OFFICE   OF THE ATTORNEY        GENERAL   OF TEXAS
                          AUSTIN




Hon. W. Lee O*Daniel
Governor of Texas
Austin, Texas
Dear Sir:




                                          etter of July 3, 1939,
wherein you request the                 his Department upon the
following question
                                           , Section 12 of our
                                              an appointment by
                                   vacancy in the Judiciary
                                    ent is subject to confinua-




                          12, of the Constitution, reads as

          '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, which appointment, if made during
     its session, shall be with the adviCe and consent
     of two-thirds of the Senate present. If made tir-
     ing the recess of the Senate, the said appointee,
     or some other person to fill such vacancy, shall
Bon. W. Leo O'Danicl, Page 2.



    be nominated to the Senate during the first ten
    days of its session. If rejected, said office
    shall immediately bewme vacant, and the Governor
    shall, without delay, make further nominations,
    until a confirmation takes place. But should
    there be no confirmation during the session of
    the Senate, the Governor shall not thereafter ap-
    point any person to fill such vacancy who has
    been rejected by the Senate8 but may appoint some
    other person to fill the vacancy until the next
    session of the Senate or until the regular election
    to said office, should it sooner occur. Appoint-
    ments to vacancies,in offices elective by the
    people shall only continue until the first general
    eleotion thereafter.*
     Article 13,Section 28, of the Constitution, reds    as
follows;
          *Vacancies in the office of Judges of the
     Supreme Court, the Court of Criminnl Appeals, the
     Court of Civil Appeals and District Courts shall
     be filled by the Governor until the next succeed-
     ing general election; and vacancies in the office
     of County Judge and justices of the peace shall
     be filled by the Commissioners Court until-the
     next general election for such offices.*
     There is no inconsistency in these two oonstitutional
provisions. Section 28 of Article 6 merely provides that the
Governor shall make the appointments mentioned therein;
whereas, Section 12 of Article 4, in f?ffeCt, provides that
all appointments made by the Governor to State or District
offices shall be subject to con~firmationby the Senate. It
follows that in event of a recess appointment made by the
Governor to fill.a vacancy in a judicinl position, the
said appointee, or some other person to fill such vacancy,
must be nominated to the Senate during the first ten says
of its session.
     Section 18, Article 3, of the Constitution of the State
of Texas, provides us fvllowsr
          *NO Seuator or Representative shrill,during
     the term for which he may be elected, be eligible
     to any civil office of profit under this State,
     which shall have been ,creatcd,or the emoluments
aon. W. Lee OtDanielt,Page 3.




    of which may huve been increased during such term;
    no maaber of tither House shall, (luringthe tenn
    for which he is elected, be eligible to any of-
    fice or place, the appointment to which may be
    mode, in whole or in part, by either branch of
    the Legislature$ and no member of either House
    shall vote for any other member for any office
    whatever, which may be filled by a vote of the
    Legislature, except in such cases as are in this
    Constitution provided. Nor shall any member of
    the Legislature be interested, either directly
    or indirectly, in any contract with the State,
    or any county thorcof, authorized by any law
    passed during the term for which he shall have
    been elected."
        The first clause of the first sentence of the above
quoted constitutiona p~~ovisionrenders nny member of the
Legislature during.thc term for which he was elected in-
eligible to any Civil office of profit under this State
which is created, or the cmoJuments of wl~icharc increased,
during such term, regardless of the fact'that the Legisla-
ture may have nothing,whatsoever to do with the appointment
to or the filling of such sffice. The second clause of the
first sentence renders every member of the Legislbture
during the term for which he is elected ineligible to hold
any office or place, where either the whole or a part of
the appointment to such office may be made by either branch
of the Legislature. The third clause of the first sentence
displays an intent on the part of the framers of the
Constitution to anticipate all conceivable situations in
respect    to the matter with which they were dealing in
.such section, by providing that no member of either Rouse
of the Legislature should vote for'any other member for
any office whatever that may he filled by a vote of the
Legislature, except in such cases as are by the Constitu-
 tion expressly provided. An instance of such exception.
may be found in Section 9 of Article 3, wherein provision
 is made for the election of a President pro ternof the
 Senate and a Speuker of the Douse, and for the election
 of other officers of each Douse.
     A reciprocal provision may be found 3.n SeCtiOn 19
Of Article 3 of the Constitution, which provides:
          “Ho juilgc of any Court, Secretary of State,
     Attorncy~General, clerkof any court of record,
     or any person holding a lucrative office under
                .
Bon; 1. Lee O*Daniel, Page 4




     the United States, or this State, or any,foreign
     government shall during the term for which he is
     elected or appointed, be eligible to the Legis-
     lature."
     It is evident thatconfirmation by the Senate is treated
by tke Constitution as part and parcel of the completed ap-
poinknent. If the appointment be made by the Governor during
the session, it is inoperative and does not confer my right
to tle.office unless consented to or confirmed by two-thirds
vote of the Senate. If made during recess, the appointment
of the Governor confers no absolute right to the office, but
only a right defensible by adverse actionof the Senate.
And since confirmation or rejection of nn'nppointee by the
Senate is not a legislative act, such confirmation or rejection
may be haa during a special session, the Constitution contes-
plating that the appointee shnll be nominated to the Senate
during the first ten days of its session, whether the some
be a epecinl session or n regular session.
      It is thus apparent that "ppr@of   the appointmcnt'ctd.
"an office in thenJudiciary department of this State may be
 made by the Senate, through its action in confirming such
 appointee to the office. Therefore, iindcrthe-second clause
 of Section 18 of Article 3 of the Constitution, a member of
 the Legislature, c2uringthe term for which he is elected, is
 ineligible for appointment to a vac.ancyesisting in the
 Jucliciarydcpartmont of the State government.
      The reasoning of the courts in the opinions cited below
 support the conclusions reached nbove:

      Drown vs. State, 43 Tex. 4781 Barrington vs. Pnrdee,
 82 Pac. 83; Alarburyvs. Madison, 2 L. Ed. 60.
                                    Yours very truly
                               ATTORNEY GIFNERALOF TEXAS

                               BY       (.d~(.;’
                               (Signed)
                                        3. 8. Fairchild
                                               Assistant