        THE    ATTORSEY    GENIEEUL
                  QF TEXAS




                    April 10,   1963

Honorable John Connally                Opinion No. C- 57
Governor of Texas
Austin, Texas                          Re:   Under the facts stated,
                                             whether the Governor
                                             is precluded from ap-
                                             pointing a Criminal
                                             District Attorney of
Dear Governor Connally:                      Polk County.
          You have requested an opinion from this Department
concerning the office of Criminal District Attorney of Polk
County and ask if, under the facts stated below, you are pre-
cluded from making an appointment to such office or if a
vacancy exists at the present time which would authorize you
to make such appointment.
          The facts concerning this request are as follows:
          Cn June 19, 1962, Governor Daniel appointed
     Samuel W. Freas as Criminal District Attorney of
     Polk County to fill the unexpired term of Claude
     Ray Bailey, resigned. Mr. Freas took the oath of
     office and received his commission which expired
     December 31, 1962.
          At the general election of November, 1962,
     Sidney H. Adams was elected Criminal District At-
     torney of Polk County. On December 1, 1962,  Mr.
     Adams resigned as Criminal District Attorney with-
     out having served a day in that office.
          On December 27, 1962, Governor Daniel appointed
     Samuel W. Freas as Criminal District Attorney of Polk
     County to succeed Sidney H. Adams, resigned. Mr. Freas
     took the oath of office and received his commission.



                          -280-
Honorable John Connally, page 2 (C-   57   )


          On January 8, 1963, while still in office,
     Governor Daniel submitted the name of Mr. Freas
     to the Senate for confirmation to fill the unex-
     pired term of Claude Ray Bailey as Criminal District
     Attorney of Polk County. However, there was no sub-     :
     mission of the name of Mr. Freas to the Senate for
     confirmation to fill the unexpired term of Mr. Adams.
          The Texas Constitution, Section 12, Article IV, ex-
pressly provides for the manner of filling vacancies In State
or district offices. It states as follows:
           "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 appointment, 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 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. Appointments to
      vacancies in offices elective by the people shall
      only continue until the first general election there-
      after."
          The Constitution, therefore, clearly requires that
every appointment by the Governor to fill a vacancy in a State
or district office be made with the advise and consent of two-
thirds of the Senate. See Denison v. State, 61 S.W.2d 1017,
(Tex.Civ.App. 1933 error ref.) 122 T       459, 61 S.W.2d 1022
and 34 Tex.Jur. 374-381, Public'Officezt; Sections 32-34. We
also observe that in this instance, Governor Daniel's appoint-
ment of Mr. Freas to fill Mr. Adams 1 unexpired term was made
during a recess of the Senate, and that as such the nomination
is required to be made during the first ten days of the Senate
session by Section 12, Article IV.




                               i
                           -28.c
Honorable John Connally, page   3 (C-57)

          It is our opinion, therefore, that the failure to
submit Mr. Freas for Senate confirmation to fill the unexpired
term of the elected Sidney H. Adams, resigned, creates a
vacancy at the present time within the meaning of Section 12
of Article IV. The fact that Mr. Freasl name is presently
pending confirmation to fill the unexpired term of Claude
Ray Bailey would not preclude such an appointment of your
choice.

                     SUMMARY
          An appointment to fill a vacancy in a State
     or district office requires the confirmation of two-
     thirds of the Senate. In the absence of such nomination
     to the Senate, a vacancy exists which authorizes the
     Governor to make an appointment of his choice to that
     office and submit such appointee for confirmation by
     the Senate.
                                  Sincerely,
                                  WAGGONER CARR
                                  Attorney General



                                  Assistant
PP:mkh
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
John Reeves
J. S. Bracewell
Edward Moffett
W. 0. Shultz
APPROVED FOR THE ATTORNEY GENERAL
BY:Albert Jones




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