                           THE   ATTY)RNEY                GENERAL
                                     OF     %%XAS

cEbawYoRu    c.   MARTIN
                                 AUSTIN.    TEXAR     78711
  Ax-l-ORniBXGGNERAX.
                                 August 13, 1968


       Honorable John Connally                      Opinion No. M- 267,,
       Governor of Texas
       Capitol Station                              Re:   Whether Honorable J. C. Looney
       Austin, Texas                                      Is a member of the’~Publlc
                                                          Safety Ctimmission’
                                                                            where ‘the
                                                          Senate failed~to ‘confirm‘or’
                                                          reject his nomination’,as’re-
                                                          guired by Article 4413(2),
       Dear Governor Connally:                            V.C.S.
                    In your request for an opinion you state the following:
                 “On November 27, 1967, I appointed Mr.
            J.,C. Looney of Edlnburg, Hldalgo County, to
            the Public Safety Commlssion’to fill the un-
            expired term of Mr. John Peace’,who resigned.
            The term will expire December 31, 1969: By
            message to the Senate of the 60th Legislature,
            First Called Session, dated June 5, 1968, I
            asked the advice, consent, and confirmation of
            the Senate with respect to this appolntment~.
            At the time of its adjournment sine die on July
            3, 1968, the Senate had not acted to either
            confirm or reject his appointment. I have not
            requested Mr. Looney’s resignation, nor have I
            appointed anyone else to fill the unexpired term.
                 ‘%r. Looney was appointed ursuant to the
            following provision of Article E413(2), Vernon’s
            Civil Statutes:
                  ‘In the event of a vacancy occurring on
            said Commission, the Governor shall appoint a
            new member of the Commission to fill the said
            vacancy for such unexpired term, such appoint-
            ment to be subject to the advice and consent
            of the Senate of the State of Texas, at the
            next &ession thereof; ’
                 “Under the facts which I have set out,
            please give me your opinion as to the following
            questions:
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                                                                        ..




 Honorable John Connally, page 2    (M-267)


           1. IsMr'J.    C. Loon&a   member'cf~the
      Public Safety Commlasion until his successor
      is named and has aualifled?
           2.~ Does Mr. J. C. Looney's nomination
      stlll~pend before~the Senate during the Legls-
      lature's next session?"
            Texas Constitution, Article IV, Section 12, provides as
 follows:
          "All vacancies in State or district offices,
     except members'of the Legislature, shall'be filled
     unless otherwise provided by law, by appointment
     .ofthe Governor, which'appolntment, if ~madedurlng
     its session, shall be with the advice and consent
     of two-thirds of the Senate present. 'If made
     during the recess'of the Senate; the sald: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 offlce shall'
     immediately become vacant, and the Gcvernoc shall,
     without delay, make further nom~inations,tint11 a .'
     confirmation,takes place. But should there be no
     confirmation during the sesslon'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 con-
     tinue until the first general election thereafter."
           Texas Constitution, Article XVI, Section 17, provides that
  all officers within this State shall continue to perform the duties
,,of their offices until their successors shall be duly qualified.
          In Attorney General's Opinion Number V-868 (19&g), this
 office held that a recess appointee requiring Senate conflrmatlon,
 who was appointed to succeed himself and whose name was withdrawn
 with the consent of the Senate, continued to hold over in office
 until his successor was duly appointed and qualified. In passing
 upon a question very similar to the one under consideration, said
 Attorney General's Opinion Number V-@% held, in part, at page 9
 as follows:                          86%
          II                                                :
           . . .

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Honorable John Connally, Page 3   (M-267)


        ~"Clearly, then, unless'there is anexpress
    rejection, Art. IV, Sec. 12; must be construed
    together with Art. XVI,~Sec. 17, as indicated by
    Conference Opinion 1809. Where, as here;the
    Senate takes no action on the appointment; the'
    appointee holds over pursuant to Art. XVI, Sec..
    17, until he reslgns,.dies;abandons the office,
    or until his successor is appointed."
         The adjournment of the ~Senate without conflrming'the'ap-
pointment of a successor to an office holding over after the~exi-
piratlon of his term does not create a vacancy which can'be'filled
by the Governor alone. Where the appointment Is a recess appolnt-
ment or one made to fill a vacancy inthe office occurring while
the Senate is not In session, the appointee is entitled to'the
office until the Senatesacts adversely'upon his nomination, ,38
Am:Jur:2d 937, Governor, Sec. 7; 42 Am.Jur. 983, Public'Offlcers,
Sec. 142; or until the Governor makes a new appointment. Tex.
Const., Art. IV, Sec. 12.
         In a Missouri case, State ex rel Sikes v, Willlams,.‘222~
MO. 268, 121 S.W. 64, 68 (19Oy), the Court disposed of this ques-
tion as follows:
        "In the meantime, such appointee, after having
   otherwise qualified under the act, is entitled to
   the office until such time as t9e Senate may pass
   adversely upon his appointment.
         Since the Constitution specifies the circumstances under
which the Senate may defeat the Governor's recess appointments,
there is an Implied prohibition against the Senate's power to add
to these circumstances. Walker v. Baker, 145 Tex. 121, 196 S.W.2d
324 (1946). Constitutional or statutory provisions restricting the
right to hold Public office should be strictly construed against
ineligibility.- Kothmann v. Danlels, 397 S.W.2d 940 (Tex.Civ.App.
1965, no writ). Your first question is answered in the affirmative.
         We answer your second question in the negative for the
reason that the matter must be resubmitted by the Governor to the
next Senate for action. He may submit the same or some other name
within the first ten days of the next legislative session.


         Honorable J. C. Looney is a member of the
    Public Safety Commission, the Senate failing to
    confirm or reject his appointment by the Governor

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Honorable John Connally, page 4 (M-267)


   .to'fill the vacancy as required by Article 4413(P),
   .Vernon's Civil Statutes.
         The nomination no longer pends before the Senate
    and it is incumbent upon the Governor to submit the
    same or some other name within the first ten days
    of the next legislative session.
                             VeH   truly yours,


                                        C. MARTIN
                                        General of Texas
Prepared by Jack Sparks
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Hawthorne Phillips, Chalrman
Kerns Taylor,Co-Chairman
John Fainter
Tom Thurmond
Mark White
John Banks
A. J. CARUBBI, JR.
Executive Assistant




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