Case Information
*1 I OFFICE OF THE AnhNEY GENERAL OF TEXAS
AUSTIN
Board or Dirootora
Tana Collsgr of Arts k Induatri~
Ilin~;mill.r, Texae
xmar Slrat
allege of A&# and under ths iaotn Gorsrnor O*Danlel undertook l&fir4 for the DUrpOSO Oi rred sxietsa on Juns 65, g lsttsr of appointment to -ia\Psen---~--- "I 89 to&x appointing the r0ii0ring 00 Member8 or t t 43 3306rd .0r Bwmtr 0r Tsxam
col.lrge or Art8 and Imlu$trie# at r%wevlllr,
ror six year termq $0 srplrr Jun6 20, 1947r
-1 Bert3 or Direotors, Texss Colls~e of Arts di Industries, pags t
..
OYorrl.8 Robe&, Victor18
H. S. Wltts, Corpus Chrfsti Cal, Mrs. J, E, King, San Antonio _ 'Tleass issue the above oommlsslons at your earliest opportunIt7, i
"Slnoenly yours, /s&l/ W. Leo OQsnlel Oersrnor of TOZBS.~ Subsequently, on J\rly Z9, 1941, this dapartmant hala In opinion No. O-3384 that the terms of members or this Board oomnmnoad and terminated as OS September 1 whererore no vaoan- ales would sxlst on the Beard a8 of June 84. No other action with regard to the matter was taken by Covernor OQDaniel.
On Au.gmt 4, 1941, Governor O%~nlsl assumed tit.8 ofrlos of United states Senator, thereby vaoatlng the orfior or Covernor an4 Lieutenant Governor Coke Stevenson became Governor or Taxas.
ve are advised that the lniormal rsoords or the I Seorstary or state lndloatsa that t4m tsm~ 0r 0rrl00 ot the
threr dlr6otors lnrolrad erplrrd on Jtms 25, 194l, and that :. Corernor OQanlelw~s so lnfonaeb; The bovamor u&art&ok
to appoint nr. Roberts, Mr. mitt =a lm. xlng to six-yesr tmns ending June Sb; 1947. ObvlOUrly for a six-year term to end June 25, 1947, it must oonunsnos on June 85, 1941.
The Gotsrner~s letter 0r ap ointment dsmonstrat~s an intent
to tillvaoanols8 Whloh ha i run& 6xlstWl on J&H 25, IOU, at whloh time he wss OOV6rnWe It nauld oppose the express language of the appointment lstter~-to~sa that he purpcssb ~~rr~lll~~nolr8 on the Board whloh wo up d arise on Septem- .
,
~~oonsequenoe, we (Lo not belirve that ths faots warrant the oonoluslon that Governor OQanlel lntendea to mke ths a pointments involved as of Sepbmber 1, if the
appointmen 5 should be iOr any reason 1nafiectlVe as Of f
June Zb. Yoreover, It 1s doubtful if an appointment expressly rslatsd.to a purported vacanoy on a prior date would oon- rtituts as a matter 0r law, a mid appointixnt to a
prospeo$lte aotual Vaoanoy on a later date,
I, . . +i
4.32 Jo Board Oi Dlrsotors, TOW! Colle&e or Arte & Industries, m~s 3
Ii, however, the appofntnonts under :avlen bs re- ~~varded as lntsndsd for, an4 stisotivs as of, September 1 it is cur opinion that they would none the lass br Inefrectfts.
Upon the question of prospective a polntnents, es surs to occur lrorc appolntmmts in advancs to fill vccaqo i!
subssquently in publlo olrloea, them Is u#anlnlty or apin- Ion among the o:urts that suoh eppolntmnts are Invalid ii the tann ai the ofilce fillad OSMOt be& until tho tom of the agpolntln~ ymer an4 the power to apaolnt .havs ax- gdred.
It was deolnrod by tha Sugrom Court of Alabarra la Oberbaue v. State, 173 Ala. 4E3, 55 So. 8C8, 9028
*&e have oarefully oxrrnlned the cuthorl- ties on this pro~osltlon, and, as th:!re Is co ~~tcrlal o;~dllot a-::ong thsz, It Is zot naow- sary to hnre roproduoe tb:rslr Ian@%-a or rea- eonlnl, Tncp clearly 5ert.15 the lnw to the 0rr00t that the appointing sower or,:.nnot fora- atoll. the ri ~.hts nn4 ?roro:$ntivns of Its mm aucowwor by a-.pointln~ auooeasom to 0friOflm whose otrloiel terms sXplr0 oontsm;~oranooua- ly with or altar the sx?imt.ion of the tern of the n?poIntlng ,?bwsr; but whore, by law or porsonsl aotion, the ol'fioe to t:e filled by appointment vxnt bsooma vnoant by the ex- PiratIon of the lnouabezd's tann or by his withdrawal during the tmn oi the epi‘oint- llr~ ;wwem, a prom~eotlve appol:it?.ant thnre- to, if not forbidden by law, zsy be zade at ;l;~qmlant sermon before the aotilr.1 erpira- Xsohsn on imbllo Off1085 an4 Ofrlosrs, ! !$I Throop on Publlo Offloers, I 92; 28 k. . 2, ;Pnay. Lnw, 347 29 CYO. 1373; Slitit OX ml, *&rrls v. 3ull van 01 Ohio St. 79, 90 i
N. 5. 146, Et L. R. A. IN. 3.) 514, ou.4 riots; Stnts sx rd. Mltnay v. Van Buskirk, 40 1;. J. IA%W, 463; State ex rsl. Child% v.
O'Leary, 64 t.'dM. EC7, 66 11, viii. 264. And this ws hold to be the law,"
In aceor& nro tha Non York C~SRS of 2eoAde v+ Fitz- ...~mlfl, 180 N, y. 269, 73 f:. ::. 53, fml Town0 v. Fortor, 1% kgps1bts IiivisIon 717, l..l3 ::. Y. Su>, 72s. In the first oaae the Court of Appeal? Bpidl
Board OS Direotors, Tsxaa, Colle:!e ‘of Arts & Industrlas, Pago
*. . , An appointment to office in antf- olpation of a vaoancy therein is good only in
oaee the offloor aeakia the eppointmnt lr still in offlcc when the vecanoy occurs.”
To tho sam ofteot em the Ohio oases of Stats T. Caen, 98 Ohio State 277, 117 1:. E. 238, and State v. Sulll- ran 81 Ohio Btete 76, 30 FJ. X. 145. In the first oesa
men loned, t it yyes doclared~
” . . . It hem generally been held that the appointing power bar lull authority to antlol-
pet0 vecanoiea in its ep olt&nsnts. This legal
prinol al, however, la 1 mlted ! in that suoh
veeano le as, whetter by reslgnatlon or en,plra-
tion of terzn, mmt ocaur during ths life of
the agpolntlng gowar, The letter oannot saddle
upon its uuoosssors appointerr whore ottlolal
terns are to begin thereafter. , . .”
The rule ww sxprsssed as follows by the Suprem Court of Maine in Pattangall v, Oilman, 115 MB. 344, 98 93bl
Atl.
ma . . The authorltias are &enlmouely - in favor of the proposition that, if tho term
or the appointing power extehd8 beyond the
point of tAna when ths veoanoy arises, a
prospeotlve appointment mey be made! and that Lf the tam of the appoint-
conversely
ing power d 06s not extend unti1.e veoancy
arises in the eppointive offior, no appolnt-
mnrtnt, prospeotlve or otherwise, may be mede
by that appointing power. The reason 1s
slrnpls. The appointing p&&r oanriot fore-
stall the rlghts and prerogatives of his own
auooessor by appointing suaoessors to office
beginning after his yovrar to appoint ha8
itself expired.”
See also Ivy v, Lusk 11 Le. Ann. 4861 State V.
blerhen, 45 N. J. Law 1891 Peoph v, Ward, 107 Gel. 836,
40 Pea, 5381 48 Corpus Uurls, 1 64, p. 9% -1
r
Eoard of Dlrrotora, Texer Ooll8gr of Art8 B Indurtrler, Faga 8 .,
The untlerlylng rea8ons for these pronouncement8 by the oourtr epply with r8peolel force to tha matter et
hand. Governor O'Dani81 had ennounoed for end hi& been
eleoted to the orflos of United Stats8 Senator. Upon errrum- lng this offloe h8 would eutomatloelly veoete the offioe
Of Governor and Lisutsnent Gov8rnor Stevenson would beoom8 hi8 8uooe88or. Thereupon, Governor OQanlel~8 appointing
power muld expire, Xhen tM8 muid ooour via8 a matter to
br dsclded by him alone. So long e8 ha ohoes to remein e8
Oovernor it we8 his right to mak8 eppolntmenta to fill
veoenoler In publio offloe whloh had arisen, and to make
prosp8otivr appointments to fill vaoenole8 whloh would
aria8 while he continued to oooupp tho office of dovernor
end we8 po88rssed of the appointing power. During this
time, how8ver he wea, in our opinion, without the power
to make entloipato appolntnents to fill vacanoles whioh would erlee after h 8 appointing power bad termbated. Thr 7: paver to fill veoenoles erlrlng after h8 left the Gover-
nor*8 offio8 18 the prerogative of Oovsrnor %8von8on, hi8
aucoosaor, and oould not br forestalled by any eot ot Governor OlDeniol, whether under e mlatake of faot or other- wlae.
Aotuelly the fact8 oonrlnoingly lndloate that Governor O%enlel was mer8ly undertaking to fill oBoeno
upon the Board which he oongldered had already arisen.
Doubtleaa he would have made no attempt to fill the thre8
meobsrehlps on the Board of the College had he known et
the time that the offioes would not beoome wcent until
September I.. In any event, it lo the oplnlon of thls,de-
partment that tho aotlon of Corernor OWeni in na!alng Mr. Roberts, Mr. Butt and Mr8. King to the Board of Dlreo- tore of the Tmxe8 Collsgo of Arta & Indu8trie8, under the
faots whloh we have reviewed, 18 of no fore6 and rffsot
end thnt the three menberahipr on the Board whloh will
beooms vacant on September 1, 194l ece 8ubject to being
filled by appointment by Governor 4 tevonuon.
Very truly your8