TLG

Article IV, Section 12 of the Texas Constitution (" ... ")

As amended November 6, 1990:

(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.

(g) Appointments to vacancies in offices elective by the people shall only continue until the next general election.

(h) The Legislature by general law may limit the term to be served by a person appointed by the Governor to fill a vacancy in a state or district office to a period that ends before the vacant term otherwise expires or, for an elective office, before the next election at which the vacancy is to be filled, if the appointment is made on or after November 1 preceding the general election for the succeeding term of the office of Governor and the Governor is not elected at that election to the succeeding term.

(i) For purposes of this section, the expiration of a term of office or the creation of a new office constitutes a vacancy.

Editor Comments

No provision of the state constitution authorizes the Governor to unilaterally remove his or her appointee from office.

However, under Article XV, Section 9, a governor may remove such persons with the advice and consent of the senate.

—Attorney Steve Smith

Recent Decisions

None.

Historic Decisions

  • Denison v. State, 61 S.W.2d 1022, 1022-23 (Tex. 1933) ("We agree with the Court of Civil Appeals (61 S.W. (2) 1017) that the subject matter of this suit is a justiciable one, and that the district court of Travis county had jurisdiction of this case. We are also of the opinion that in order for the plaintiff in error, Denison, to have legally qualified as highway commissioner it was necessary for his nomination to the office to be confirmed by the Senate; that is, 'two-thirds of the Senate present' must first have consented before his appointment to the office could become effective. Such are the plain provisions of article 4, s 12, of the Constitution.")
  • Denison v. State, 61 S.W.2d 1017, 1020 (Tex.Civ.App.–Austin 1933, ref'd) ("We think the language of section 12, art. 4, of the Constitution is plain, clear, unambiguous, and capable of but one construction. That the clause 'unless otherwise provided by law' refers to the nominating authority, and has no reference to 'the advice and consent of two-thirds of the senate present.' This language clearly contemplates that the Legislature may, should it see fit, provide by law for the filling of offices created by it otherwise than by appointment by the Governor, and that in such event confirmation by the Senate is not essential.")
  • Keenan v. Perry, 24 Tex. 253, 263 (1859) (on rehearing) ("In the present case, the office, though its tenure is limited by law, is held at the discretion of the governor. . . . It is not intended that he shall have or exercise, a capricious and arbitrary discretion; but a discretion governed by law, and to be exercised, only in the cases provided by law. Still, the office is held at his discretion, not subject to revision, but subject only to the rules prescribed by law, for his government; and if, in its exercise, he should be chargeable with an abuse of his power, as the court said, in the case just cited, this is not the tribunal to which he is amenable.")

Library Resources

Online Resources

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