                                                       January 16, 1939

    Hon. Edward Clark
    Seoretary of Stat8
    Austin, Taxae

    Dear ULr.Clark:
                        Opinion no. o-1x54
                        R8: off108 Of 8eOrO


                Your request for
    ,rurrender and vaoate the o
    beeiraoelred by thla Depa

         Tkar   General




j

                              etary of W&e   expiti8 with that
                             ng powor, the governor.
              "Were this 8ontemplated appointment a reoeaa
         appointment, then of oour66 the person appointed
         would b8 entitled to the offioe upon th8 taking of
         the oath. The legislature being in session, I am
         In doubt as to my proper duty in the matter until
         the oonflrmafion of Jude Reauohamp ha@ been aoted
         upon by the Senate.
                Will   you   be   80 good   a8   to advise me a6 to
                                                                                       .




Eon. Edward Clark, January 16, 1959, Page 2


        the proper lawfug prooedure in this matter for
        whloh I will thank you vary muoB and be most
        happy to follow.
                             Y3inoeral your8,
                              dg&Ia;ward       Clark
                              Seoretary of State'
          %UtiOn 21 of Artiole 4 of the Constitution Of
Texas, provides as follows~
             wTh8rs~8haU~be a 8eoretary of State who
        shall be appointed by the 0OV8l%Ozj by apA with
        th8 adrioe and oon8Wlt ,oftha &Mta,      and who
        shall oontlnue In offloc duriq the term of 8er-
        rloa of the Oov&rnOr. &D 8hall authentloata the
        publioation of the law8, and keep a fair regi8fsr
        of all ofrlolal aota and prooeedlngs of the Governor,                                  ,,
        and shall, when required,   lay the nme and all
        papers, minute8 and touohar8 relative thereto, ba-
        fomthe Laglslatura, or elthsr'3ouse     thereof, .and
        shall perform auoh other dutie8 a8'maf be qequired
        of him by law.  b   8h11  r0OeirS   for,hilr8OIViOa8
        an annual ealary of sir Thousand ()6,000.00) Dol-
        lawa, and no more. (&so. 81, Art. 4, adopted oleo- I
        tlon SOY. 9, l.966.)g
             Seotlon 19 of Artlol~,lO of the Con&ltutlon OS
Texd,     provide8 a8 followa:
             mAli offloerr   within thlr State 8hal). OOB-
        tfnue to perform the dut.tier  of their 6ffioer M-
        til their 8uooe811ors 8hall be dtiy qualified."
           Seotion 12 of Art&lo     4 of the Conlrtitutionof Texa8,
~prorXde8 as follows:
             mAll vaoanoies in State or dilrtriotoffioer,
        exoept members  of the tigislaturs, 8bd1 be filled
        unlees oth8nrirPaprovided bj law, by appointment
        of the Governor, whioh appointment, If made during
        it.8seasion, ahall be rith tha adrioe and oont3ent
        of two-thirds of the Sanata present. If made dur-
        ing the raoesiaof the Senate, the 8aid appointee,




                                                             ..,~,   -.   .;   /:...       I
                                                -
Hon. Edward Clark, January,l6, 1939, Pa&          3


       or some Other person to fill suoh vaoanoy, Shall
       be nominated to the Senate during the first ten
       days Of it6 session. If rejeoted, said OffI
       shall Immedlatsly become vaoant, and the Covernor
       Shall, without delay, make further nomlnatione,
       until a confirmation takes plaoe. But should there
       t18no oonfirmatio- during the session of the Sen-
       ate, the COvernor shall not thereafter appoint
       any person to fill suoh vaoanoy who has been re-
       j8Ot8d by the Senate; but may appoint some other
       person to fill the vaoanoy until the next eea6ion
       of the &mat8 or until the regnlv eleotIan.to
       8aid Offi08, should it roonerm        Appointmenta
       to taoanolea in offloes eleotire by &e people
       shall only oontinw until the first general sleotlon
       thereafter.'
          Seotlon 30, page 369, Texas JurI8prudeno'e,Volume
34, reads as follows:
           VublI0 0rrl08rs.
           Voldlng Over - In Oawral. - Under a general
       provision of the ~onetitation, 'all offioeT8
       within the State ehall oontinue to perform the
     -duties or their OffiO88 until their auooe88ors
       8hall be duly quallfled~' iLadby statute eaoh
       offioer elsoted or appointed under, and eaoh 00aair-
       eloner or member of any board or oammalssionoreat-
       ed by, the laws of the State eball'hold orfloe for
       the term provided by law and until hiS suooeaaor
       is eleoted or appointed and qualifies. Similar
       provisions are also found in the COnSt%tutiOn and
       fstatutesIn respebt of the tenure Of partioular
       orri0ars, also In muniofpal oharters. Indeed,
       the general rule as to holding over prevails even
       in th8 abaenoa 0s any express oonetitutlonal or
       statutory provision."
                 Seotion   34 page 379, 34 Texas Jurlsprudenoe, reads
a8   r0ii0wt58

            "Public OffIoers.
            wConfIrmatlon of Appointee. - All raoanoles
       in Stat8 or dietriot orrioe8, exoept that or mem-
       bership in the LegI6lature, are to be filled, ua-
Bon. Edward Clark, Panuary 16, 1939, Page 4


        lees otherwise provided by laa, by appointment
     -by    the Covernor with the advioe and-.
                                             ooneent
                                               _     of
        two-thirds Of the Senate present. 3,t1s 80
        provided by boththe Constitution and the Sta-
        tUt8S.   Where suoh required advioe and oonsant
 I      of the Senate is refused, the nominee or ap-
        point88 is not entitled to th8 offioe, and a
        oommisslon issued to him is void and vest In
        him no right to oooupg it.*
             DenIeon VS. State, 61 SW (2) 1017-1024, hold8:
             “8tatUb8  requiringlppOlntasent to offloe
        by Uovwnor, with adrloe .tid consent of Senate,
        a8 in 0888 or Chifrman of state HighwaY Com-
        58gSI;amSan8   advISe an6 aonsent of two-thIr(i8
                    Zvery .,appolntmSntby Covernor to
        fill ta&y    In 8tdte or df?trlot offloe mut
        be made with add08 and 00328dlltOf twO-third8
        0s Sanate..~One appoint46 t0 0rri0a & Uimmor
        without adtioe and oonse,ntOf tro-thika8 Of
        &mat0 I8 not legally entitled to arri0tv. oit-
        Ing Seotbn 18 Or &tIola, 4 of,the 0n8titntion
        Of %Zal. xxplrdtIon~orteplnor appointed oi-
        iioer, 8uoh a8 ohairman Of 8tatO EfIghway,'OQ-
        mill)ion,oreatee TaoUloy~    purpO8e'Ofappoint-
        ment Of 8UOOO8’SOr by &?V.mOr rith ~adriosaBd
        oonaent Of two-third80f finate, though inoerbent
        hold8 over Until 8UOOti88dr   i8:appOIntedalldqOal-             .'
        lfled, oltlng Artlole,(Ihotion     12 and Artlole,
        16 Beotfon 17 oi thS %?l8titution    of Texan.

             34 Texas Jurisprudsaoe, Seotion   91,~.read8   a8   fOl-
lOW8:
             V~pllo Orrioerer
             -P!#pOS8 and Erfeot - gtatu% 'Or OfrIcer. -
     +The   purpose of the oonstitutional and statutory
        provlSIons requiring orrloers to hold over until
        their suooessors have qualified is to prevent
        raoanolea in orfloe and a oonssquent oeseatlon
        or the runotlons of gbvernmemt. The oonstltu-
        tlonal provIsIon is eels-exeoutlng,and like the
        slmilar prOvI8iOns in the statutes, It ie manda-
    Hon. Edward Clark, January 16, 1939',Page 5


         tory.  Under th? Constitution an offioer oannot
         arbitrarily divest himself of the obligation
         and authority to perform the duties of his offioe
         until his successor qualifies; and even though
         he resigns and his resignation is accepted, the
         law operates to oontinue him in offloe until his
         successor qualifies. But the Constitution does
         not authorize the Legislature to extend the term
         of an office beyond two years.................."
              "Statue of offioer holding over. - Au lnaum-
         bent who holds over oontlnues In oftioe with all
         the powers lnoldent thereto until hl! suooessor
        hae duly qualirled. EIals'a be jure and not a
        de faoto offloer, and la entitled to a~lnjuao-
        tion    to rotaot his pos8ae8ion,ofthe offloe
        against Pntrudere. Though hititerm has expired,
        he may oontlnue te parform the duties of the
        offloe, t&e euretles on his bond ars liable ior
\       his aots and dafaulC8,~and prooass may bo~wrved
        upon hlm as an oiiioar until his~swoeesor ha8
        qualiried.    ~Eowevar,his holding lb marsly pro-
        ternpore,to aubsclrve pub110 oonvehienoe. lie has
        no right to or inter?st In the orrfoa itself;
        his only right awl duty VI to proteot possession
        against an intruderuntil the qualifioatlonof
        his meoeasor.     It 1s no part of th% 'holdover's
        duty to a8oertain the issnlt of the eleotlon held
        to ohoose his suoosssor;ha has no suoh right or
        interest as authorlreta  4%~ to oontest tho result
        OS an aleotion as deolamd by'the propar~ottl-
        olals; and he is fully absol*sd fran iurtLsr lla-
        blllty as to the prsasrvatlon of the reoordds;and
        further discharge of the duties of the oftioa.
        when he delivers the rebbrds to the holder of the
        ;;;;ffioateof eleotion, after he has duly quali-

                 l&Gee va. Diokey et al, 23 91R404# holds as fol-
    lows:
    7         "All offioers within this state shall oon-
         tinue to perform the duties of their oifioes
         until their tmoaeasorm shall be duly quallflsd.W
         OonstitutfonArtlole 16 2eotlon 17. *In thla
         respeot the state, it seama, by the nature, ab-
         hors a vaouum. The pub110 neoesslty and oontln-
                                                    i
 Hon. Edward Clark, January 16, 1939, Page 6

      ulty of official tenure is not left   to the caprice
      of the ofrice-holder. The contract    for public
      service Imposes a mutual obligation   upon the off%-
      cer and the public, which cannot be   arbitrarily
      dispensed with by either party."
-Meachum Public Officers, Seotlon 414; 19 American and EnglIsh
  Encyclopedic Law, 562; Thompson vs. U. S., I. D. 480; and
  numerous other cases.
           King vs. Featherston, 09 SW 983, holda as follows;
            *ConetItution,lrtiole 1.6,Seotion 17, provia-
       lng that 8ll o~floers wlthln the state shall oon-
      tlnue to pe19Orm the dutls8 Of their O??IoeS WI-
      tll their suoosssors 8hall ba duly quali?lsd, is
      mandatory and an oifieer whose resignationhas besn
    ~‘wsd        but whose stlooessor has not been appointed
       1a ‘&till suoh 0??1osr.~
           On Tobrua~ 19, 1917, Bon. B. F. Loowy, Attorno7.
 Qensral of Texas, rendered    an o~lnlon to Bon. ~7sqes8, Tar&w
 son, Owamor of the State a? .Tsxas upon the status OS (
 vsoauo~~ oiflas and oonilr~~tlonh t&s Senate whlah opln-
 ion is on-jirage,398,  O&m% 8 o? the Reports and dpltiionso?
 B1 t. Lson%y, Attorimy    C%n%slJ.~o?Texas for the 78~8 1916
 and 1918, inoluslve,whloh oplnlon is of @aat l%wh mnd
 being not aeoessary to quote hers at length but to whloh re-
 ferenoe is hers made. Said oplalon holds that the insum-
 bent ban ofiios shall hold over until his suooessor quallfles
 ma is a00wa partleolarlypertinent to your lnqulry.
           !Pher%rore,under the authorities oitsd above, you
 are respeotfullgadvlssd that it Is the opinion O? this
 Department that you shou&d hold ovar the ofrloe oi Seoretary
 o? State until an appointee o? the Covernor is oonfirmad by
 a two-thirdsvote OS the Senate and duly qaaliiies.
                                         Yours very truly
                                   ATTOR~    O-      OF TEXAS
