    OFFICE   OF THE ATTORNEY        GENERAL   OF TEXAS
                           AUSTIN




Honorable Tom 0. King
Cepitol Building
Auetin, Tezas
Dear Mr. King:




          We beg'to reply
requesting our opinion as
fiae of State Auditor and

pointed and has qua1
Your prior term in t
which time you
9ouraelf, afte
on January 22,
senate ror conri
tion was rejeote



     <e&&f&-;:                                   &tU aontinoe
     t0   ~ITOJ!IC he    aties Or their Off$es    until their



zib-zzy~
                      oted Section o.tthe Constitutionis a
                        When an incumbent
                                      offioer*sregularterm
                  ooemor does not immediatelyqnallry,unques-
                ve section applies in such way as to reqaire
the incumbent to aontinue the perfonnanaeof the datiea of th,
0rriOe until his suaeessor quallfiee. MoCee vs. Dickey, 18
S. w. 4C4; Vem vs. Featherston,69 5. W. 885; State vs. Jordan,
28 9. W. (2) 921.
                                                          _- -.
                                                                  612


Honorable Tom C. King, page 2


          But, we have anotherSeationin oar ConstIlmtIon
         __
apeoiticallgoovering the IdenticalprOblem at band. Article
4, Section 12, reads:
          *All vacanciesin State or dfstrictoffices,
     except mwabers 0r the Legislature, shall be tilled
     unless otherwise providedby law, by appoIntwe&
     of the Governor, which appointwent, if ade during
     its session, shall byewith the adrieeend consent
     0r two-thirds Or the.Senatepresent.   It m3de dur-
     ing the reoess of the Senate,the said appointee,
     or some other person to fill sneh vaczmoy,shell
     be nominated to the Senate durIagthe tirstten days
     or its session. Ii rejeoted,said orfleeshall
     Mediately become vacant,,  end the Governorshall,
     wIthout delay, make rurthernowiaations,  u.atIl  a
     ooufirmationtakes place. hut shouldthere be ao
     con?iwation during the sessfouof the Seaate,the
     Governor shall not theretiterapgoiatany person'
     to flll suoh vaoaucywho has beea rejectedby the
     Senate;.butmay appoint mme other personto flll
     the vacciIloy.uMIlthe next session02 the Senate
     or until the regular electionto said offlce,should
     it sooner oc.our.Appointmentsto rac.ancIes  in Or-
     floes eleetive by the peopleshallonly continue
     until the timt generalelectiontlmreafter.w
          Sinae you were appointedd&mg the recessor the
Se&&, nominated to the Senate at its pmsent sessionand by
that body rejeated. YOU have come sauamly into that Dart of
said section-wherein-It vrovidest&it gIireieeted.s&d or-
                                       While a diii lerent
                                                     _~~~
                                      7s. State, 61s. W.
                                       Ian-age In the opinion
In that case, written by Mr. Justice2aqh, Is peztinent:
          "The language,-'Irrejeoted,se&i ofriee&all
     immediatelybecome vacant,and the goremorslnll,
     without delay, make furtherncnIaatIcse, aatila
     confirmationtakes plaoe,'oleerlyaad by neoe-ssary
     Implioationdenies to a nosi.nee,rfPse coafinatian
     has been rejected by the Senate,awright rlbataer
     to occupy the orriceor to dieeh3r9, after sash
     Pejeotion,any or the duties themuft
Honorable Tom C. King, page 3


          It may be suggested the-tthe provisionsthat *said ot-
flee shall Immediatelybecome vaaant" means that such office
shall become vacant not physically;but vacant ierely for the
purpose of authori&g the appointmentor someone to flll the
plaoe. However* we thinh that ar ument is fully dissipatedby
the following uonsiderations: (17 Where a recess appointment
Is made, as was the case here, the Governor Is not reqairedto
nominate such recess appointee to the Senate. He is just as
free before rejection as he is arterward to submit the name or
someone else. The requirementmerely Is that vthe said appoint-
ment, or some other person to fill such vacancy, shall be
nominated to the Senate during the first ten days of its 8ession.v
So, a vacancy in the limited sense suggested existed~beforethe
rejection. Henoe,.ii the provision Wsaid'offioeshall immediate-
ly become oacant* means anything it is that the office becomes
vacant physically as well as legally. (2)'Tohold that such
en‘officerwould hold over - even after he has been rejected-
until a successor should be nominated, 8onrIWed and has quali-
fied, would be to open the way to a complete disregardor sec-
tion 12 of Artiole 4, State Constitution. For, If such an or-
ricer is not derinitelyNout* upon rejeotiou,no end logically
can be round for his service, if by change the Senate should
adjourn without the appointment,confirmationand qualiricaticn,
or a suocessor. Under that interpretation,ir at some rutare
time a governor should desire to do so, he oould maIntaInhis
appointee in office year erter year, notwithstandingrejecticn
t;szhe Senate, by simply railing to nominate or appoint someone
       (3) In providing that If there should be no oonfIrmation
durI;g the session governor "shell not thereafterappoint any
person to fill such vecanoy who has been rejectedby the Senate,"
the writers or Seotion 12 evidentlythought they had already
errectivelyeliminated the rejected appointee fron’oftice  ami
were roreclosing the only remaining possibilitythat a reject-
ed appointee or nominee be allowed to hold such office.
          As already noted, Artiole 10, Section 17, Is a general
provision, while Seotion 12 of Article 4 is a special one deal-
ing with this identical problem. To hold that said SectIon 17
Is erreotivehere, in our opinion would be to nullify a part or
said Section 12 of Article 4, and thus a general provisionwould
be held to control the special one, which Is contraryto the
well establishedrule of con&motion.     On the other hand, there
  Honorable Tom C. King, page 4


  is ample room for Artiale 16, Sectioa19, to operatewithout
  applying it to this kind of sitcatiau.  Under the Interpreta-
  tion which we have given both prorisio~  surviveand runction.
            It IS oar oonsidere& 0piaL0nthat your duties end
  tenure of office ended on Meroh 6, 194l,when ytinrappoint-
  ment wa8 rejeoted by the Semte.

_.I                                      Tory truly yours
                                                     CJFTJEXAS


                              _.-    m        Glenn R. Lewis
                                                    bssietent

 GRL:db
                                                                  I,   ‘:
