                    March 1, 1977




The Honorable Peyton McKnight        Opinion No. H-948
Chairman
Subcommittee on Nominations          Re: Status of a nomina-
Senate of the State of Texas         tion on which the Senate
Austin,.Texas  78701     '           fails to act.

Dear Chairman McKnight:

     You have asked our opinion regarding the effect of the
Senate's failure to act on a nomination which requires
Senate confirmation. Your question relates to the fairly
unusual situation in which the Senate neither confirms nor
rejects a nomination submitted by the Governor.

     Article 4, section 12 of the Texas Constitution provides:

          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 appoint-
          ment, if made during 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 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 first general election thereafter.

                           P. 3963
The Honorable Peyton McKnight - page 2   (H-948)



     As is apparent from the provisions of article 4, section
12, there are two major categories of appointments, i.e.
those made when the Senate is in session and those made
during the recess of the Senate. We first consider those
made when the Senate is in session.

     Two Attorney General Opinions have considered the Senate's
failure to act on an appointment made while the Legislature
is in session. Attorney General Opinion O-4864 (1942);
Attorney General Opinion 2797 (1930). On both occasions,
the Attorney General concluded that an appointment required
the joint action of the Governor and the Senate before
it became effective. Where the Senate failed to act on
the nomination, the appointment was never complete and the
individual'never obtained any right to assume the office.
Accordingly, we believe it is established that the Senate's
failure to confirm a nomination made while the Senate is
in session renders the appointment a nullity.

     A different case is presented when the appointment is
made during the recess of the Senate. A recess appointee
may immediately take the oath and begin exercising the
duties of the office. Attorney General Opinion M-267 (1968).
Thus, unlike the instance of the individual whose nomination
is made during the session and who may not exercise the
duties of office unless and until the Senate confirms his
appointment, the recess appointee is already exercising
the responsibilities of office at the time his name is
presented to the Senate. Accordingly, it is necessary to
consider the effect of article 16, section 17 of the Texas
Constitution.  That section provides:

             All officers within this State shall
          continue to perform the duties of their
          offices until their successors shall be
          duly qualified.

      The relationship of article 4, section 12, and article
16, section 17, to the Senate's failure to act was discussed
in Attorney General Opinions M-267 (1968) and O-4920 (1942).
Attorney General Opinion O-4920 involved appointments to a
county conservation and reclamation district. The appoint-
ments were made during a recess of the Senate in 1939,
-and it apparently was concluded that Senate confirmation
was not required. The State Auditor questioned the lack
of confirmation in 1942, and the Attorney General indicated


                        P. 3964
The Honorable Peyton McKnight - page 3   (H-948)



that Senate confirmation was required. Between the time
the appointment was made and the time it was determined
that confirmation was necessary, the regular session of the
47th Legislature had met and adjourned. The nominations
were not submitted to the Senate, and of course, no action
was taken by the Senate to confirm or reject them. In
writing on the status of these appointments, Attorney General
Gerald Mann said:

              [Article 4, section 12 of the Constitution]
          does not purport to terminate the authority
          of a recess appointee, except in the event
          of a rejection by refusal to confirm. In
          other words, Section 17, of Article XVI of
          the Constitution, declaring that 'all
          officers within the State shall continue to
          perform the duties of their offices until
          their successor shall be duly qualified,'
          applies to recess appointees, with the
          exception above mentioned -- that is, of
          a rejection of confirmation by the Senate.

             . . . .

             It is our opinion, therefore, that the
          Board members under consideration held over
          under the recess appointments in virtue of
          the Constitution above quoted, (Article
          XVI, Section 17) until their successors
          have been or will be duly appointed and
          qualified. So that, their official acts
          during such tenure are those of lawfully
          constituted officers-~ -
                                 Id. at 5-6.

A similar conclusion was reached in Attorney General Opinion
M-267.

     The reasoning of Attorney General Opinions O-4920
and M-267 is also applicable to appointments, whether made
during the session or recess, of an individual to succeed
himself in an office to which he had previously been
nominated and confirmed.  In such a case the individual
holds over even though the Senate fails to act on his
appointment.  See Attorney General Opinions V-868 (1949);
Op. NO. 1809 (To Honorable Will D. Stiter, Aug. 18, 1917).
1916-1918 Tex. Att'y Gen. Rep.


                         P. 3965
The Honorable Peyton McKnight - page 4 (R-948)



     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 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 appointment 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
nomination or until the Governor appoints another individual.

                     SUMMARY

          The Senate's failure to either confirm
          or reject a nomination will render the
          nomination a nullity if it was made while
          the Senate was in session. If a recess
          appointee's nomination is neither
          confirmed nor rejected by the Senate,
          he may continue to exercise the duties
          of office until his appointment is
          rejected at a subsequent session of the
          Senate or until the Governor makes another
          appointment.




                               Attorney General of Texas




Opinion Committee

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                         P. 3966
