If a Texas AG opinion changes the rule on unconfirmed recess appointees staying in office, does that ruling undo appointments already made?

Texas AG Opinion JM-1179: Does a New Rule on Recess Appointees Reach Back in Time?

Plain-English summary

The Lieutenant Governor, the Comptroller, and the chairman of the Senate Nominations Committee each wrote in about Attorney General Opinion JM-1161 (1990), which had overruled earlier AG opinions the senate, the governor, and various appointees had relied on for the practice of letting an unconfirmed recess appointee keep exercising the duties of office if the senate simply failed to act on the nomination during the following session. The Comptroller asked several practical questions about the new opinion's effect, while the Lieutenant Governor and the Nominations Committee chairman asked the office to reconsider JM-1161 in light of the constitutional drafters' intent and long-standing senate practice.

The Attorney General declined to reconsider JM-1161's substance, finding no persuasive new argument, but concluded the opinion should apply prospectively only, from May 1, 1990 (the date JM-1161 was publicly released, even though dated April 20, 1990). Applying the three-factor test from Chevron Oil Co. v. Huson, as adopted by a Texas court of appeals in First Bank of Deer Park v. Deer Park Indep. School Dist., the opinion reasoned that JM-1161 announced a new legal principle overruling prior AG opinions (MW-303 and H-948) that the senate and governor had relied on, that retroactive application would not further article IV, section 12's purpose of ensuring both branches weigh in on appointees' qualifications (since it would empty offices for reasons unrelated to the appointees' fitness), and that retroactive application would produce substantial hardship by voiding potentially hundreds of offices and calling many past decisions into question. The opinion accordingly held that recess appointees properly holding office on May 1, 1990 remained lawful officers as of that date and could still be confirmed in the special session that began May 2, 1990, with inaction by the senate in that session treated as equivalent to rejection and the office becoming vacant on adjournment.

Currency note

This opinion was issued in 1990, applying its own recent opinion prospectively as of a specific 1990 date. 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 mentioned here.

Who this opinion affected (as of 1990)

Unconfirmed gubernatorial recess appointees serving as of May 1, 1990: The opinion meant these individuals remained lawful, de jure officers as of that date, and their offices were not retroactively voided by JM-1161's new rule, though they still needed senate confirmation in the special session that began May 2, 1990 to keep their offices afterward.

The Governor, Lieutenant Governor, and Texas Senate: The opinion resolved the practical fallout of JM-1161 by giving the senate a clear window, the special session beginning May 2, 1990, to act on pending recess appointments, with inaction treated as rejection and resulting in vacancy upon adjournment.

Common questions

Why didn't the Attorney General just change the underlying rule in JM-1161?
Because the Lieutenant Governor and the Nominations Committee chairman's arguments about constitutional drafting intent and senate practice did not persuade the office to reconsider; JM-1161 itself was reaffirmed, only its effective date and retroactivity were at issue in this opinion.

What made the office apply JM-1161 only going forward rather than retroactively?
Applying the three-part Chevron Oil Co. v. Huson test (adopted by Texas courts in First Bank of Deer Park), the opinion found JM-1161 announced a new principle overruling prior relied-upon AG opinions, that retroactive application wouldn't serve the constitutional purpose behind article IV, section 12's appointment-and-confirmation process, and that retroactivity would create substantial hardship by voiding potentially hundreds of offices and inviting costly litigation.

What happens to a recess appointee who isn't confirmed during the special session?
The opinion held that inaction by the senate in that session is treated the same as rejecting the nomination, and the office becomes vacant once the senate adjourns.

Background and statutory framework

Attorney General Opinion JM-1161 addressed whether an individual serving under a gubernatorial recess appointment, on whom the senate had taken no action during the legislative session immediately following the appointment, could continue exercising the duties of office. Prior AG opinions MW-303 (1981) and H-948 (1977) had held that such an appointee could continue serving as a de jure officer under article XVI, section 17 of the Texas Constitution until the senate rejected the nomination or the governor named someone else, and the senate, the governor, and various appointees had relied on that position. JM-1161 overruled those opinions, prompting the Lieutenant Governor, the Comptroller, and the Nominations Committee chairman to seek reconsideration or clarification.

The opinion applied the three factors from Chevron Oil Co. v. Huson, as followed by First Bank of Deer Park v. Deer Park Indep. School Dist., to decide whether JM-1161 should apply retroactively: (1) whether the decision establishes a new principle of law by overruling past precedent relied upon or deciding an issue of first impression, which the opinion found satisfied because JM-1161 overruled MW-303 and H-948, on which the senate, governor, and appointees had relied; (2) whether retroactive application would further or retard the purpose of the rule, here article IV, section 12 of the Texas Constitution, which ensures both the senate and the governor weigh in on the qualifications of appointees, a purpose the opinion found would not be served by retroactively vacating offices for reasons unrelated to the appointees' qualifications; and (3) whether retroactive application would work an injustice or hardship, which the opinion found would result from voiding dozens or hundreds of offices and casting doubt on many official decisions, potentially inviting costly litigation. Balancing these factors, the opinion held JM-1161 applies prospectively only, from May 1, 1990 (the date of its public release, despite being dated April 20, 1990), so that unconfirmed recess appointees properly holding office on that date remained lawful officers who could still be confirmed in the special legislative session beginning May 2, 1990, with senate inaction in that session equivalent to rejection and resulting in vacancy upon adjournment.

Citations

Statutes and constitutional provisions:

• Tex. Const. art. IV, § 12
• Tex. Const. art. XVI, § 17

Cases:

• Chevron Oil Co. v. Huson, 404 U.S. 97 (1971)
• First Bank of Deer Park v. Deer Park Indep. School Dist., 770 S.W.2d 849 (Tex. App.-Texarkana 1989, writ denied)

Prior Attorney General opinions cited: JM-1161 (1990), MW-303 (1981), H-948 (1977).

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-1179
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1990/jm1179.pdf

Original opinion text

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

May 24, 1990

Honorable William P. Hobby
Lieutenant Governor
P. O. Box 12068
Austin, Texas 78711

Honorable Bob Bullock
Comptroller of Public Accounts
L.B.J. State Office Building
Austin, Texas 78774

Honorable Chet Edwards
Chairman
Nominations Committee
Texas State Senate
P. O. Box 12068
Austin, Texas 78711

Opinion No. JM-1179

Re: Applicability of Attorney General Opinion JM-1161 (1990)

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, as of May 1, 1990,[1] 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 applied retroactively. A recent Texas case applied the Huson test. First Bank of Deer Park v. Deer Park Indep. School Dist., 770 S.W.2d 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. Huson, supra, at 106. Attorney General Opinion JM-1161 overruled several attorney general opinions. Attorney General Opinions MW-303 (1981); H-948 (1977). The latter 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 nomination 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 jure 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 retroactive application would further or retard the operation of the rule. Huson, supra, 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. Prospective 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 be applied retroactively, dozens, perhaps hundreds, of offices would be 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 inequitable 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 jure 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.

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

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 May 1, 1990, under the principles in Attorney General Opinions MW-303 and H-948, were de jure 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.

JIM MATTOX
Attorney General of Texas

MARY KELLER
First Assistant Attorney General

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