             THE     ATTORNEY    GENERAL
                        OF TEXAS




Honorable Ted B. Lyon          Opinion No. JM-1161   (Corrected)
Chairman
Subcommittee on Elections      Re:   Status of an individual
Texas State Senate             who is appointed   and sworn
P. 0. Box 12068                in as a district judge during
Austin, Texas   78711          a legislative    recess   but
                               whose name is not submitted
                               to the senate for confirma-
                               tion, and related   questions
                               (RQ-1898)

Dear Senator Lyon:

     you ask about the status of a person appointed by the
governor to a new district judgeship in Dallas during a time
when the legislature was not in session and whose name was
not submitted to the senate for confirmation when, at the
call of the governor, that body later convened in special
session. Specifically,   you ask:   (1) whether  the person
ever officially became a district judge, and if so, at what
point did he no longer occupy that station; (2) whether   his
rulings as a judge were valid:  and (3) whether he would be
entitled to vacation time for such service, to remain on the
state payroll until it became exhausted, and thereafter    to
serve as a visiting district judge.

     We are advised that Governor Clements    appointed   the
individual involved as judge of the 363rd Judicial   District
court of Dallas County on August 29, 1989, and that on
September 1, 1989, he subsequently qualified    and assumed
office. The Texas Legislature was not in session at that
time, but pursuant to the call of the governor dated August
23rd, 1989, it convened   in special session November     14,
1989. The special session ended December     12, 1989, when
both houses adjourned   sine die.   On December    13, 1989,
Governor Clements appointed another person to be the judge
of the 363rd Judicial District Court of Dallas County, with
a notation that the person initially appointed had resigned.
On December 14, 1989, the second appointee qualified for the
office by officially   filing an oath of office with the
secretary of state.




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Honorable Ted B. Lyon - Page 2      (JM-1161)




     In fact, we are advised, the first appointee made an
oral request to the governor November 23, 1989, that he be
permitted to resign and that his name not be submitted    to
the senate for confirmation, but the request was not put in
writing nor was the governor's acceptance of the resignation
put in writing.  As noted, however, no name was submitted to
the senate, and the day following the adjournment of the
special session, a successor was appointed to the office.

     The 363rd Judicial District (Dallas County) was created
by the legislature in 1989 to be effective       September   1,
1989. Acts 1989, 71st Leg., ch. 632, at 2104.1        Although
creation of the gourt was delayed until September 1, 1989
(section 1 of the legislative act so specified), the portion
of the act creating the court on that date became    effective
August 28, 1989, ninety  days after the date the   legislature
adjourned.  See Tex. Const. art. III, 5 39. Thus, the law
creating the 363rd District Court of Dallas County as of
September 1, 1989, was in effect on August      29, 1989, the
date the governor made his    first appointment   to fill the
office. Section 201.027 of the Election Code states that if
a new office is created,   a vacancy occurs on the effective
date of the statute creating the office or on the date when
the order creating the office is adopted.
                                                                        1
     The general power of the governor to fill vacancies   in
public offices is found in article IV, section 12, of the
constitution; the specific power to fill judicial vacancies
is located in article V, section 28, thereof. They are to
be read together.   White v. Sturns, 651 S.W.2d 372     (Tex.
APP. - Austin 1983, writ ref'd n.r.e).

     The latter provision declares that vacancies     in the
office of judges of "the supreme court, the court of
criminal appeals and the district courts11 shall be filled by
the governor "until the next succeeding general    election."
Section 12 of article IV reads:

           (a) 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,



     1. The act    is   codified     as   section   24.508   of   the
Government Code.




                                   p. 6123
     Honorable Ted B. Lyon - Page 3     (JM-1161)



_-

            shall be with the advice and consent of
            two-thirds of the Senate present.     If made
            during the 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 may appoint some other person to fill the
            vacancy until the next session of 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 next general
            election.

                 (b) The Legislature   by general  law may
             limit the term to be served by a person
             appointed by the Governor   to fill a vacancy
             in a state or district office to a period
             that ends before the vacant term otherwise
             expires or, for an elective office, before
             the next election at which the vacancy is to
             be filled, if the appointment is made on or
             after November   1   preceding   the   general
             election   for the succeeding term of the
             office of Governor  and the Governor is not
             elected at that election to the succeeding
             term. For purposes of this subsection,     the
             expiration   of a term of office or        the
             creation of a new office constitutes         a
             vacancy.2

          Although the power of the governor to appoint high
     judicial officers pursuant to article V, section 28, is not
     by that section expressly made subject to confirmation   by



          2. Subsection (b) of section   12 was added to the
     constitution in 1987. See V.T.C.S. art. 19a (implementing
     statute).




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Honorable Ted B. Lyon - Page 4     (JM-1161)




the senate, confirmation pursuant to article IV, section 12,
is required nevertheless.   White, sunra. When the legisla-
ture is not in session, the governor's judicial   appointees
may qualify, take office, and perform the duties     of the
office as interim appointees, subject to later confirmation
by the senate. Bx narte Sanders 215 S.W.2d 325 (Tex. 1948);
8~8 Walker v. B key 196 S.W.Zd 324 (Tex. 1946); Stamns v.
            S.W? 77;   (Tex. Civ. App. - Galveston 1914, no
            Y v. Bovd, 66 S.W. 874 (Tex. Civ. App. 1902, no
writ).

     Inasmuch as the legislature    in this case did not
convene until after the governor made his first appointment,
it follows that upon qualifying,      the first    appointee
officially became the judge of the 363rd District Court of
Dallas County.    The question of when the first appointee
ceased to be the judge of that court presents        a more
difficult matter.

     The most obvious conclusion about the matter at hand is
that the attempted oral resignation of the first appointee
was ineffective because subsection (a) of section 201.001 of
the Election Code reads:

           To be effective, a public officer's    re-
        signation or an officer-electps   declination
        must be in writing and signed by the officer
        or officer-elect and delivered to the appro-
        priate authority for acting on the resigna-
        tion or declination.   The authority may not
        refuse to accept a resignation.

       The governor may not arbitrarily remove an appointee
from an office to which he was appointed during a recess by
later during the recess summarily     appointing another to
succeed the first appointee. Article XV, section 9, of the
constitution, adopted in 1980, reads:

            (a) In addition to the other procedures
        provided by law for removal of public offi-
        cers, the governor who appoints an officer
        may remove the officer with the advice and
        consent of two-thirds of the members of the
        senate present.

            (b) If the legislature is not in session
        when the governor    desires to remove    an
        officer, the governor shall call a special
        session of the senate for consideration   of




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Honorable Ted B. Lyon - Page 5     (JM-1161)




        the proposed  removal. The session may   not
        exceed two days in duration.

     The provision  means, in our opinion, that a person
appointed to office by the governor when the legislature  is
not in session cannot be removed from office by the governor
except with the concurrence of the necessary      senatorial
vote. a    Dorenfield  v. State 73 S.W.2d 83 (Tex. 1934).
Inasmuch as no senate aotio;l was then possible,         the
governor's original appointee could not have lost his office
by action of the governor before the legislature    convened
November 14, 1989.

     In our opinion, the failure of the governor to submit
to the senate the name of a nominee during the special
session that began November  14, 1989, neither effected the
removal of the nominee from office instant r nor defeated
the constitutional  requirement that his rezess appointee,
in order to continue in office, meet approval during the
session of two-thirds  of the senate present.   Tex. Const.
art. IV, 5 12; &   art. XV, § 9.

     Section 12(a) of article IV provides   that if the
governor makes an appointment to fill a vacancy during a
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.  (Emphasis added.)

The constitutional provision does not leave room for other
alternatives.   z    Walker,  sunra.   In default   of  the
governor nominating "some other person" to fill the vacancy
within the first ten days of the session, the "said
appointee," in our opinion,  is inso facto nominated to the
senate.

     In our opinion, when the governor failed to submit the
name of another person to fill the vacancy     on the 363rd
Judicial District Court within the first ten days of the
called legislative session that began November 14, 1989, the
name of his original nominee to that post was at that
juncture before the senate for confirmation or rejection.
Section 9 of article XV prevented the governor's failure to
submit the appointee's name to the senate from operating  as
a removal from office.




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Honorable Ted B. Lyon - Page 6   (JM-1161)




     Because the attempted oral resignation of the original
appointee was not effective under Election     Code section
201.001(a), and the governor did not attempt to remove him
from office with the advice and consent of the senate
pursuant to article XV, section 9, of the constitution,
there was no vacancy to be filled when the governor
purported to appoint another person judge of the 363rd
Judicial District Court on December 13, 1989, unless     the
absence of senate confirmation   of the original   appointee
during its session worked a rejection   of the appointment.
The original  appointee would continue to be the de iure
judge of the court.

     Article IV, section 12, was construed   by the Austin
Court of Civil Appeals in Denison v. State, 61 S.W.2d 1017
(Tex. Civ. App. - Austin), wref'd,               61 S.W.2d
1022 (Tex. 1933). There, the court said:

        [T]he clear import, language, and requirement
        of the Constitution is that any and every
        appointment by the Governor to fill a vacancy
        in a state or district office must be with
        the advice and consent of two-thirds of the
        Senate as in said section 12 provided.

Id. at 1021. The Denison case tested the authority of the
governor to commission an appointee whom the senate had
failed to confirm by a two-thirds vote.   In its per curiam
opinion refusing the writ, the supreme court said:

        The only way     the senate could     Confirm
        [Denison] was for 'two-thirds of the Senate
        pm'      to advise and consent thereto. When
        the Senate Journal declared he was       'Not
        confirmed,' it could only mean that two-
        thirds of the Senate had not advised      and
        consented to his appointment.   (Emphasis in
        original.)

61 S.W.2d at 1023.

     If the constitution   requires that "any and every"
appointment bfdthe governor to fill a vacancy "must be with
the advice       consent of two-thirds   of the senate" as
provided in section 12, and if the "only way" the original
appointment could be confirmed was "for 'two-thirds of the
senate present'  to advise and consent thereto," then the
failure of the senate to act on his appointment means that
the appointee was "not confirmed."  A failure to confirm by




                             P. 6127
Honorable Ted B. Lyon - Page 7     (JM-1161)




the required vote (for whatever reason) works a rejection of
the appointment,  in our opinion, whether the nominee     is
"some other person to fill the vacancy"       or "the said
appointee."3

     Nor do we think that once so rejected the appointee
continued to hold office under the "holdover" provision,
article XVI, section 17. 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.

In Attorney General Opinion O-3343 (1941), Attorney   General
Gerald Mann was asked about the status of a person      reap-
pointed by the governor during a senatorial        recess to
succeed himself  as state auditor. The reappointment      was
later rejected by the senate, and the rejected nominee asked
if he continued to hold the office "de facto" until another
official was appointed and qualified. The opinion advised:

        To hold that such an officer would hold 'over
        -- even after he has been rejected -- until a
        successor should be nominated, confirmed  and
        has qualified, would be to open the way to a
        complete disregard of Section 12 of Article
        4, State Constitution.  For, if such an of-
        ficer is not definitely 'out' upon rejection,
        no end logically can be found for         his
        service,  if by chance the Senate should
        adjourn without the appointment, confirmation
        and qualification of a successor. Under that



     3. In the interpretive   commentary following the text
of article IV, section 12, Professor A. J. Thomas says the
limitation on the governor's  power of appointment by which
his power is made subject to the approval of two-thirds    of
the senate is copied from the federal constitution.     Tex.
Const. art. IV, 5 12, interp. commentary (Vernon 1984).
Under the federal Constitution, recess appointments,  unless
confirmed, expire at the end of the next congressional term.
United States v. Woodley, 751 F.2d 1008     (9th Cir. 1985),
cert. denied, 475 U.S. 1048 (1986): see 1 Braden, The
Constitution  of the State of Texas: An Annotated         and
Comnarative Analvsis, at 330 (1977)(article IV, section   12,
"appears to consider failure to confirm as a rejection").




                                 P. 6128
Honorable Ted B. Lyon - Page 8   (JM-1161)




        interpretation, if at some    future time a
        Governor should desire to do so, he could
        maintain his appointee  in office year after
        year, notwithstanding  rejection by the Se-
        nate, by simply failing to nominate or ap-
        point someone else.

     Attorney General Mann decided that the specific     pro-
visions of article IV, section 12, controlled the general
"holdover" provisions of article XVI, section 17, because
otherwise a part of article     IV, section    12, would be
nullified.  Similarly, it was decided in State v. Valentine,
198 S.W. 1006    (Tex. Civ. App. - Fort Worth     1917, writ
ref'd), that article XVI, section 17, had no application
where it conflicted with another, more particular, provision
of the constitution.4     &&&g~   Attorney  General   Opinion
JM-423 (1986). The court in Denison, sunra, said:

        The language [of article IV, section 121, 'If
        rejected,   said  office shall    immediately
        become vacant,   and   the governor     shall,
        without   delay, make further    nominations,
        until a confirmation takes place,'     clearly
        and by necessary   implication  denies to a
        nominee, whose confirmation has been rejected           4



        by the Senate, any right whatever to occupy
        the office or to discharge,      after    such
        rejection, any of the duties thereof.

61 S.W.2d at 1021.

     We are therefore  of the opinion that when the senate
adjourned sine die on December 12, 1989, without  confirming
the recess appointment of the governor's original  appointee
to the bench of the 363rd Judicial   District Court (and no
other person having been nominated by the governor       and
confirmed by the senate to fill the vacancy), the appoint-
ment of the original appointee stood rejected by the senate.



     4. In Attorney   General Opinion M-151 (1967) it was
held that article XVI, section 17, did not operate to extend
the tenure of a judge whose office the constitution declared
vacant upon his attaining   75 years of age and ten years
service. The Texas Supreme Court considered the same matter
in Werlein v. Calvert, 460 S.W.Zd 398 (Tex. 1970) and took
the same position without discussion.




                              P. 6129
Honorable Ted B. Lyon - Page 9     (JM-1161)




Under those circumstances,       notwithstanding  article XVI,
section 17, the office became    immediately vacant -- actually
and not merely constructively    -- and the original  appointee
thereupon ceased to be the       judge of the 363rd Judicial
District COUrt.

     With the matter in that posture, the governor,  follow-
ing the adjournment   of the senate, was free during the
recess to appoint another person to fill the vacancy created
by the senate's failure to confirm the original   appointee,
which he did on December 13, 1989. m    Stamns. sunra.   The
new appointee qualified the following day and immediz:;y
became the judge of the 363rd Judicial      District
subject to later confirmation by the senate or the intervenl
tion of an election.    Until the senate adjourned   without
having confirmed his appointment,    however,  the original
appointee  of the governor was the de iure judge of the
363rd Judicial District Court and his rulings as judge of
that court were the acts of the valid judge of the court.
gee Hx carte Sanders, sunra; Keen v. Featherston, 69 S.W.
983 (Tex. Civ. App. 1902, writ ref'd).

     Some past opinions of this office took a different
position.  One of the most recent was Attorney      General
Opinion H-948 (1977), which was issued prior to the 1980
addition of article XV, section 9, to the constitution,
and prior to the 1983 White v. Sturns decision.   It relied
entirely upon four earlier opinions of this office: Attor-
ney General Opinions M-267   (1968); V-868   (1949); O-4920
(1942); and Op. Tex. Att'y Gen. No. 1809 (To HonHiInnizi
Suiter, Aug. 18, 1917), 1916-1918 Tex. Att'y Gen.
Rep. 424. It neglected to cite or discuss prior opinions of
this office taking an adverse position to those upon which
it relied.5 Attorney General Opinion H-948 concluded:

           Accordingly, it is our opinion that the
        Senate's failure to confirm or reject an
        appointment will prevent the appointment from
        becoming effective and vesting the appointee



     5.  Among the pertinent    opinions Attorney    General
Opinion H-948 ignored were: Attorney General Opinions M-151
(1967); C-57  (1963); WW-530 (1958) ; ww-305, ww-190 (1957) ;
O-3343 (1941) (discussed above): O-1092A, O-1092 (1939); Op.
Tex. Att'y Gen. No. 2910 (To Hon. W. M. Martin, Jan.     21,
1933). 1932-1934 Tex. Att'y Gen. Biennial Rep. 391.




                                 p. 6130 _
Honorable Ted B. Lyon - Page 10 (JM-1161)




        with any right to exercise the duties       of
        office, if the Governor made the appointment
        while the Senate was in session and if the
        individual was not appointed     to    succeed
        himself in office.   If the Senate fails to
        act on a recess appointment or on an appoint-
        ment made during the session of an individual
        to succeed himself in office, the individual
        can continue to exercise the duties of office
        pursuant to the requirements of article    16,
        section 17, of the Texas Constitution,   until
        the Senate subsequently  rejects the nomina-
        tion or until the Governor appoints another
        individual.

     It is obvious that the view Attorney General     Opinion
H-948 espoused would permit the governor, at his pleasure,
to maintain  a non-elective,   recess appointee   in office
indefinitely (and an elective appointee     until the next
election) by the stratagem of not referring the appointment
to the senate or, if the nomination were submitted        and
rejected, by simply refusing to nominate anyone else.

     Attorney General Opinion H-948 relied upon Attorney
General Opinion M-267, which had itself relied upon Attorney
General Opinion V-868.     Attorney  General Opinion V-868
reached an erroneous conclusion because it supposed that "a
hiatus"   in office would result    if unconfirmed    recess
appointees did not continue in office as holdovers  pursuant
to article XVI, section 17 -- overlooking the article     IV,
section 12, power and duty of the governor to fill vacancies
in case there is no confirmation    during a session.    The
lapse influenced the drafter of that opinion to follow a
1917 attorney general opinion (Opinion 1809) rather than the
later Denison decision and Attorney General Opinion O-3343.

     Attorney General Opinion H-948, however, most heavily
relied upon Attorney    General Opinion O-4920.     The 1942
opinion dealt with a statute stating that "The State Board
of Water Enaineers    shall designate,  subject to approval
by the Governor,    the first Board of Directors . . . .'I
(Emphasis added.) Although the statute called for someone
other than the governor to make the appointments and did not
call for senate confirmation,    the 1942 opinion   concluded
that such confirmation    was nevertheless   constitutionally
necessary (though a failure to confirm, it said, did not
result in removal).   It apparently read article IV, section
12, to require senate confirmation of persons appointed     by

                                                                 -.




                             . p. 6131
Honorable Ted B. Lyon - Page 11   (JM-1161)




executive officers other than the governor.6    At the time
Attorney General Opinion H-948 was issued, such a construc-
tion of article IV, section     12, had been repudiated   in
Attorney  General Opinion WW-324    (1957) on article    II,
section  1, grounds     (separation of powers).     See also
Attorney General Opinion JM-58 (1983).

     Attorney General Opinion NW-303 (1981) should   also be
mentioned.  It, too, followed Attorney     General   Opinions
M-267 and V-868 without critical examination.

     We have found Attorney General Opinions MW-303   (1981),
H-948 (1977), M-267 (1968), V-868 (1949). o-4920 (1942), and
Opinion No. 1809    (1917) to be unreliable guides    in the
construction  of article IV, section     12, of the Texas
Constitution.  Either their rationales have been undermined
by later court cases and constitutional    developments,   or
their analyses were faulty from the beginning.      They are
overruled.

     A fundamental principle associated with our republican
form of government is that every public officeholder remains
in his position at the sufferance and for the benefit of the
public, subject to removal from office by edict of the
ballot box at the time of the next election, or before that
time by any other constitutionally      permissible     means.
Tarrant Countv v. Ashmore,   635 S.W.2d 417    (Tex.), cert.
denied, 459 U.S. 1038 (1982). In our opinion, the original
appointee of the governor who qualified and took office
during the recess of the senate was the de iure judge of
the 363rd Judicial District Court until the senate later
adjourned without    confirming  his   appointment   by    the
governor.  Following such adjournment, the office was vacant
actually and not merely constructively   until the governor
appointed another person to fill the vacancy      during   the
recess -- subject to later senate confirmation        or the
intervention of an election.




     6. Attorney General Opinion O-4920 did not regard the
appointments as those of the aovernor,     or the required
gubernatorial approval as a requirement for reconfirmation."
Had it done so, its conclusion that senatorial confirmation
was required would have been correct. See Bernhardt v. Citv
of El Paso, 233 S.W.2d 357 (Tex. Civ. App. - El Paso 1950,
no writ).




                              p. 6132
Honorable Ted B. Lyon - Page 12     (JM-1161)




     We have not been provided sufficient   facts to answer
your questions regarding  the original appointee's  vacation
time or his service as a visiting judge except to say that
in no case could he be considered any longer the judge of
the 363rd Judicial District Court following the adjournment
of the senate. But, otherwise, he would be, in our opinion,
entitled to the same rights and privileges, and subject to
the same duties and responsibilities, of any other district
judge of similar tenure.

                       SUMMARY

           A recess appointee of the governor to a
        district judgeship,   who subsequently   guali-
        fied, became the de iure judge of the court.
        The office became vacant, actually and not
        merely  constructively,    when    the   senate
        adjourned its next session sine die without
        having confirmed the appointee, even though
        neither the appointee's    name, nor that of
        another to fill the vacancy, was submitted to
        the senate.     Following   adjournment,    the
        governor was free to appoint another to hold
        the office during the recess, subject to
        later senate confirmation.      Prior attorney
        general opinions    in   conflict with     this
        opinion are overruled.

                                    Very truly yours,
                                          ,
                                     J-h
                                    JIM     MATTOX
                                    Attorney General of Texas

MARY KELLER
First Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RENEA HICKS
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Bruce Youngblood and
William Walker




                                 p. 6133
