Untitled Texas Attorney General Opinion ( 1957 )

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THEATJYOFCNEY CA~NERAL
OFTEXAS
November 25, 195-i’
Honorable Robert S. Calvert Opinion No. WW-304
Comptroller of Public Accounts
State of Texas Re: The status of a member of
Capitol Station a Board or Commission whose
Austin, Texas appointive term has ex-
pired during the recess of
the Senate and whose suc-
cessor has not been ap-
pointed and submitted to
the Senate of the First
Session of the Legislature
convening after the explr-
Dear Mr. Calvert: atlon of the member's term.
You have requested an opinion of this office concern-
ing the status of a member of a Board or Commission whose ap-
pointlve term has expired during the recess of the Senate and
whose successor has not been appointed and submitted to the
Senate of the First Session of the Legislature convening after
the expiration of the member's term. In your request you have
presented the following question:
"Please advise me the present official status
of this Board Member, If any, and whether I am
authorized to issue warrant in payment of his
salary as of this date."
This request is based on the following facts which are
set forth in your letter:
"The official term of a duly qualified Board
Member (a State Agency) expired after the Regular
Session of the Fifty-fifth Legislature adjourned
and before the First Called Session of the Fifty-
fifth Legislature convened. The duly qualified
Board Member serving at the time the term expired
continues to function as a Member of the Board at
the present time.
"So far as I am able to determine neither the
name of this Board Member nor any other name was
Honorable Robert S. Calvert, page 2. NW-304)
submitted to the Senate of the First Called
Session of the Fifty-fifth Legislature for
confirmation for the ensuing term and no
confirmation was considered or made."
This matter involves the possible application of
the following constitutional provisions and statutes of the
State of Texas:
(1) Section 12 of Article IV of the Constitution of
Texas, which provides in part:
"Sec. 12. All vacancies in State or district
offices, except members of the Legislature, shall
be filled unless otherwise provided by law, by
appointment of the Covernor, 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. . . .'
(2) Section 17 of Article XVI, Constitution of Texas,
which provides:
"All officers within this State shall continue
to perform the duties of their offices until their
successors shall be duly qualified."
vldes in A(it Article 18, Vernon's Civil Statutes, which pro-
:
"Each officer, whether elected or appointed
under the laws of this State, and each Commls-
sloner, or member of any board or commission
created by the laws of this State, shall hold
his office for the term provided by law and
until his successor is elected or appointed
and qualifies; . . .'I
Your request indicates that In each case the indi-
vidual has served a prior term as a duly qualified member of
the respective board and is continuing to function as a mem-
ber of that Board.
Honorable Robert S. Calvert, page 3. Pm-304)
Section 12 of Article IV, Constitution of Texas, pro-
vides the method for the filling of vacancies in State offices.
Though It specifically provides that should the appointee be
rejected, the office shall immediately become vacant, the sec-
tion is silent as to any requirement which would force the
Governor to make an appointment within a given period of time.
In as much as no successor has been appointed and no appolnt-
ment is required within a specific time, we believe that, there-
fore, Section 12 of Article IV, Constitution of Texas, has no
application to the facts presented. On the other hand, Section
17 of Article XVI, Constitution of Texas, and Article 18, Ver-
non's Civil Statutes, are applicable.
The Court, in Plains Common Consolidated School Dis-
trict No. 1 v. Rayhurst, 122 S.W.2d 322 (Tex.Civ.App. 1938,
no writ history) clearly indicates the purpose of Section 17,
Article XVI, Constitution of Texas, and Article 18, Vernon's
Civil Statutes, In holding:
?Phe purpose of the constitutional and
statutory provisions requiring officers to
hold over until their successors have quali-
fied 1s to prevent vacancies in office and
a consequent cessation of the functions of
government. The constitutional provision Is
self-executing, and, like the similar pro-
visions In the statutes, It is mandatory.
Under the Constitution an officer cannot
arbitrarily divest himself of the obligatlon
and authority to perform the duties of his
office until his successor qualifies; and
even though he resigns and his resignation
is accepted, the law operates to continue
him if office until his successor qualifies.
. . .
An incumbent who holds over continues in office with
all the powers Incident to that office until a successor has
duly qualified and during such time is a de jure and not a
de facto officer. 35 Tex. Jur. 373, Section 31.
-
It is, therefore, our opinion that under the provisions
of Section 17, Article XVI, Constitution of Texas, and Article
18, Vernon's Civil Statutes, the official status of the subject
Board Member is that of a de jure officer and that such lndivid-
ual Is in fact obligated tocontinue to serve as a member of
the particular Board to which appointed until such time as a
successor has been appointed and duly confirmed under the pro-
visions of Section 12 of Article IV, Constitution of Texas,
Honorable Robert S. Calvert, page 4. NW-304)
even though one or more sessions of the Legislature may convene
In the interim. It follows that it is also our opinion that
you are, therefore, authorized to issue a warrant In payment
of the subject Member's salary as of this date.
SUMMARY
A Member of a Board or Commission whose
appointive term has expired during the
recess of the Senate and whose successor
has not been appointed and submitted to
the Senate of the First Session of the
Legislature convening after the explra-
tion of the Member's term, is a de jure
officer and Is authorized to serve as a
member of the particular Board to which
appointed until his successor has been
appointed and qualifies. The individual
member Is, therefore, entitled to re-
ceive any salary earned as a Member of
the particular Board or Commission.
Very truly yours,
WILL WILSON
WCR:pf:zt
APPROVED:
OPINION COMMITTEE
Geo. P. Blackburn, Chairman
C. K. Richards
J. C. Davis, Jr.
Leonard Passmore
B. H. Tlmmlns, Jr.
John H. Minton, Jr.
REVIEWED FOR THE ATTORNEY GENERAL
BY: James N. Ludlum