2d 121 (TIN:.Grim. App. 1943); Jackson v. Maypearl Independent School Distric&, 392 S.W.2d 892 (Tex. Civ. App. - Waco p. 1932 Mr. William S. Nail - Page 4 (JM-423) 1965, no writ) (discussing doctrine of "de facto officer"), or had no legal claim to her office. To resolve this issue we must decide how to apply article XVI, section 17 of the constitution. Several Attorney General Opinions have commented on the relation- ship between article IV, section 12 and article XVI, section 17, in an instance in which the Senate has expressly rejected a governor's recess appointment. Attorney General Opinions - (1977); M-267 (1968); %+%k9,; O-4920 (1942); O-3343 (1;4;:8 Most nearly on point is Opinion O-3343. There the question was whether [Tom C. King's] tenure of the office of State Auditor and Efficiency Expert ended when the Senate rejected :hi.s]appointment, or whether it [was his1 duty to 'holdthe office 'de facto' until another official is appointed and has qualified. The opinion relied on Denisoa v. State, 61 S.W.2d 1017 (Tex. Civ. App. - Austin 1933). writ ref'c:per curiam, 61 S.W.2d 1022 (Tex. 1933), where the court, discussing-article IV, section 12, said: The language, '::f rejected, said office shall immediately become vacant, and the governor shall, without delay, make further nominations, until a confirmation takr:s place,' clearly and by neces- sary implication Lenies to a nominee, whose con- firmation has been rejected by the Senate, z right whatever to occupy the office or to dis- charge, after su% rejection, any of the duties thereof. (Emphasrs added). 61 S.W.2d at 1021. The opinion concluded that Article 16, Sect,ton 17. is a general provision, while Section 12 of Article 4 is a special one dealing with this identical problem. To hold that said Section 17 is' effective here, in our opinion would be to null:.fya part of said Section 12 of Article 4, and t!uls a general provision would be held to control thmaspecial one, which is contrary to the well established rule of construction. It held that Mr. King's "dut,Lesand tenure of office ended on March 6, 1941. when this] appointment was rejected by the Senate," and it gave three reasons for this conclusion: (1) Where a re'cessappointment is made, as was the case here, the Governor is not required to nominate such recess appointee to the Senate. Be p. 1933 Mr. William S. Nail - Page ,5 (JM-423) is just as free before rejection as he is after- name of someone else. The re- ward to submit t:h.e quirement merely is that 'the said appointment, or some other person to fill such vacancy, shall be nominated to the Senate during the first ten days of its session.' So, a vacancy in the limited sense suggested existed before the rejection. Hence, if the pr~wision 'said office shall imme- diately become vacant' means anything it is that the office beconlas vacant physically as well as legally. (2) To hold that such au officer would hold over even after he has been rejected until a successor shoulc:be nominated, confirmed and has qualified, would be to open the way to a complete disregard of Section 12 of Article 4, State Constitution. "or, if such an officer is not definitely 'out' upon rejection, no end logically can be found fo::his service, if by [chance] the Senate should ;rdjourn without the appointment, confirmation and qualification, of a successor. Under that inter,pretation,if at some future time a Governor should desire to do so, he could main- tain his appointee in office year after year, not- withstanding re:iectionby the Senate, by simply failing to nominate or appoint someone else. (3) In provtdiug that if there should be no confirmation due:lng the session [the] governor 'shall not thereafter appoint any person to fill such vacancy who has been rejected by the Senate,' the writers of Section 12 evidently thought they had already effectively eliminated the rejected appointee from office and were foreclosing the only remaining possibility that a rejected appointee or n,xainee be allowed to hold such office. Subsequent opinions take the same position. Attorney General Opinion V-868, for exampIe, dealt with the effect of the Senate's failure to act on a recess appointment and the governor's subsequent withdrawal of that appointment. It discussed Attorney General Opinion O-3343 as well as Attorrey General Opinion 1809 (To Hon. Will D. Suites, Aug. 18, 1917), 1916-1918 Tex. Att'y Gen. Biennial Rep. 424, which reached a conclusion different from that of O-3343. After quoting from and discussing Denison v. State, supra, Attorney General Opinion V-868 said that "':Denison]is not authority except perhaps in the case of an affirmative rejection." This signifies that although p. 1934 Mr. William S. Nail - Page 6 (JM-423) the opinion did not deem Ilenison to be controlling when the Senate fails to act on a recess alrpointment,a question not at issue here, it thought the contrary is true when the Senate has "affirmative~ly1 rejectted]" such an appoinl:ment. Attorney General Opinions M-267 and H-948 are in accord. The former states: Where the appointment is a recess appointment or one made to fill a vacancy in the office occurring while the Senate is not in session, the appointee is entitled to ~:he office until the Senate acts adversely upon tis nomination, 38 Am.Jur.2d 937, Governor, Sec. 71-42 Am..Jur.983, Public Officers, Sec. 142; or until the Governor makes a new appointment. Tta:. Const., Art. IV, Sec. 12. (Emphasis added). The latter say*: If the Senate fails to act on a recess appointment or on an appointment made during the session of an individual to flc:cceedhimself in office, the individual can continue to exercise.the dutiesof office pursuant irkthe requirements of article 16, section 17, of the Texas Constitution, until the Senate subsequerlfly rejects the nomination or until the Gove&r appoints another individual. (Emphasis added). Although it primarily conclrrnedthe effect of the Senate's failure to act on a recess appointm'ent, this opinion is noteworthy. Like Attorney General Opinion (1-3343, it deals specifically with article XVI, section 17 and states .thatafter express rejection by the Senate a recess appointee can no longer continue to exercise the duties of his office. Thus, prior opinions agree that the portion of article IV, section 12 which provides that "If [a recess appointee is] rejected [by the Senate], said off.tce shall immediately become vacant . . ." must mean "vacant" both actually and constructively, and that a recess appointee has no right to hold over under article XVI, section 17 after the Senate refuses to confirm him. Indeed, this is the only logical conclusion. To 'Iold otherwise would nullify the quoted portion of article IV, s