Texas Attorney General Opinion: JM-1161 Page: 5 of 12
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Honorable Ted B. Lyon - Page 5 (JM-1161)
the proposed removal. The session may not
exceed two days in duration.
The provision means, in our opinion, that a person
appointed to office by the governor when the legislature is
not in session cannot be removed from office by the governor
except with the concurrence of the necessary senatorial
vote. Cf. Dorenfield v. State, 73 S.W.2d 83 (Tex. 1934).
Inasmuch as no senate action was then possible, the
governor's original appointee could not have lost his office
by action of the governor before the legislature convened
November 14, 1989.
In our opinion, the failure of the governor to submit
to the senate the name of a nominee during the special
session that began November 14, 1989, neither effected the
removal of the nominee from office instanter nor defeated
the constitutional requirement that his recess appointee,
in order to continue in office, meet approval during the
session of two-thirds of the senate present. Tex. Const.
art. IV, 12; I. art. XV, 9.
Section 12(a) of article IV provides that if the
governor makes an appointment to fill a vacancy during a
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. (Emphasis added.)
The constitutional provision does not leave room for other
alternatives. Cf. Walker, supra. In default of the
governor nominating "some other person" to fill the vacancy
within the first ten days of the session, the "said
appointee," in our opinion, is ipso facto nominated to the
senate.
In our opinion, when the governor failed to submit the
name of another person to fill the vacancy on the 363rd
Judicial District Court within the first ten days of the
called legislative session that began November 14, 1989, the
name of his original nominee to that post was at that
juncture before the senate for confirmation or rejection.
Section 9 of article XV prevented the governor's failure to
submit the appointee's name to the senate from operating as
a removal from office.p. 6126
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Texas. Attorney-General's Office. Texas Attorney General Opinion: JM-1161, text, April 20, 1990; (https://texashistory.unt.edu/ark:/67531/metapth273599/m1/5/: accessed July 18, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; crediting UNT Libraries Government Documents Department.