                       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




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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




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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




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