The Attorney General of Texas
March 12, 1981
MARK WHITE
Attorney General
Honorable H. Tati Santiesteban Opinion No. MW-30 3
Chairman, Natural Resources
Committee Re: Status of recess appointees of
Senate of the State of Texas Governor who are not confirmed by
Austin, Texas 78711 Senate in subsequent session of the
legislature
Dear Senator Santiesteban:
Your opinion request sets out the following set of circumstances: The
Governor has made a recess appointment requiring the Senate’s confirma-
tion, has duly submitted the nomination to the Senate at the next session of
the legislature, and the Senate fails to finally act on the appointment prior
to its adjournment.
You ask whether: (1) Under these circumstances, a vacancy was
created by the Senate’s failure to act on the appointment prior to its
adjournment? (2) If so, what steps are required for a successor to qualify for
the office? (31 Is there a procedure by which the Senate can postpone
consideration of a nominee for additional hearings without having that
nominee replaced by another gubernatorial nominee?
The substance of your first two questions was dealt with in Attorney
General Opinion M-267 (1968), when the Senate of the 60th Legislature
failed to act on a duly submitted appointment of a member to the Public
Safety Commission. That opinion concluded that under article IV, section 12,
and article XVI, section 17 of the Texas Constitution, “iwlhere the
appointment is a recess appointment or one made to fill a vacancy ln the
office occurring while the Senate is not in session, the appointee is entitled
to the office until the Senate acts adversely upon his nomination. . . or until
the Governor makes a new appointment.” Id. at 3.
Article IV, section 12 provides:
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-
thids of the Senate present. If made during the
p. 966
Honorable H. Tati Santiesteban - Page Two (MW-303)
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 ma
some other person to fill the vacancy until the next session
--=F o 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 election thereafter.
(Emphasis added).
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.
Read together, these provisions lead to the conclusion that failure to act on the part
of the Senate constitutes neither confirmation nor rejection, that the Governor must
submit that appointee’s name, or some other person’s name, to the Senate at its next
session, and that the appointee whose name was previously submitted shall continue to
serve as a holdover until a successor is appointed by the Governor or, if no other person is
appointed, until the appointee is rejected by the Senate.
Under article IV, section 12, a vacancy is created in the office only if the Senate
takes the affimative action of rejecting the appointee. Constitutional or statutory
orovisions restrictins the rieht to hold Dublic office should be strictlv construed aaainst
-hieligibility. Kothminn v. camels, 397 S.W.2d 940 (Tex. Civ. App. - &I Antonio 196v5,no
writ); Attorney General Opinions M-267 (1968); V-868 (1949).
In a case where another person is appointed by the Governor while the Senate is in
recess, that person, if otherwise qualified, will succeed to the office upon taking the
constitutional oath. Attorney General Opinion O-3183 (1941).
In a case where the Senate has adjourned without taking either affirmative or
negative action on a recess appointment properly submitted for its consideration, the
Governor is left with the prerogative to allow that person to continue to serve during the
recess period or to appoint another qualified person to the office. In either case, the
name of the person whom the Governor wishes to fill the office for the specified term
must be properly submitted to the Senate during its next session.
We find no authority ln the Constitution or statutes which would permit the Senate
to postpone consideration of a nominee for additional hearings without having that
nominee subjected to possible replacement by another gubernatorial nominee. See Walker
v. Baker, 196 S.W.2d 324, 328 (Tex. 1946). (‘Tn other words, since the C!%&tution
P. 967
Honorable H. Tati Santiesteban - Page Three (MW-303)
specifies the circumstances under which the ~Senate may defeat the Governor’s
appointments, there is an implied prohibition against its power to add to those
circumstances.“)
SUMMARY
The Senate’s failure to act on a recess appointment of the Governor
prior to adjournment does not create a vacancy in the office, but
the occupant continues to perform the duties of the office under
article XVI, section 17 of the Texas Constitution until he is
confirmed or rejected by the Senate at its next session or until a
successor is appointed by the Governor and qualifies by taking the
constitutional oath of office. There is no procedure by which the
Senate can postpone consideration of a nominee beyond its session
which would preclude that nominee being replaced by another
gubernatorial appointee.
veTYtruH
MARK WHITE
Attorney General 0f’Texa.s
JOHN W. FAINTER, JR.
First Assistant Attorney General
RICHARD E. GRAY III
Executive Assistant Attorney General
Prepared by Bob Gammage
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Susan L. Garrison, Chairman
David B. Brooks
Bob Gammage
Rick Gilpin
C. Robert Heath
p. 968