                               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<rctioo 12 and undermine the next portion
thereof. This portion prcvides that if the Senate rejects a recess
appointment, the governor is to make further nominations until a
confirmation takes place; t.owever,




                               p. 1935
,

    Mr. William S. Nail - Page 'I (JM-423)




              should there be 'II)
                                 confirmation during the session
              of the Senate, zhe Governor shall not thereafter
              appoint any perucm to fill such vacancy who has
              been rejected by xhe Senate. . . .

    This evidences a clear intent to erect an insurmountable barrier
    barring any recess appointee who has been rejected by the Senate from
    continuing to perform the ,iutiesof the office.

         We therefore conclude that after Mrs. Tucker was rejected by the
    Senate on May 26, 1983, she was not a holdover under article XVI,
    section 17. On that date she forfeited "any right whatever to occupy
    the office or to discharg?, after such rejection, any of the duties
    thereof." Denison v. Stat;, supra, at 1021.

         This conclusion also miisposesof a corollary argument, &,    that
    after May 26 Mrs. Tucker was a "de facto officer." Various courts
    have discussed this concep't. Adamson v. State, supra, at 124. for
    example, observed that "a ,111
                                 facto officer is one who holds, and is in
    possession of, an office .lnder some appearance or color of right or
    title, although not legally entitled to the same.”    Germany v. Pope,
    222 S.W.2d 172, 176 (Tex. Civ. App. - Fort Worth 1949, writ ref'd
    n.r.e.), said that a "de facto officer is one who, by his acts, has
    the appearance of being the officer he assumes to be, but one who in
    fact has no title to the cffice he assumes to hold. . . ." French v.
    State, 572 S.W.2d 934 (Tex. Crim. App. 1977), said that the doctrine
    Greated      as a matter of public policy to protect both officers
    appointed by some power hrring "color" of authority to appoint them
    and the public which relief,on the validity of that appointment.

         We do not believe th;lt our courts would apply this doctrine in
    this instance. First, aftltrMay 26, Mrs. Tucker had no "appearance or
    color of right or title" t.o her office. Second, Denison v. State,
    s,     unequivocally state!,that a recess appointee who is rejected by
    the Senate has "[no] rigk: whatever to occupy the office or to dis-
    charge . . . s   of the duties thereof." 61 S.W.2d at 1021 (emphasis
    added). To apply the doctrine here would fly in the face of this
    pronouncement. Third, policy considerations do not warrant the appli-
    cation of this doctrine. The Senate's decision not to confirm Mrs.
    Tucker was taken in open s,essionand is a matter of public record.
    Someone involved in this clatter should have been cognizant of the
    Senate's action. To treat Mrs. Tucker as a de facto officer between
    May 26, 1983 and Decembex 4. 1984 would sanction,     if not actually
    encourage, oversights of this nature. This is not sound public
    policy.

         In Irvin v. State, 177 S.W.Zd 970 (Tex. Grim. App. 1944). the
    court refused to hold that city policemen who conducted searches while
    purporting to be deputy shl?riffswere de facto deputies. It concluded




                                  p. 1936
Mr. William S. Nail - Page 8   (JM-423)




that policemen and deputy sheriffs hold "offices of emolument" within
the meaning of article XYI. section 40 of the Texas Constitution,
which prohibits certain kinds of dual-officeholding, and that to call
the policemen de facto deputies would "nullify, and would render
without force or effect, the express provisions of Sec. 40 of Art.
XVI. . . . This we are unwilling to do." 177 S.W.2d at 974. See
Faubion v. State, 282 S.W. 597, 598 (Tex. Grim. App. 1926) (not=
public who did not quaHEy by taking oath and making bond within
legally prescribed time not: de facto officer, because when appointment
became void "nothing that she did . . . could in any manner re-
suscitate it. She acted wizhout color of a valid appointment. . . .").
To apply the doctrine in this instance would negate part of article
IV, section 12 through app:t!:cationof a common law doctrine.

     We therefore conclude that Mrs.  Tucker had no right or color of
right to continue in office in any capacity after May 26, 1983.
Section 2 of article 4543, V.T.C.S., which provides that board members
serve "until their successors shall be appointed and qualify," does
not compel a different conclusion. In this instance, this statutory
provision is necessarily superceded by the constitutional prohibition
in article IV, section 12. Since Mrs. Tucker was neither a holdover
nor a de facto officer after May 26, 1983, all official actions and
decisions taken by her after that date are void. See, e.g., Williams
v. Castleman, 247 S.W. 263 (Tex. 1922); Odem v. Sinton Independent
School District, 234 S.W. 1090 (Tex. Comm'n App. 1921, Wgmt
adopted). What effect this has on disciplinary cases in which she
participated during this crimemust be determined ou a case-by-case
basis. Section 2 of article 4543, V.T.C.S.. gives the State Board of
Dental Examiners the power' to "prescribe rules and regulations . . .
governing its own proceedings. . . ." If, under the board's rules,
the outcome in a discipliruargcase would have been the same regardless
of whether her vote is counted, the fact that her vote was void would
be inconsequential. If he::r%was the decisive vote in a case. however,
the decision in that case would be subject to attack. See. e.g.,
Salyer v. State, 316 S.W.:!d420 (Tex. Grim. App. 1958); Anderson v.
State, 195 S.W.2d 368 (Tex. Grim. App. 1946); Bowen v. Board of School
Trustees of Panola County, 16 S.W.2d 424 (Tex. Civ. App. - Texarkana
1929, no writ); 47 Tex. 3~1:.2d Public Officers 5262.

     The remaining question is whether Mrs. Tucker is liable for
travel reimbursement and per diem received after May 26, 1983. Emolu-
ments attached to an office belong to the person legally holding that
office. See, e.g.,  Markwe:.  v. Galveston County 186 S.W.2d 273 (Tex.
Cl". App. - Galveston 1945 Twrit ref'd). Before'one can recover these
emoluments, he must show that he is an officer de jure, that the
office has been legally cra!rttedand is in existence, and that he has a
legal right thereto. -- See. *,    Jones v. City of Uvalde, 79 S.W.2d
341 (Tex. Civ. App. - San Antonio 1935, writref'd);ity           of San
Antonio v. Coultress, 169 !;.W.917 (Tex. Civ. App. - San Antonio 1914,




                                      p. 1937
Mr. William S. Nail - Page 9    (JM-423)




writ dism'd). We conclude that Mrs. Tucker was not entitled to travel
reimbursement and per diem after May 26.

                               SUMMARY

             A member of the Texas State Board of Dental
          Examiners appoint:ed by the governor while the
          Texas Senate was in recess and later rejected by
          the Senate is 'lot thereafter a holdover under
          article XVI, sect:Lon17 of the Texas Constitution
          or a "de facto officer." Decisions made by her
          after rejection a,re subject to attack. She was
          not entitled to reimbursement for travel expenses
          or per diem incurred after rejection.




                                          JIM     MATTOX
                                          Attorney General of Texas

JACK HIGHTOWER
First Assistant Attorney Gtrneral

MARY KELLER
Executive Assistant Attorney General

ROBERT GRAY
Special Assistant Attorney C,eneral

RICK GILPIN
Chairman, Opinion Committee:

Prepared by Jon Bible
Assistant Attorney General




                                p. 1938
