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DAN MORALES
 ATTORSEY
       GENERAL                            February 23, 1993


      Honorable Gonzalo Barrientos                 opinion No. DM-203
      Chairman
      Committee on Nominations                     Re: Status      of    “recess  gubematorisJ
      Texas State Senate                           appointees who are replaced by other
      P.O. Box 12068                               nominees before the senate has had the
      Austin, Texas 78711                          opporhmity to contirm or reject them in a
                                                   regular or special session” (RQ-490)

      Dear Senator Bari-ientos:

              You have requested our opinion as to the status of “recess gubernatorial
      [appointees] who are replaced by other nominees before the Senate has @tad] the
      opportunity to contirm or reject them in a regular or special session.” Article IV, section
      12 of the Texas Constitution provides, in part:

                    (a) All vacancies in State or district offices, except members of
                the Legislature, shag be filled unless otherwise provided by law by
                appointment of the Govemor.
                    (b) An appointment of the Governor made during a session of
                the Senate shall be with the advice and consent of two-thirds of the
                Senate present.

                     (c) In accordance with this section, the Senate may give its
                advice and consent on an appointment of the Governor made during
                a recess of the Senate. To be contkned, the appointment must be
                with the advice and consent of two-thirds of the Senate present. If
                an appointment of the Governor is made during the recess of the
                Senate, the Governor shag nominate the uppoimee. or some other
                person toflll the swcuncy,to the Senate during the@          ten &s of
                its next session following the appointment. If the Senate does not
                confirm a person under this subsection, the Governor shah nominate
                in accordance with this section the recess appointee or another
                person to fill the vacancy during the first ten days of each subsequent
                session of the Senate until a confnmation occurs. If the Governor
                does not nominate a person to the Senate during the first ten days of
                a session of the Senate as required by this subsection, the Senate at
                that session may consider the recess appointee aa if the Governor had
                nominated the appointee.



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               (d) If the Senate, at any special session, does not take 6nal
          action to contIrm or reject a previously uncontimted recess appointee
          or another person nominated to 6ll the vacancy for which the
          appointment was made:

                (1) the Governor after the session may appoint another person
          totillthevaclurcy.and
               (2) the appointee, if otherwise qualikl and if not removed as
          provided by law, is entitled to continue in office until the earlier of
          the following occurs:
               (A) the Senate rejects the appointee at a subsequent session; or

              (B) the Governor appoints another person to till the vacancy
          under Subdivision (I) of this subsection

              (e) If the Senate, at a regular session, does not take tInal action
          to wn6rm or reject a previously unconSrmed recess appointee or
          another person nominated to till the vacancy for which the
          appointment was made, the appointee or other perso& as
          appropriate, is considered to be rejected by the Senate when the
          Senate session ends.

               (t) If an appointee is rejected, the office shall immediately
          become vacant, and the Governor shall, without delay, make tiuther
          nomhations, until a cot&nation takes place. Ifa person has been
          rejected by the Senate to till a vacancy, the Governor may not
          appoint the person to fill the vacancy or. during the term of the
          vacancy for which the person was rejected, to fill another vacancy in
          the same office or on the same board, commission, or other body.
          [Emphasis added.]

       When the Governor makes a recess appointment, subsection (c) requires that she
submit to the senate, during the tirst ten days of the next setion following the
appointment, either the name of the appointee “or some other person.” Furthermore, if
the governor fails to submit any name, the senate “may consider the recess appointee as if
the Governor had nominated the appointee.” Subsections (d) and (e) descrilx the
consequences of senate inaction in, respectively, a regular session and a special session.

         As an example, you indicate that, in May 1992, the governor appointed a particular
individual to be Commissioner of Health and Human Services. That appointee resigned
the following month and another person was immediately appointed to till the vacancy. In
our opinion, nothing in article IV, section 12, or any other provision would require the
governor to submit to the senate the name of the first appointee. In addition, the
constitutional language, by directing the governor to “nominate the appointee, or some



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Honorable Go40      Barrientos - Page 3      (DM-203)




otherperson to till the vacancy,” contemplates that the governor has no duty to submit the
name of a previous appointee. If, under subsection (c), she may nominate a person who
has never previously held the position rather than a prior appointee, it seems obvious that
she may nominate her second appointee rather than her first.

        Attorney General Opinion JM-I 161 (1990) is not to the contrary. In that opinion,
the attorney general considered an attempt by a first appointee to resign his office during a
special legislative session. The opinion declared that, because the attempted resignation
was not in writing, it did not effect a valid surrender of the office under the terms of
subsection 201.001(a) of the Election Code. In the situation you pose, we will presume
that the first appointee submitted a written resignation. Under those circumstances, the
second appointee became the dejure office holder as of the date of his appointment.

         Attorney General Opinion JM-1 I61 is instructive in determining whether the acts
of the first appointee must be subsequently “validated” by the legislature. Under the terms
of article IV, section 12, the first appointee was the de jure office holder until the second
appointee was appointed to and qualified for the position. Since the legislature did not
convene at any time during the first appointee’s tenure, no legislative action regarding this
appointee was either necessary or proper. Since the first appointee held the office dejure
during his brief tenure, a subsequent “rejection” of that brief appointment would, under the
constitution, have no effect.



                                   SUMMARY

               When the governor appoints an individual to a position while the
          legislature is in recess, that person resigns the position before the
          legislature next convenes, and a second appointee is named to the
          position, there is no requirement that the name of thefirsr appointee
          be submitted to the legislature. Acts of the first appointee need not
          be validated by the legislature for any period in which that person
          held the position dejure.




                                                      DAN      MORALES
                                                      Attorney General of Texas




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WILL PRYOR
Fii Assistant Attorney General

MARYKELLER
Deputy Assistant Attorney General

RENEAHICKS
Special Assistant Anomey General

MADELEINE B. JOHNSON
Chair, Opiion Committee

Prepared by Rick Gilpin
Assistant Attorney General




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