The opinion
AUWTIN 11. -rE%As
PRICE DANIEL
XrrORNEY GF.NERAL
July 30, 1949
Hon. ‘Robert S. Calvert
Comptroller of Public Accounts
Austin, Texas
Oplnlon No. V-868
Re: Status of office and salary
or Hon. E. V. Spence aa mem-
ber of the Board of Water
Engineers
Bear Sir:
The request for opinion Is stated in your letter
a8 follows:
“Under the facts. stated below, please
give me your opinion as to whether E. V.
Spence is still a member of the Board of
Water Engineers and as such is entitled to
the salary Incident to the position until
such time as he qualifies as Interstate
Compact Commlssloner, or until his suc-
cessor on the Board of Water Engfneers fs
appointed.
“He waa orlglnally appolnteU to the
Board of Water Engineers as an lnterlm
appointee to fill the vacancy which oc-
curred upon the death of Mr. A. Ii. Bunlap,
Thls appointment was made by the Honorable
Coke Stevenson and waa duly and regularly
confirmed ,by the Senate. He qualified in
.due course~and at the expiration of the in-.
terlm term was reappointed to .the :Board by
Honorable Beauford Jester and thereafter
qualified on November 6, 1947, by taking
the stPtutory oath and making the requfred
bond. Als name was submitted to the 51st
Legislature for aonflrmatfon. The Senate
of such Legislature never acted on thls
appointment. and ‘his name was wlthdrawn by
Governor Jester on June ~23, 1949, wlth the
.,,
Hon. Robert.S,.!%lvert: +?a&?-2 -Vi868
consent ~of the Senate. Governor Jester
did not submit another name for conflrm-
ation,has not requested his resignation
and.haa not appointed anyone else to the
Boand of Water Engineers:.
"By H.B.594, 51st Legislature, the
offfce of.Interstate Compact Commlsslon
for the Canadian, Red and Sablne Rivers
was created and appropriated the funds
necessary to'paythe salaries and carry
out the duties lncldental to such office.
This appropriation does not become ef-
,fectlve until the biennium beginning
September 1, 1949, Governor Jester has
appointed Mr. Spence Interstate Compact
Commissioner, and he was confirmed by the
Sena$e on June 23, 1949. He has not qual-
ified for such office by taking the oath
required by said bill."
In addition to -the fact5 stated In your letter,
we have ascertained that the appoint&e*5 name for the
Board position never came out of committee and that no
vote or other official action was ever taken by the
Senate one the appointment other than to consent to the
withdrawal.
The answer to your.queatlon 15 dependent upon
the solution of two separate problems. First, it 15
necessary to determine the effict of the ~Governor15 with-
L dratial, the Senate consenting, of the appointment to the
Board position upon such appointee's right to contfnut
a5 a member of the Board of Water Ennglneers. Second,
if this has no effect upon the right to mambershlp,
then 1s his right to the office in any way affected
by his appointinent and Senate confirmatfon to the Of-
fice of Interstate Compact Commissioner? The question
of the right to salary as a member of the Board ie de-
pendent tipon the right to the office.
The solution to the problem raised by the
Governor's withdrawal of his appointee's name from the
Senate with its consent is ln part dependent upon the
following statutory and constitutional provisions:
He& Robert S. Calve& - Page 3 -V-868
Article 7478, Vernon@8 Civil Statutes8
“Said Board (Board of Water E&lneers)
shall be cbnposed of three members; OM 81
whoa shall be appointed from eaah of the re-
spectlve water divisions described in Artf-
cle 7475. The members of such Board ahall
be appofnted by the Governor, by and with
the advice and consent of the Serrpte, and
shall eaoh held office fol' a term of six
yeprsp and until his aucoessor is appeinted
and qualified,"
Article IV9 Section 12, Constftutfen of Texas8
"All vacanales in,State or district
offices, except members (Bf the LeglslatuFc,
shall be filled unless otherwise provided
by law9 by appointmad gf the Governor9 which
appaintment, lf.8nade .du@ing its session, shall
be ylth the advice and conrrent'af two-thirds
of the Senate presen& If made durfng the
reces~s of the Sena%+?i,the said appointee, or
ata8m?other person to fill suah vacancy, shall
be ncanfnated to %he SMate during the first
ten daya of fts sebafon. If rejected, aafd
office rhall immediately be&me vacant, and
the Governor shall, tithout delay, make further
nomi~tfons, until a 6ht%matfon takes place.
But should there be,ne confirmation durfng the
session of the Senate, the Governor dhall not
thereafter appoint any person to ffll much va-
cancy who has been rejectied by the Senate; but
may appofnt some other person Co fill the
vacancy untfl the next sesrioh of the Semate
or until the regular elsatfbn to aafd office,
should it seoner occur. Appointments to va-
cancies in sfflaea elective by the people
shall only continue uaPtf1 the first general
election thereafkr."
Artlale XVI, Seotfon 17, Censtitutlon of Texaos
'All sfffcers wfthln this gtate shall
contfnue ,to perfezrln the &utfes of their offices
until thefr successor88 shall be duly quallffed."
Hon. Robert S. Calvert. - Page 4 - V-868
The problem Is essentially this. When a
recess appolnfment 1s made and submitted to the Senate,
as required by Article IV, Sec.12, but the name 1s
withdrawn before the Senate afflrmatlvely confirms or
rejects the appolnte.e, does. that portion of Art. IV3
Set, 12, which provides tha,t lf~ such appointee Is
"regected, said offlce.,shall lmmedlately become va-
cant", apply so asp to bar theiappolntee of all right
to the office from the time his name 1s withdrawn '
and prevent his holding over as required by Art.XVI,
Sec.17, untfl another. appointment is made?
,We find no authorlty directly ln polnt on
this question: Insofar as we have been able to as'
certain, the question Is one of first Impression in
Texas. Utih respect to the situation where there has
been an affirmative rejection by the Senate, we find
only one case. Even this case leaves some doubt as
to the effect, If any, which the holdover provisions
of Art. XVI, Sec. 17, hale in the case of an affirmative
rejection. Denlson v. State, 61 S.W.2d 1017 (Tex.Clv.
App. 1933, error ref.; 122 Teex; ~4-59, 61 S;W.2d 1022).
There are, however, two prior opinions by this
office which have construed the effect of Art.- IV, Sec.12
upon Art. XVI, Sec.17, where the Senate has affirmatively
rejected anexecutive appointment. These~oplnlona reach
opposlte concluslons. See'Oplnlon O-3343, ~approved
March 28, 1941, and CopferenOe Oplnlon 1809, wrltten by
the then Attorney General, Hon. B. F. Looney, under date
of August 18, lg.j7.,
We quotes from Conference Opinlon 1809 as follows:
"I am in receipt of your communlcatlon
of the 17th Inst., on behalf of Senate Com-
mlttee on public debts, claims and accounts
of which you are Chalrman, in which you state
that durlngthe regular session of the Thlrty-
flfth Legfslature the Senate refused to con-
firm C. W. Woodman as Labor Commlssloner;
that during the first called session the Gover-
nor submitted to the.Senate ~the name of Frank
Swor for conflrmatl,on as Labor Commlssloner,
and he was conflrmed by the Senate. You fur-
.+;fEYW,, state that Mr. Swor has failed to
talce the oath of..offlce as Labor Commissioner,
Hon, Robert S, Calvert - Page 5.- V-868
and, In fact, has failed altogether
to accept and guzillfy to said office,
and that C. W, Woodman Is continuing'
tb dlicharge the duties of the office,
and Is drawing the salary as' Labor Com-
mlsslo~er.
IYou cob1 attention to the provf-
slons of Section 12, Article 4 of the
Constitution. a D
"After maklng this statement you
propound the ,following quastlon:~
.. r
"Does~thia 6jrticie of the Conetl-
tution, under the statement 'of fasts set
out herein, authorize the said Woodman
to continue to fi3;3. the office 02 Labor-'..
Comm&ssloner and te draw his salary
therefor? .
"If the artlhle of the Consti$ution
-just quoted was the only provision in
theXonst$tutlcip relating to the subject,
your question siiould.be answered In the
negat~lve. In this connectlon, however,
I'.be& to.call attention to Section 17 of
Artfcle 16 of the Constitution, as fel-
JOWL?'.
"#All offlcers within thls state
shall continue to perform the dutles
.of thelti'offlcea -until their successors
.
shall be duly qualif1ed.Q
“Construfng these different pro-
,vlslons of the Constitution together,
and they must beg so construed.as to give
meanfng to each, I am of the opinion
that.%. Woodman, under the facts stated,
will continue to discharge the duties of
the oftfce until hfs successor shall be
appointedand qualified,
"The term 'vacancy@ Is used tiffh
varying meanings. There may be a con-
structive vacancy and yet the office may
.
Hon. Robert S. Calvert - Page 6 - v-868
be physically occupied. You will note
the language of Stictlon 17 just quoted.
It does not say that the incumbents after
his term expires shall hold the office,
but rshall.continue to perform the duties
of their offices until their successors
shall be duly quallfled. e e e-i
"I beg, therefore, to answer your
first question just quoted In the afflrm-
atlve; that Is to say, until the suc-
cessor of Mr. Woodman qualifies he Is by
virtue of the Constltutfon,,authorlzed
to discharge the duties of the office and
to collect the salary therefor.
"If the Governor, Instead of noml-
natlng Woodman to succeed himself, had
nomfnated Brown, and if on the re,jectlon
of Brown by the Senate, the Governor had
nominated Jones9 and If Jones after be-
ing conffrmed had refused to accept the
office and qualify, as Swor has done, no
one would entertain a doubt but Mr. Wood-
man could, under the circumstances, con-
tinue to discharge the duties of the of-
flee, pending the.appointqent and qualffl-
cation of his succemoi-.“.
We quote from Oplnfon O-3343 as follows:
- "We beg to reply to your letter of
March 17, 1941, requestlng our opinion as
to whether your tenurk~ of the office of
State Adftor and'Efflclency, Expert ended
when the:Senate regected your appointment,
or whether it ls'your duty to hold the of-
fice 'de facto! until another offldlal
ia appoirited and has ,qualfffed. Pertinent
facts are as followa Poti prior term In
the office ended on September 13, 1940, at .~
which time you were appointed by the Gover-
nor to succeed yourself, after which you
seasonably filed your oath and bond; on
January 22, 1941, the Governop aubmltted
your name to the Senate for confirmation;
and on March 6,'19.41, such ConffrnrPtlon was
regected, o o o
Ea. Robert S. Calvert - Page 7 -v-O68
“As already noted, Article 16,
SeCtIan 17 is a general prevision, while
Section 12 of Article 4 Is a apeclal ant
dealing with this identical problem, To
hold that Section 17 Is effective here,
in our eplnfon, would be to nulllfy a
part of sald Section 12 of AP$fcle 4, and
thus a genePa prevision would be held to
control the ape&al one, which ia con-
Wary to the well establl6hed rmle sf cen-
stmatf0n. On the other hand;thePe fs
ample room fer Article 16, Section 17;
to opePate without applying ft to this
klnd of situation. Dhder the fnterpre-
tatien &l&h ice have givea both pravI-
alens survive and fun&ion.
“It Is our considered oplnlon that
your dutles and tenure of office ended
en March 6, 19k1, when yeur appointment
was rejacted by the Senater“
It is evident that the point of conflict be-
tween these opinions Is whether Art. Iv, Sec.12 and
Art. XVT, Sec.17 should be construed together so as to
permit a ngected appointee to hold oveP* This precise
question was not before the court in 0
supra s The court mentioned both con
vfsfone 0 But ft mentioned them only in &nneotlon with
the obntentfon by~the.regeatod appofnfee, M&en, that
Art. IV9 Sec.12 had no application to hfs sftuatfesr
_ (In effeet.that the Senate was not.requfred to aOhffPm
his appointmont) aface under Art, XVI See,13 there was
a@ vaaaney In efffce, it befog the duty o$ the ileum-
~$n&s~~hnaon, to @old over after the expiration
The court found that in Texas the expi-
ration of a’tera of office creates a vacancy, which
the Governor may ill1 by appointment under Art. IV,
Sec.12. Howeve~~ the court dld say that Art. IV,
Sec.12 “denies to a nomfneep whose conffraption has
been rejected by the Senate, any right whatever to
occupy the office or to dfschaPg,e, after such rejection,
any of the duties thereof.” If the ceurt Intended by
this to say that.a rcgected appolntee may net hold
over under Art. XVI, Seco 17 until a conffrmatlen 1s had,
then ft is obvious that a hiatus %n office may result.
Had Denlson Instead of Johnson been the Incumbent and had
he been appointed to mcceed hlrselfi could he have held
.
Hon. Robert S. Calvert .- Page 8 -v-868
over under Art. XVI, Sec.171 Since .this question
and because th$ matter of who held over in the of-
fice, if anyone, wa8 not before the court, the case
1s not authority except perhaps in the base of an
affirmative rejection,
On the ouentlon of whether’or not the end
of a term of office creates .a vacancy in office,
Texas appears to Abe iq; the minorftga : Peopza;;. zhrls-
Man, 123 P,2d 368~-372 (Wyo. Sup.1942); De *
State :9 suprap aid ca’ecs ,thereln cited. UiGFE-ru1e
‘ITTE Iwed by the ma.loI’fty of states. the Incumbent holda
over after-his terii, either by vlr&ae of copstltutfon-
al or statutory prov.lslons, and unleaa.he realgns, dies
or abandons the offlce,~remain&;~ 1-n the office until the
new appointee has been confirmad by the Senate and un-
til he qualj.fles. Under this rule a recesa~ Appointee
would not be entitled ‘to the office by.vlrtue oft ap-
pointment alone but would .be .requlrtd:-to wait until
the next meeting of the ~Stnttt and confirmation by
that body before&he could,enter the off&t, the lncy-
bent fn the meantime hol@ihg over. ‘However, If the
Oncumbtnt rtylgns, dies; or abandons the office, a
vakancy occura In the sense that the, new appointee may
enter the office. People v. Christian, supra. Slnct~
in Texas the end of a term of office createa. a va~cancy.
in the sense that a new appointee can enter the office;
a new appointment may be made and such appolntet~le en-
titled to the offlce, The r&al basis of the,dfstlnc-
tlon between the majority viewand the tiew in Texas Is
with respect to the tl#e when atid the c.lrcumetancea
under which the new appoffitte may undertake the offlce.
In adoptlng the so-called mfnorfty view, we
doubt that the Texas courta intended to thereby’create
a situation under which a.hlatus in office could OP
right occur. As stated in the decisions of the courts
adoptfng elther view, their purpose.18 to prevent a
hiatus In offfce. This is done in Texas by permlttfng
the new appointee to at once take offlce even though
the appointment be, Incomplete, and In other states
by lnsurlng holding over by,the Incumbent until the
new appointment is In fact comp&*tt. It is obvious
that no hiatus could occur under the majority view.
It la equally obvious that In Texas unless ,the new
appointee be permitted to hold over until hia successor
qualifies, a hiatus Will result. To apply the holding
of Opinion O-3343 or construe the holding in Denlson
v. State as applicable to the ,factu here, woum
Hon. Robert S. Calvtrt - Page 9 - V-868
to create rather than prevent hiatus In office, and
would be geing further than we believe the Texas
courts Intended to go in adopting thelr minority view.
In addltlon, Art. XVI, Sec.17 Is denied any appllca-
tlon. Opinion O-3343 and the court!s oplnlon in
Den.lson v9 State, supra, are predicated upon the express
‘language of Art. IV0 Sec.12, relating to rejeotlons.
Clearly then, unless there Is an express rejection,
Art, IV, Sec. 12 must be construed together with Art.
XVI, Sec,li' as Indicated by Conference Oplnlon 1809.
Where, as here, the Senate takes no action on the
appointment, the appointee holds over pursuant to
Art. XVI, Sec,l7 until he resigns, dies, abandons the
office, or until his successor Is appointed.
Our answer to the problem raised by the ap-
pointment and confirmation of E, V. Spence to the office
of Interstate Compact Commissioner Is dependent upon wht-
ther @r not he now oacupits such office,
Membership on the Board of Water Engineers
and holding the office of Interstate Compact Comml'ssloner,
both offices of emolument, would clearly be in violation
of Art. XVI, Sec,~40 Of the Constitution &I Texas. When
the same person occupies two suah.offlces, his acceptance
and quallflcatlon for the second office Ipso facto and as
a matter of law vacatea the first offlct, But until1
there 1s an acceptance and qualification for the second
offlce he does not occunv It and there 1s no abandonment
or vacation of the first office.
There appearsto be some conflict In Texas
whether acceptance and entering the duties of the second
office, without formal quallflcatlon by taklng the oath
or making the bond, ~111 vacatwthe first office, or
whether there must be ln addition a formal qualification
to the second office before the first Is vacated. Com-
pare Odtm v. Slnton Ind, School District supra with
Martin v.~ Grandvlew Ind, School DlstrfcE [ supra 1 and
Han, Robert S. Calvert - ‘Page 10 -V-868
Keel v. Railroad Corn., 107 S.W.2d 439 (Tex.Clv.App.
1937. error ref. 1.. &evertheleas. we understand the
f&i heYe to bt’that E. V. Spence Is still serving
on the Board, haa not begun his duties as Commfssloner,
has not qualified as Commissioner by taking the oath,
and has otherwlse,made~no formal acceptance of the
office OS Interstatl.Compact~Commls~lone~; It seems
clear that he’ does not occupy the second office to
whlck he has beeh appointed and,conflrmed under clr-
cumstanoes which would tionatltute an Ipso facto vaca-
tion of his Board membership,
It is ou; opinion that E. V. Spence 1s still
a member of tht,#Board of Water Engfneers,by~vlrtue of
Article XVI, Sec.17 of t.ht Constitution and wJ1.J so
remain until his successoy Is appointed, and qu~ll.fles,
OF unbil hk accepts and qtialifiea for the office of
Interstate, Compaat Oaaimiesioner, Such being the cape,
he Is entitled to the balaiy lncl&ntai to his Board
membership,
Accord@g to House Bll,l 594, 51at L$?glslature,
the salary of the Interstate Compact Couimlsslont~ does
not commenoe. until September ‘1, ~1949. Even though. the
Act by virtue of Its’ emergency clause and passage by the
ntces.sary vote became effective upon Its pa~saage, we
doubt that the .&egislaturt Intended that the office be
occupied by the appolntet, or that he accept and qualify,
until the salary tb,,.hlch the office la entitled becomes
available
*
SUMMARY
A rectas appolntee,s requlrlng
Senate confirmation, who was appolnt-
ed to succeed hImself and whose name
ie withdrawn with the consent of the’.
Senate, continuea.to hold over In of-
fice under Artlole XVI, Sec.17, Con-
stitution of Tta$as, untll’hls auc-.
cessor is appolnted and qualifies.
Executive appointment and Senate
confirmation of the same person for
a second office of emolumtn~t dots not
vacate the flrst offige until there
has been an acceptance and quallflca-
tion for the second office. .Odem v.
Hon. Robert S. Calvert - Page 11-V-868
Sinton Ind. School
1090 (C "
Rose Inz?ich%
. . 1004 (1935).
Yours very truly
ATTORNXYGENWALOF!?EXAS
BY Ii. D. Pruttt, Jr.
HDP:bt Asslstant