 Honorable Houghton Brownlee, Chairman
'Nominations Committee
 The,Senate
 Au&In, Texas

Dear Mr. Brownlee:                  Opinion No. O-5260

                                    Re:   Necessity of confirmation by
                                          the Senate of the appoint-
                                          ment of a member of the Board
                                          of the Nueces River Conserva-
                                          tion and Reclamation District.

         We beg to acknowledge receipt of your letter of May 6, 1943,
submitting the following question for the opinion of this department:

          "Is It necessary for the appointment of a member of the
     Board of the Nuecea River Conservation and Reclamation Dis-
     trict to be confirmed by the Senate?"

          Members of the Board of Directors of the Nueces River Conser-
vation and Reclamation District hold State offices. Lower Colorado River
Authority v. McGraw, 125 Tex. 268, 83 S. W. (2) 629. -

          The Act creating the Nueces River Conservation and Reclamation
District provides that members of the Board of Directors of the District
shall be appointed to office by "designation of the Board of Water Engi-
neers, subject to the approval of the Governor." (Section 6, Acts of
1935, 44th Legislature, 1st. Called Session, p. 1660, Ch.,27, as amended
by Acts of.1937, 45th Legislature, 2d Called Session, p. 1891, Ch. 20,
Sec. 2). In other words, the Legislature has vested in the Board of
Water Engineers the power to name the Directors of the District, and
has placed the power to confirm or reject the Directors~thua named with
the Governor.

          Article 4, Section XII, of the Texas Constitution, provides:

          "All vacancies in etate or district offices except mem-
     bers of the Legislature, shall be filled unless otherwise pro-
     vided 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 aaid appointee, or some other
     person to fill such vacancy, shall be nominated to the Senate
Honorable Houghton Brownlee - page 2 (O-5280)



     during the first ten days of Its session. If rejected; sai,d
     office shall inunedlatelybecome vacant, and the Governor'shall,
     without &lay, 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 ap-
     point 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. Ap-
     pointments to vacancies in offices elective by the people
     shall only continue until the first general election there-
     after."

          It is to be noted that this Section of the Constitution pro-
vides that appointments to State and district offices shall be made by
the Governor "unless otherwise provided by law". Thus, the Section ex-
pressly allows the Legislature to vest by law the power of appointment
to fill State or district offices inan officer or agency of the State
other than the Governor. All "appointments" to State and district of-
fices made by the Governor are subject to confirmation by the Senate,
under the terms of this Section of the Constitution. Denison v. e,
61 S. W. (2) 1017, writ ref., 61 S. W. (2) 1022; See, also, our Con-
ference Opinion No. 0-3076 and our Opinion No. 0-4864. But Section XII
does not require confirmation by the Senate where the Legislature has
vested the appointing power in another than the Governor.

          Thus, the inquiry here   is whether the Governor, in approving
or rejecting the nominees of the   Board of Water Engineers, is "appoint-
ing" persons to fill the offices   of Directors of the Board of the Dis-
trict, within the meaning of the   Constitution, Article 4, Section XII.

          In Conference Opinion No. 0-3076, we held that the word "ap-
pointment" in Article 4, Section XII, as applied to the Governor's ac-
tion, meant "nomination"; that the appointment to office required joint
action, to-wit, nomination by the Governor and confirmation by the Sen-
ate. Thus, freely translated, SectiouXII of Article 4 provides that
where the power to name the person who shall fill State and district
offices shall remain in the Governor, those named by the Governor shall
be subject to confirmation or rejection by the Senate. In the Act un-
der consideration, the Governor is not given the power to nominate the
Board of Directors of the District. That power is vested in the Board
of Water Engineers. The power given to the Governor Is purely negative
in character. He cannot name the Board members, but can exercise only
the power to approve or reject those named by the Board of Water Bngi-
neers. Since the Constitution requires confirmation by the Senate only
where the power of nominating the person to fill a State or district
office is exercised by the Governor, it follows that, in the absence
of a provision in the law creating the Nueces District requiring
. .   .   r.




               Honorable Houghton Bromlee   - page 3 (0-5280)



               confirmtion by the Senate In addition to confirmation by the Governor,
               it is not necessary that the appointment of a member of the Board of
               the District be confirmed by the Senate.

                                                                Very truly yours

               APPROVED MAY 7, 1943                        ATTCRNEYGENERALOFTEXAS

               /s/ Gerald C. Mann

               ATl!OPJiEYGENEBALOFTEXAS                    By   /II/R. W. Fairchild
                                                                    R. W. Fairchild
                                                                          Assistant

               RWF-MU-IM


                                                    APPROVED
                                                    OPINION
                                                   COMMITTEE
                                                   BY /s/ Q'B
                                                     CHAIRMAN
