                               AUWTIN      11. -rE%As
PRICE   DANIEL
XrrORNEY GF.NERAL
                                        July 30, 1949


         Hon. ‘Robert S. Calvert
         Comptroller of Public Accounts
         Austin, Texas
                                  Oplnlon No. V-868
                                           Re:   Status of office and salary
                                                 or Hon. E. V. Spence aa mem-
                                                 ber of the Board of Water
                                                 Engineers
         Bear Sir:

                       The request   for    opinion     Is stated   in your letter
         a8 follows:
                      “Under the facts. stated below, please
                give me your opinion as to whether E. V.
                Spence is still  a member of the Board of
                Water Engineers and as such is entitled        to
                the salary Incident to the position      until
                such time as he qualifies    as Interstate
                Compact Commlssloner, or until his suc-
                cessor on the Board of Water Engfneers fs
                appointed.
                       “He waa orlglnally    appolnteU to the
                Board of Water Engineers as an lnterlm
                appointee to fill    the vacancy which oc-
                curred upon the death of Mr. A. Ii. Bunlap,
                Thls appointment was made by the Honorable
                Coke Stevenson and waa duly and regularly
                confirmed ,by the Senate.      He qualified   in
               .due course~and at the expiration       of the in-.
                terlm term was reappointed      to .the :Board by
               Honorable Beauford Jester and thereafter
                qualified   on November 6, 1947, by taking
                the stPtutory oath and making the requfred
               bond.     Als name was submitted to the 51st
               Legislature    for aonflrmatfon.      The Senate
               of such Legislature      never acted on thls
               appointment. and ‘his name was wlthdrawn by
               Governor Jester on June ~23, 1949, wlth the




                                                                                     .,,
  Hon. Robert.S,.!%lvert:    +?a&?-2 -Vi868



       consent ~of the Senate.    Governor Jester
       did not submit another name for conflrm-
       ation,has not requested his resignation
       and.haa not appointed anyone else to the
       Boand of Water Engineers:.
                "By H.B.594, 51st Legislature,      the
        offfce    of.Interstate   Compact Commlsslon
        for the Canadian, Red and Sablne Rivers
        was created and appropriated        the funds
        necessary to'paythe       salaries   and carry
        out the duties lncldental        to such office.
        This appropriation      does not become ef-
       ,fectlve    until the biennium beginning
        September 1, 1949,       Governor Jester has
        appointed Mr. Spence Interstate        Compact
        Commissioner, and he was confirmed by the
        Sena$e on June 23, 1949.        He has not qual-
        ified for such office      by taking the oath
        required by said bill."
             In addition to -the fact5 stated In your letter,
 we have ascertained    that the appoint&e*5 name for the
 Board position   never came out of committee and that no
 vote or other official    action was ever taken by the
 Senate one the appointment other than to consent to the
 withdrawal.
              The answer to your.queatlon     15 dependent upon
  the solution   of two separate problems.      First,  it 15
  necessary to determine the effict      of the ~Governor15 with-
L dratial, the Senate consenting,   of the appointment to the
  Board position   upon such appointee's    right to contfnut
  a5 a member of the Board of Water Ennglneers. Second,
  if this has no effect   upon the right to mambershlp,
  then 1s his right to the office    in any way affected
  by his appointinent and Senate confirmatfon       to the Of-
  fice of Interstate   Compact Commissioner?      The question
  of the right to salary as a member of the Board ie de-
  pendent tipon the right to the office.
            The solution   to the problem raised by the
 Governor's withdrawal of his appointee's     name from the
 Senate with its consent is ln part dependent upon the
 following  statutory   and constitutional provisions:
He& Robert S. Calve&       - Page 3 -V-868


           Article   7478, Vernon@8 Civil       Statutes8
           “Said Board (Board of Water E&lneers)
    shall be cbnposed of three members; OM 81
    whoa shall be appointed from eaah of the re-
    spectlve water divisions    described in Artf-
    cle 7475.    The members of such Board ahall
    be appofnted by the Governor, by and with
    the advice and consent of the Serrpte, and
    shall eaoh held office   fol' a term of six
    yeprsp and until his aucoessor is appeinted
    and qualified,"
          Article    IV9 Section    12, Constftutfen        of Texas8
            "All vacanales in,State       or district
    offices,    except members (Bf the LeglslatuFc,
    shall be filled      unless otherwise provided
    by law9 by appointmad         gf the Governor9 which
    appaintment, lf.8nade .du@ing its session,            shall
    be ylth the advice and conrrent'af two-thirds
    of the Senate presen&          If made durfng the
    reces~s of the Sena%+?i,the said appointee,            or
    ata8m?other person to fill        suah vacancy, shall
    be ncanfnated to %he SMate during the first
    ten daya of fts sebafon.          If rejected,     aafd
    office    rhall immediately be&me vacant, and
    the Governor shall,      tithout    delay, make further
    nomi~tfons,      until a 6ht%matfon         takes place.
    But should there be,ne confirmation            durfng the
    session of the Senate, the Governor dhall not
    thereafter     appoint any person to ffll         much va-
    cancy who has been rejectied        by the Senate; but
    may appofnt some other person Co fill             the
    vacancy untfl the next sesrioh of the Semate
    or until the regular       elsatfbn    to aafd office,
    should it seoner occur.         Appointments to va-
    cancies in sfflaea      elective    by the people
    shall only continue uaPtf1 the first           general
    election    thereafkr."
          Artlale    XVI, Seotfon    17, Censtitutlon       of Texaos
          'All sfffcers   wfthln this gtate shall
    contfnue ,to perfezrln the &utfes of their offices
    until thefr successor88 shall be duly quallffed."
Hon. Robert S. Calvert. - Page 4 - V-868


             The problem Is essentially     this.   When a
recess appolnfment 1s made and submitted to the Senate,
as required by Article       IV, Sec.12, but the name 1s
withdrawn before the Senate afflrmatlvely         confirms or
rejects    the appolnte.e, does. that portion of Art. IV3
Set, 12, which provides tha,t lf~ such appointee Is
"regected,    said offlce.,shall   lmmedlately become va-
cant", apply so asp to bar theiappolntee        of all right
to the office     from the time his name 1s withdrawn '
and prevent his holding over as required by Art.XVI,
Sec.17, untfl another. appointment is made?
             ,We find no authorlty      directly   ln polnt on
this question:        Insofar as we have been able to as'
certain,    the question Is one of first         Impression in
Texas.     Utih respect to the situation         where there has
been an affirmative        rejection  by the Senate, we find
only one case.       Even this case leaves some doubt as
to the effect,      If any, which the holdover provisions
of Art. XVI, Sec. 17, hale in the case of an affirmative
rejection.     Denlson v. State, 61 S.W.2d 1017 (Tex.Clv.
App. 1933, error ref.;         122 Teex; ~4-59, 61 S;W.2d 1022).
            There are, however, two prior opinions by this
office   which have construed the effect   of Art.- IV, Sec.12
upon Art. XVI, Sec.17, where the Senate has affirmatively
rejected   anexecutive   appointment.  These~oplnlona reach
opposlte concluslons.     See'Oplnlon O-3343, ~approved
March 28, 1941, and CopferenOe Oplnlon 1809, wrltten by
the then Attorney General, Hon. B. F. Looney, under date
of August 18, lg.j7.,
           We quotes from Conference      Opinlon 1809 as follows:
           "I am in receipt of your communlcatlon
     of the 17th Inst.,     on behalf of Senate Com-
     mlttee on public debts, claims and accounts
     of which you are Chalrman, in which you state
     that durlngthe    regular session of the Thlrty-
     flfth Legfslature    the Senate refused to con-
     firm C. W. Woodman as Labor Commlssloner;
     that during the first     called session the Gover-
     nor submitted to the.Senate ~the name of Frank
     Swor for conflrmatl,on as Labor Commlssloner,
     and he was conflrmed by the Senate.      You fur-
     .+;fEYW,, state that Mr. Swor has failed to
     talce the oath of..offlce    as Labor Commissioner,
    Hon, Robert   S, Calvert   - Page 5.-   V-868



         and, In fact, has failed altogether
         to accept and guzillfy to said office,
         and that C. W, Woodman Is continuing'
         tb dlicharge  the duties of the office,
         and Is drawing the salary as' Labor Com-
         mlsslo~er.
               IYou cob1 attention to the provf-
         slons of Section 12, Article  4 of the
         Constitution.  a D
               "After maklng this statement you
        propound the ,following    quastlon:~
                           ..   r
               "Does~thia 6jrticie of the Conetl-
        tution,   under the statement 'of fasts set
        out herein, authorize the said Woodman
        to continue to fi3;3. the office     02 Labor-'..
        Comm&ssloner and te draw his salary
        therefor?                       .

               "If the artlhle       of the Consti$ution
        -just quoted was the only provision         in
         theXonst$tutlcip      relating   to the subject,
         your question siiould.be answered In the
         negat~lve.     In this connectlon,     however,
         I'.be& to.call    attention    to Section 17 of
         Artfcle   16 of the Constitution,       as fel-
         JOWL?'.
               "#All offlcers    within thls state
         shall continue to perform the dutles
        .of thelti'offlcea   -until their successors
.
         shall be duly qualif1ed.Q
               “Construfng these different    pro-
        ,vlslons of the Constitution    together,
         and they must beg so construed.as    to give
        meanfng to each, I am of the opinion
         that.%.   Woodman, under the facts stated,
        will continue to discharge the duties of
        the oftfce until hfs successor      shall be
        appointedand qualified,
               "The term 'vacancy@ Is used tiffh
        varying meanings.     There may be a con-
        structive   vacancy and yet the office  may
                                                  .
    Hon. Robert S. Calvert   - Page 6 - v-868


         be physically    occupied.   You will note
         the language of Stictlon 17 just quoted.
         It does not say that the incumbents after
         his term expires shall hold the office,
         but rshall.continue     to perform the duties
         of their offices    until their successors
         shall be duly quallfled.      e e e-i
                "I beg, therefore,  to answer your
         first   question just quoted In the afflrm-
         atlve;   that Is to say, until the suc-
         cessor of Mr. Woodman qualifies     he Is by
         virtue of the Constltutfon,,authorlzed
         to discharge the duties of the office     and
         to collect    the salary therefor.
               "If the Governor, Instead of noml-
        natlng Woodman to succeed himself,    had
        nomfnated Brown, and if on the re,jectlon
        of Brown by the Senate, the Governor had
        nominated Jones9 and If Jones after be-
        ing conffrmed had refused to accept the
        office    and qualify, as Swor has done, no
        one would entertain    a doubt but Mr. Wood-
        man could, under the circumstances,     con-
        tinue to discharge the duties of the of-
        flee,   pending the.appointqent  and qualffl-
        cation of his succemoi-.“.
              We quote from Oplnfon O-3343      as follows:

-              "We beg to reply to your letter       of
        March 17, 1941, requestlng        our opinion as
        to whether your tenurk~ of the office        of
        State Adftor     and'Efflclency,    Expert ended
        when the:Senate regected your appointment,
        or whether it ls'your       duty to hold the of-
        fice   'de facto! until another offldlal
        ia appoirited and has ,qualfffed.       Pertinent
        facts are as followa         Poti prior term In
        the office    ended on September 13, 1940, at .~
        which time you were appointed by the Gover-
        nor to succeed yourself,       after which you
        seasonably filed your oath and bond; on
        January 22, 1941, the Governop aubmltted
        your name to the Senate for confirmation;
        and on March 6,'19.41, such ConffrnrPtlon was
        regected,    o o o
   Ea.   Robert S. Calvert    - Page 7 -v-O68


                  “As already noted, Article   16,
         SeCtIan 17 is a general prevision,        while
         Section 12 of Article 4 Is a apeclal ant
         dealing with this identical      problem,      To
         hold that Section 17 Is effective        here,
         in our eplnfon, would be to nulllfy        a
         part of sald Section 12 of AP$fcle 4, and
         thus a genePa prevision       would be held to
         control the ape&al       one, which ia con-
         Wary to the well establl6hed        rmle sf cen-
         stmatf0n.        On the other hand;thePe     fs
         ample room fer Article 16, Section 17;
         to opePate without applying ft to this
         klnd of situation.       Dhder the fnterpre-
         tatien &l&h ice have givea both pravI-
         alens survive and fun&ion.
               “It Is our considered oplnlon that
         your dutles and tenure of office   ended
         en March 6, 19k1, when yeur appointment
         was rejacted  by the Senater“
               It is evident that the point of conflict         be-
  tween these opinions Is whether Art. Iv, Sec.12 and
  Art. XVT, Sec.17 should be construed together so as to
  permit a ngected      appointee to hold oveP* This precise
  question was not before the court in                             0
  supra s The court mentioned both con
  vfsfone 0 But ft mentioned them only in &nneotlon with
  the obntentfon by~the.regeatod        appofnfee,   M&en,      that
  Art. IV9 Sec.12 had no application         to hfs sftuatfesr
_ (In effeet.that     the Senate was not.requfred       to aOhffPm
  his appointmont)     aface under Art,    XVI    See,13 there was
  a@ vaaaney In efffce,      it befog the duty o$ the ileum-
  ~$n&s~~hnaon,           to @old over after the expiration
                    The court found that in Texas the expi-
  ration of a’tera of office       creates a vacancy, which
  the Governor may ill1 by appointment under Art. IV,
  Sec.12.    Howeve~~   the court dld say that Art. IV,
  Sec.12 “denies to a nomfneep whose conffraption           has
  been rejected     by the Senate, any right whatever to
  occupy the office     or to dfschaPg,e, after such rejection,
  any of the duties thereof.”        If the ceurt Intended by
  this to say that.a rcgected appolntee may net hold
  over under Art. XVI, Seco 17 until        a conffrmatlen     1s had,
  then ft is obvious that a hiatus %n office           may result.
  Had Denlson Instead of Johnson been the Incumbent and had
  he been appointed to mcceed hlrselfi          could he have held
.




    Hon. Robert S. Calvert      .- Page 8 -v-868


    over under Art. XVI, Sec.171    Since .this question
    and because th$ matter of who held over in the of-
    fice,  if anyone, wa8 not before the court, the case
    1s not authority except perhaps in the base of an
    affirmative  rejection,
                 On the ouentlon of whether’or not the end
     of a term of office       creates .a vacancy in office,
    Texas appears to Abe iq; the minorftga : Peopza;;.          zhrls-
     Man, 123 P,2d 368~-372 (Wyo. Sup.1942);          De          *
    State :9 suprap aid ca’ecs ,thereln cited.        UiGFE-ru1e
    ‘ITTE Iwed by the ma.loI’fty of states.      the Incumbent holda
    over after-his     terii, either by vlr&ae of copstltutfon-
    al or statutory prov.lslons,        and unleaa.he realgns,      dies
    or abandons the offlce,~remain&;~ 1-n the office         until the
    new appointee has been confirmad by the Senate and un-
    til he qualj.fles.       Under this rule a recesa~ Appointee
    would not be entitled        ‘to the office  by.vlrtue   oft ap-
    pointment alone but would .be .requlrtd:-to         wait until
    the next meeting of the ~Stnttt         and confirmation    by
    that body before&he could,enter          the off&t,    the lncy-
    bent fn the meantime hol@ihg over. ‘However, If the
    Oncumbtnt rtylgns,       dies; or abandons the office,       a
    vakancy occura In the sense         that the, new appointee may
    enter the office.        People v. Christian,     supra.    Slnct~
    in Texas the end of a term of office          createa. a va~cancy.
    in the sense that a new appointee can enter the office;
    a new appointment may be made and such appolntet~le              en-
    titled   to the offlce,        The r&al basis of the,dfstlnc-
    tlon between the majority viewand the tiew in Texas Is
    with respect to the tl#e when atid the c.lrcumetancea
    under which the new appoffitte may undertake the offlce.
                In adoptlng the so-called    mfnorfty view, we
    doubt that the Texas courta intended to thereby’create
    a situation   under which a.hlatus    in office   could OP
    right occur.    As stated in the decisions      of the courts
    adoptfng elther view, their purpose.18 to prevent a
    hiatus In offfce.     This is done in Texas by permlttfng
    the new appointee to at once take offlce        even though
    the appointment be, Incomplete,     and In other states
    by lnsurlng holding over by,the Incumbent until the
    new appointment is In fact comp&*tt.        It is obvious
    that no hiatus could occur under the majority view.
    It la equally obvious that In Texas unless ,the new
    appointee be permitted to hold over until hia successor
    qualifies,   a hiatus Will result.     To apply the holding
    of Opinion O-3343 or construe the holding in Denlson
    v. State as applicable    to the ,factu here, woum
Hon. Robert S. Calvtrt     - Page 9 - V-868


 to create rather than prevent hiatus In office,         and
would be geing further than we believe the Texas
 courts Intended to go in adopting thelr minority view.
 In addltlon,   Art. XVI, Sec.17 Is denied any appllca-
 tlon.   Opinion O-3343 and the court!s      oplnlon in
 Den.lson v9 State, supra, are predicated      upon the express
‘language of Art. IV0 Sec.12,    relating    to rejeotlons.
Clearly then, unless     there Is an express rejection,
Art, IV, Sec. 12 must be construed together with Art.
XVI, Sec,li' as Indicated by Conference Oplnlon 1809.
Where,   as here, the Senate takes no action on the
appointment, the appointee holds over pursuant to
Art. XVI, Sec,l7    until he resigns,    dies, abandons the
office,   or until his successor    Is appointed.
            Our answer to the problem raised by the ap-
pointment and confirmation   of E, V. Spence to the office
of Interstate   Compact Commissioner Is dependent upon wht-
ther @r not he now oacupits such office,
             Membership on the Board of Water Engineers
and holding the office    of Interstate      Compact Comml'ssloner,
both offices    of emolument, would clearly      be in violation
of Art. XVI, Sec,~40 Of the Constitution        &I Texas.    When
the same person occupies two suah.offlces,          his acceptance
and quallflcatlon    for the second office      Ipso facto and as
a matter of law vacatea the first       offlct,     But until1
there 1s an acceptance and qualification         for the second
offlce  he does not occunv It and there 1s no abandonment
or vacation of the first    office.




           There appearsto be some conflict       In Texas
whether acceptance and entering the duties of the second
office, without formal quallflcatlon     by taklng the oath
or making the bond, ~111 vacatwthe     first   office,  or
whether there must be ln addition a formal qualification
to the second office  before the first    Is vacated.    Com-
pare Odtm v. Slnton Ind, School District       supra with
Martin v.~ Grandvlew Ind, School DlstrfcE    [ supra 1 and
Han, Robert    S. Calvert   - ‘Page 10 -V-868


Keel v. Railroad Corn., 107 S.W.2d 439 (Tex.Clv.App.
1937. error ref. 1.. &evertheleas.    we understand the
f&i    heYe to bt’that    E. V. Spence Is still   serving
on the Board, haa not begun his duties as Commfssloner,
has not qualified     as Commissioner by taking the oath,
and has otherwlse,made~no formal acceptance of the
office  OS Interstatl.Compact~Commls~lone~;       It seems
clear that he’ does not occupy the second office       to
whlck he has beeh appointed and,conflrmed       under clr-
cumstanoes which would tionatltute an Ipso facto vaca-
tion of his Board membership,
            It is ou; opinion that E. V. Spence 1s still
a member of tht,#Board of Water Engfneers,by~vlrtue      of
Article   XVI, Sec.17 of t.ht Constitution  and wJ1.J so
remain until his successoy Is appointed, and qu~ll.fles,
OF unbil hk accepts and qtialifiea    for the office  of
Interstate, Compaat Oaaimiesioner,    Such being the cape,
he Is entitled   to the balaiy lncl&ntai    to his Board
membership,
           Accord@g   to House Bll,l 594, 51at L$?glslature,
the salary of the Interstate     Compact Couimlsslont~ does
not commenoe. until September ‘1, ~1949. Even though. the
Act by virtue of Its’ emergency clause and passage by the
ntces.sary vote became effective    upon Its pa~saage, we
doubt that the .&egislaturt   Intended that the office   be
occupied by the appolntet,    or that he accept and qualify,
until the salary tb,,.hlch the office    la entitled  becomes
available
        *

                             SUMMARY
                   A rectas appolntee,s requlrlng
              Senate confirmation,    who was appolnt-
              ed to succeed hImself and whose name
              ie withdrawn with the consent of the’.
              Senate, continuea.to    hold over In of-
              fice   under Artlole  XVI, Sec.17, Con-
              stitution   of Tta$as, untll’hls  auc-.
              cessor is appolnted and qualifies.
                 Executive appointment and Senate
           confirmation   of the same person for
           a second office of emolumtn~t dots not
           vacate the flrst   offige until there
           has been an acceptance and quallflca-
           tion for the second office.    .Odem v.
Hon. Robert   S. Calvert   - Page   11-V-868



          Sinton Ind. School
          1090 (C         "
          Rose Inz?ich%
               . .   1004 (1935).
                                 Yours very truly
                           ATTORNXYGENWALOF!?EXAS




                            BY        Ii. D. Pruttt, Jr.
HDP:bt                                        Asslstant
