                         May 24, 1990


Honorable William P. Hobby             Opinion No. JM-1179
Lieutenant Governor
P. 0. Box 12068
Austin, Texas   78711                  Re:    Applicability of
                                       Attorney General Opinion
Honorable Bob Bullock                  JM-1161 (1990)
Comptroller of Public Accounts
L.B.J. State Office Building
Austin, Texas   78774
Honorable Chet Edwards
Chairman
Nominations Committee
Texas State Senate
P. 0. Box 12068
Austin, Texas   78711

Gentlemen:
     Each of you has requested advice in regard to Attorney
General Opinion JM-1161 (1990). Mr. Bullock has asked
several questions about the effect of the opinion in
particular circumstances. Governor      Hobby and    Senator
Edwards have asked that the opinion be reconsidered in
regard to the intent of the drafters of the constitution and
in the light of long-standing practices of the senate.
     No arguments have been presented that persuade us to
reconsider Attorney General Opinion JM-1161. We conclude,
however, that the opinion should be applied prospectively
only, asof   Mayl,   1990,l and that recess appointees who
were not confirmed as of that date may be confirmed in the
special session of the legislature that began on that date.
     In Chevron Oil Co. v. Huson, 404 U.S. 97 (1971), the
United States Supreme Court set out three factors to be
considered in determining whether a decision is to be


       1. Attorney General Opinion JM-1161 was dated April
20,   1990, but was not publicly released until May 1, 1990.



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Honorable Wil-liam--P-=Hobbjr.
                           ~~~--~(;113:.1129,).
Honorable Bob Bullock
Honorable Chet Edwards
Page 2



applied retroactively.  A recent Texas case applied the
Huson test. First Bank of Deer Park v. Deer Park Indeo.
School Dist., 770 S.W.Zd 849 (Tex. APP. - Texarkana 1989,
writ denied). First, to be applied prospectively only, a
decision must establish a new principle of law, either by
overruling a past decision on which there may have been
reliance or by deciding an issue of first impression.
w,     suora, at 106. Attorney General Opinion JM-1161
overruled several attorney general opinions.
General Opinions MW-303 (1981); H-948 (1977). TheAt%~
held:
        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 nomina-
        tion or until the Governor appoints another
        individual.
Attorney General Opinion H-948, at 4.      The senate, the
governor, and various appointees have relied on that opinion
for the proposition that an appointee could continue to
serve as a de Sure officer even though the senate failed
to take any action on his appointment in the session
immediately following his appointment. Therefore, the first
criterion for prospective application has been met.
     The second factor to be considered is whether retro-
active application would further or retard the operation of
the rule. Buson. suora, at 106-07. We do not think that
retroactive application would further the purpose of article
IV, section 12, of the Texas Constitution, which is to
ensure that both the senate and the governor consider the
qualifications of persons entrusted with carrying        out
governmental functions. To apply Attorney General Opinion
JM-1161 retroactively would leave numerous state offices
vacant for reasons not related to the qualifications of the
persons who had been appointed to those offices.    Prospec-
tive application, on the other hand, will restore the
constitutional balance of power by allowing the senate to
consider the qualifications of those appointees.
     The third factor    to consider is whether retroactive
application would work   an injustice or hardship. Huson    at
107. If the decision     we affirm today were to beplied
retroactively, dozens,   perhaps hundreds, of offices would be

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Honorable WilliaR P, Bobby .;..(JX,lU9)
Honorable Bob Bullock      :
Honorable Chet Edwards
Page 3



vacant, and the validity of many decisions would be called
into question. Conceivably, costly litigation would ensue.
Thus, in our view, retroactive application of Attorney
General Opinion JM-1161 would produce substantial      in-
equitable results.
     Accordingly, we hold that all recess appointees of the
governor who were not yet confirmed but were properly
holding office on May 1, 1990, under the          principles
enunciated in Attorney General Opinions MW-303 and H-948,
were de iure officers as of that date.    Those who had not
been properly confirmed as of that date may be confirmed in
the special session that began on May 2, 1990. If a recess
appointee who has not yet been confirmed is not confirmed
in this session, the office will become vacant upon the
adjournment of the senate. Inaction by the senate will be
tantamount to rejection.
     In light of our conclusion that Attorney General
Opinion JM-1161 is to be applied prospectively only, it is
not necessary to address Mr. Bullock's questions.
                       SUMMARY
           Attorney General Opinion JM-1161 (1990) is
        affirmed.   However, it should be applied
        prospectively only. Recess appointees of the
        governor who were not yet confirmed but were
        properly holding office on Way 1, 1990, under
        the principles in Attorney General Opinions
        WW-303 and H-948, were de iure officers as of
        that date. Those who had not been properly
        confirmed as of that date may be confirmed in
        the special session that began on May 2,
        1990. If a recess appointee who has not yet
        been confirmed is not confirmed in this
        session, the office will become vacant upon
        the adjournment of the senate.



                                 J /btdbc
                                   Ve   truly yo r ,

                                       &
                                   JIM     MATTOX
                                   Attorney General of Texas
MARY KELLER
First Assistant Attorney General



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Honorable William P. Hobby     (JM-1179)
Honorable Bob Bullock
Honorable Chet Edwards
Page 4



JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General
RENEA HICKS
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Rick Gilpin and
Sarah Woelk
Assistant Attorneys General




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