If a Texas recess appointee quits and is replaced before the Senate meets, does the old name still go to the Senate?

Plain-English summary

In Texas, the governor can fill many state offices by appointment, and the Senate confirms (or rejects) those appointments. When the Senate is not in session, the governor can still appoint someone, a "recess appointment," but the appointment eventually has to go to the Senate. The question here was a practical wrinkle: what happens when a recess appointee resigns and the governor picks a replacement before the Senate ever gets a chance to vote on the first one? Does the governor still have to send the first person's name to the Senate, and does anything the first appointee did in office need to be "validated" later?

The Attorney General concluded the governor does not have to submit the first appointee's name. The relevant part of the Constitution (article IV, section 12) tells the governor to nominate "the appointee, or some other person to fill the vacancy." That "or some other person" language shows the governor is not locked into resubmitting a prior appointee. As the opinion put it, if the governor could nominate someone who had never held the position at all, she could obviously nominate her second appointee instead of her first. Using the example given in the request, a May 1992 recess appointment to Commissioner of Health and Human Services, where the appointee resigned a month later and a successor was named right away, the opinion found nothing requiring the first name to go to the Senate.

The opinion also addressed whether the first appointee's official acts needed later legislative blessing. They did not. The first appointee was the lawful (de jure) office holder until the second appointee was appointed and qualified. Because the legislature never met during the first appointee's short time in office, there was nothing for it to act on, and a later Senate "rejection" of a person who was no longer in the office would carry no constitutional effect. The opinion distinguished an earlier opinion (JM-1161) that had involved an attempted oral resignation during a session; that resignation was ineffective because it was not in writing as the Election Code requires. Here, assuming a proper written resignation, the second appointee lawfully held the office from the date he was appointed.

Currency note

This opinion was issued in 1993. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. Article IV, section 12 of the Texas Constitution has been amended since 1993, and the agency named in the example (the Commissioner of Health and Human Services and the structure of the state's health and human services agencies) has been reorganized, so confirm current law before relying on anything described here.

Background and statutory framework

Article IV, section 12 of the Texas Constitution governs how the governor fills vacancies in state and district offices and how the Senate confirms appointees. As relevant here, an appointment made during a Senate session requires the advice and consent of two-thirds of the Senate present; for a recess appointment, the governor must, during the first ten days of the Senate's next session, "nominate the appointee, or some other person to fill the vacancy," and if the governor fails to submit any name, the Senate "may consider the recess appointee as if the Governor had nominated the appointee." Subsection (d) addresses a special session in which the Senate takes no final action (allowing the governor to appoint another person, and letting a qualified appointee continue in office until rejected or replaced); subsection (e) provides that if the Senate at a regular session takes no final action, the appointee is considered rejected when the session ends; and subsection (f) provides that a rejected person may not be reappointed to that vacancy during its term.

No duty to submit the first appointee's name. Senator Barrientos asked about recess appointees replaced before the Senate could act, giving the example of a May 1992 recess appointment to Commissioner of Health and Human Services where the appointee resigned the following month and a successor was immediately appointed. The opinion concluded that nothing in article IV, section 12 or any other provision requires the governor to submit the first appointee's name to the Senate. The constitutional direction to "nominate the appointee, or some other person to fill the vacancy" contemplates that the governor has no duty to submit a previous appointee's name; if the governor may nominate a person who never held the position rather than a prior appointee, she may likewise nominate her second appointee instead of her first.

The first appointee's acts need no validation. The opinion turned to AG Opinion JM-1161 (1990), which had considered a first appointee's attempt to resign during a special legislative session; that opinion held the attempted resignation ineffective because it was not in writing, as Election Code section 201.001(a) requires. Presuming the first appointee here submitted a written resignation, the opinion concluded the second appointee became the de jure office holder as of the date of his appointment. The first appointee was the de jure office holder until the second appointee was appointed to and qualified for the position. Because the legislature did not convene at any time during the first appointee's tenure, no legislative action regarding that appointee was necessary or proper, and because the first appointee held the office de jure during his brief tenure, a later "rejection" of that brief appointment would, under the constitution, have no effect.

Common questions

If a Texas recess appointee resigns before the Senate meets, must the governor still send that person's name to the Senate?
No. The opinion concluded that article IV, section 12 does not require the governor to submit the first appointee's name; the constitution lets the governor nominate "the appointee, or some other person."

Can the governor just nominate the replacement instead?
Yes. The opinion reasoned that since the governor could nominate someone who never held the position, she may nominate the second appointee rather than the first.

Do the first appointee's official actions have to be validated by the legislature later?
No. The opinion concluded the first appointee was the lawful (de jure) office holder during his brief tenure, so his acts need no validation, especially since the legislature never met during that time.

What if the Senate later tries to "reject" the first appointee?
The opinion concluded such a rejection would have no constitutional effect, because the person was the de jure office holder during his tenure and is no longer in the office.

Citations

• Tex. Const. art. IV, § 12 (filling vacancies; Senate advice and consent; recess appointments and resubmission; consequences of Senate inaction; reappointment bar)
• Election Code § 201.001(a) (resignation in writing)
• Attorney General Opinion JM-1161 (1990)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0203
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1993/dm0203.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain. The linked PDF is authoritative.

Office of the Attorney General
State of Texas

DAN MORALES
ATTORNEY GENERAL

February 23, 1993

Honorable Gonzalo Barrientos
Chairman
Committee on Nominations
Texas State Senate
P.O. Box 12068
Austin, Texas 78711

Opinion No. DM-203

Re: Status of "recess gubernatorial appointees who are replaced by other nominees before the senate has had the opportunity to confirm or reject them in a regular or special session" (RQ-490)

Dear Senator Barrientos:

You have requested our opinion as to the status of "recess gubernatorial [appointees] who are replaced by other nominees before the Senate has [had] the opportunity to confirm or reject them in a regular or special session." Article IV, section 12 of the Texas Constitution provides, in part:

(a) 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.

(b) An appointment of the Governor made during a session of the Senate shall be with the advice and consent of two-thirds of the Senate present.

(c) In accordance with this section, the Senate may give its advice and consent on an appointment of the Governor made during a recess of the Senate. To be confirmed, the appointment must be with the advice and consent of two-thirds of the Senate present. If an appointment of the Governor is made during the recess of the Senate, the Governor shall nominate the appointee, or some other person to fill the vacancy, to the Senate during the first ten days of its next session following the appointment. If the Senate does not confirm a person under this subsection, the Governor shall nominate in accordance with this section the recess appointee or another person to fill the vacancy during the first ten days of each subsequent session of the Senate until a confirmation occurs. If the Governor does not nominate a person to the Senate during the first ten days of a session of the Senate as required by this subsection, the Senate at that session may consider the recess appointee as if the Governor had nominated the appointee.

(d) If the Senate, at any special session, does not take final action to confirm or reject a previously unconfirmed recess appointee or another person nominated to fill the vacancy for which the appointment was made:

(1) the Governor after the session may appoint another person to fill the vacancy, and

(2) the appointee, if otherwise qualified and if not removed as provided by law, is entitled to continue in office until the earlier of the following occurs:

(A) the Senate rejects the appointee at a subsequent session; or

(B) the Governor appoints another person to fill the vacancy under Subdivision (1) of this subsection.

(e) If the Senate, at a regular session, does not take final action to confirm or reject a previously unconfirmed recess appointee or another person nominated to fill the vacancy for which the appointment was made, the appointee or other person, as appropriate, is considered to be rejected by the Senate when the Senate session ends.

(f) If an appointee is rejected, the office shall immediately become vacant, and the Governor shall, without delay, make further nominations, until a confirmation takes place. If a person has been rejected by the Senate to fill a vacancy, the Governor may not appoint the person to fill the vacancy or, during the term of the vacancy for which the person was rejected, to fill another vacancy in the same office or on the same board, commission, or other body. [Emphasis added.]

When the Governor makes a recess appointment, subsection (c) requires that she submit to the senate, during the first ten days of the next session following the appointment, either the name of the appointee "or some other person." Furthermore, if the governor fails to submit any name, the senate "may consider the recess appointee as if the Governor had nominated the appointee." Subsections (d) and (e) describe the consequences of senate inaction in, respectively, a regular session and a special session.

As an example, you indicate that, in May 1992, the governor appointed a particular individual to be Commissioner of Health and Human Services. That appointee resigned the following month and another person was immediately appointed to fill the vacancy. In our opinion, nothing in article IV, section 12, or any other provision would require the governor to submit to the senate the name of the first appointee. In addition, the constitutional language, by directing the governor to "nominate the appointee, or some other person to fill the vacancy," contemplates that the governor has no duty to submit the name of a previous appointee. If, under subsection (c), she may nominate a person who has never previously held the position rather than a prior appointee, it seems obvious that she may nominate her second appointee rather than her first.

Attorney General Opinion JM-1161 (1990) is not to the contrary. In that opinion, the attorney general considered an attempt by a first appointee to resign his office during a special legislative session. The opinion declared that, because the attempted resignation was not in writing, it did not effect a valid surrender of the office under the terms of subsection 201.001(a) of the Election Code. In the situation you pose, we will presume that the first appointee submitted a written resignation. Under those circumstances, the second appointee became the de jure office holder as of the date of his appointment.

Attorney General Opinion JM-1161 is instructive in determining whether the acts of the first appointee must be subsequently "validated" by the legislature. Under the terms of article IV, section 12, the first appointee was the de jure office holder until the second appointee was appointed to and qualified for the position. Since the legislature did not convene at any time during the first appointee's tenure, no legislative action regarding this appointee was either necessary or proper. Since the first appointee held the office de jure during his brief tenure, a subsequent "rejection" of that brief appointment would, under the constitution, have no effect.

SUMMARY

When the governor appoints an individual to a position while the legislature is in recess, that person resigns the position before the legislature next convenes, and a second appointee is named to the position, there is no requirement that the name of the first appointee be submitted to the legislature. Acts of the first appointee need not be validated by the legislature for any period in which that person held the position de jure.

DAN MORALES
Attorney General of Texas

WILL PRYOR
First Assistant Attorney General

MARY KELLER
Deputy Assistant Attorney General

RENEA HICKS
Special Assistant Attorney General

MADELEINE B. JOHNSON
Chair, Opinion Committee

Prepared by Rick Gilpin
Assistant Attorney General