After the Mississippi Senate refuses to confirm a governor's nominees, can the governor send the same names back, or appoint different people, while the Senate is out of session?
Plain-English summary
The Mississippi Legislature created the State Board of Cosmetology and Barbering in 2024. The Governor sent his initial nominees to the Senate for confirmation in the 2025 session. The Senate adjourned without confirming them, and the names were returned. Senator Rhodes asked the AG: while the Senate is out of session, can the Governor reappoint the same people, or pick different people, subject to the 2026 session's confirmation?
The AG's answers:
- Same names: No. Section 7-1-35 says any vacancy "shall not be filled if caused by the Senate's refusal to confirm any appointment or nomination." When the Senate adjourns without confirming, that counts as refusal, and the appointment is "annulled from that date." Sending the same names back during vacation would render the statute meaningless.
- Different names: Yes, but only as de facto officers. Section 7-1-35 also authorizes the Governor to fill vacancies during Senate vacation. New appointees become "de facto officers": their acts on the board are valid and binding, but they cannot receive salary or per diem until the Senate confirms them in the next session. The Governor must report the appointments to the Senate within ten days after the next session starts.
The Governor also has another tool: Section 7-1-37 lets the Governor convene the Senate in vacation just to consider appointments, with ten days' notice by mail to each senator.
What this means for you
If you work in the Governor's office or advise the Governor on appointments
Three practical takeaways from this opinion:
- Do not resubmit the same names that the Senate declined to confirm. The annulment is automatic and the AG has been consistent on this since at least 1996 (Gordon opinion). If those names are sent back during vacation, every action they take is vulnerable to challenge.
- New names are workable, but think through the de facto status. The new appointees can show up, vote, and execute board functions, but they cannot draw a salary or per diem until the Senate confirms. Plan accordingly: do not promise compensation that cannot legally be paid.
- Consider Section 7-1-37. If the appointments are urgent (and the cosmetology and barbering board's vacancy threatens roughly 50,000 licensed professionals, per the related October 7, 2025 opinion), the Governor can convene the Senate in vacation just for confirmation, with ten days' notice by mail to senators.
If you are a Mississippi senator
When the Senate adjourns a session with appointments still pending, the practical effect under Section 7-1-35 is "refusal to confirm." That annuls the appointment. Senators cannot then later complain that the Governor went around them by appointing different people during vacation; that path is expressly authorized by the same statute. If you want a particular name to stick, vote them up or down before adjournment. Letting the calendar run out has the same legal effect as a no vote, but with less political accountability.
If you have been appointed to a Mississippi state board during a Senate vacation
You hold the seat as a de facto officer until the next Senate session confirms you. Your acts are valid and binding under Section 25-1-37. But you are not entitled to salary or per diem during this de facto period (Miss. Bd. of Levee Com'rs v. Montgomery, 110 So. 845 (Miss. 1927)). Plan for that, and confirm with the appointing authority and the agency's counsel what compensation, if any, you can lawfully receive. The Governor must submit your name to the Senate within ten days after the next session begins.
If you are a licensee or applicant who depends on the Cosmetology and Barbering Board
This opinion (combined with the October 7, 2025 follow-up) is the legal basis for a working board after the 2025 confirmation lapse. If new members were appointed by the Governor during vacation, their decisions on licenses, exams, complaints, and discipline are valid and binding under Section 25-1-37, even before the 2026 Senate confirms them. If you want to challenge a specific board action on the ground that an appointee was unconstitutionally seated, the AG points to Nelson v. State, 626 So. 2d 121 (Miss. 1993): the challenge has to be brought against the actor in a quo-warranto-type proceeding contesting the right to office, not collaterally in a license-discipline matter.
Common questions
Q: What happens if the Mississippi Senate adjourns without voting on a Governor's nominee?
A: Under Section 7-1-35, that is treated as a "refusal to confirm." The appointment is annulled from that date. The Governor cannot fill that same vacancy in vacation by reappointing the same person.
Q: Can the Governor reappoint someone the Senate refused to confirm?
A: Not while the Senate is in vacation, because Section 7-1-35 expressly forbids filling a vacancy caused by the Senate's refusal. The Governor's options are to wait until the next session and try again, or to convene the Senate under Section 7-1-37.
Q: Can the Governor appoint someone different to the same seat during Senate vacation?
A: Yes. Section 7-1-35 authorizes vacation appointments. The new appointee serves as a "de facto officer" until the Senate confirms in the next session. The Governor must report the appointment to the Senate within ten days after the session starts.
Q: What is a "de facto officer"?
A: Someone who exercises the powers of an office under "color of authority" without final, confirmed right. The Mississippi Supreme Court has long held that a Governor's appointment is itself "color of title and authority" (Upchurch v. City of Oxford, 17 So. 2d 204 (Miss. 1944)). The acts of de facto officers are valid and binding under Section 25-1-37.
Q: Can a de facto officer get paid while waiting for confirmation?
A: No. The Mississippi Supreme Court held in Mississippi Bd. of Levee Comm'rs v. Montgomery, 110 So. 845 (Miss. 1927), that de facto officers are not entitled to salary or per diem. They serve, and their acts are binding, but they do not draw compensation until the Senate confirms.
Q: Can the Governor force the Senate to vote on appointments before the next regular session?
A: Yes. Section 7-1-37 lets the Governor "convene the senate in the vacation of the legislature for concurrence in appointments by giving ten days' notice thereof by proclamation by mail to each of the senators." This is a standing tool that has been used historically to break confirmation logjams.
Background and statutory framework
Mississippi's appointment-and-confirmation framework is codified primarily in Section 7-1-35. The Governor "shall fill by appointment, with the advice and consent of the Senate, all offices subject to such appointment when the term of the incumbent will expire within nine (9) months after the meeting of the Legislature, and also vacancies in such offices occurring from any cause during the session of the Senate or during the vacation of that body." Vacation appointments must be reported to the Senate within ten days of the next session for advice and consent. The statute then has the key provision: "the vacancy shall not be filled if caused by the Senate's refusal to confirm any appointment or nomination." And: "Any appointment in vacation to which the Senate shall refuse to consent shall be thereby annulled from that date, but the acts of the appointee prior thereto shall not be affected thereby."
The Mississippi Supreme Court read these limits strictly in Brady v. Howe, 50 Miss. 607 (1874), and O'Leary v. Adler, 51 Miss. 28 (1875). Vacation appointments are limited to vacancies that "happen" during vacation (or in the last five days of a session); the Governor cannot reach back to fill a vacancy created by Senate refusal.
The de facto officer doctrine fills the practical gap. Adams v. Mississippi State Bank, 23 So. 395 (Miss. 1897), and Upchurch v. City of Oxford, 17 So. 2d 204 (Miss. 1944), establish that an appointee with gubernatorial commission has "color of title" and serves validly as a de facto officer until ousted. Section 25-1-37 confirms that the acts of de facto officers are valid and binding. The salary limit comes from Mississippi Board of Levee Commissioners v. Montgomery, 110 So. 845 (Miss. 1927).
Citations and references
Statutes:
- Miss. Code Ann. § 7-1-35 (gubernatorial appointments and Senate confirmation)
- Miss. Code Ann. § 7-1-37 (Governor may convene Senate in vacation)
- Miss. Code Ann. § 25-1-37 (validity of acts of de facto officers)
Cases:
- Brady v. Howe, 50 Miss. 607 (1874): Vacation appointments limited to vacancies that "happen" during vacation.
- O'Leary v. Adler, 51 Miss. 28 (1875): Same.
- Miss. Bd. of Levee Com'rs v. Montgomery, 110 So. 845 (Miss. 1927): De facto officers not entitled to salary or per diem.
Prior AG opinions cited:
- MS AG Op., Gordon (Mar. 27, 1996): Senate failure to confirm annuls appointment.
- MS AG Op., McArthur (Apr. 26, 2002): Same.
- MS AG Op., Johnson (Nov. 15, 1989): New vacation appointees take office on oath, subject to next-session confirmation.
- MS AG Op., Burnett (June 12, 2000): De facto officer status.
Source
- Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
- Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2025/08/B.-Rhodes-August-29-2025-Appointments-to-State-Board-of-Cosmetology-and-Barbering.pdf
Original opinion text
August 29, 2025
The Honorable Brian Rhodes
Senator, District 36
Post Office Box 220
Jackson, Mississippi 39205
Re: Appointments to State Board of Cosmetology and Barbering
Dear Senator Rhodes:
The Office of the Attorney General has received your request for an official opinion.
Background
According to your request, the State Board of Cosmetology and Barbering ("Board") is a new board. The first Board members were appointed in 2024, and the nominations of those requiring Senate confirmation were submitted to the State Senate to be considered during the 2025 legislative session. The Senate adjourned without confirming the nominees and returned the nominations to the Governor. Because this is a new board, the nominees had no predecessors.
Questions Presented
- May the Governor reappoint one or more of the same nominees while the Senate is in vacation, subject to the advice and consent of the Senate during the 2026 legislative session?
- May the Governor appoint different individuals to the Board while the Senate is in vacation, subject to the advice and consent of the Senate during the 2026 legislative session?
Brief Response
- The Governor may not reappoint one or more of the same nominees while the Senate is in vacation. The Senate's failure to confirm results in the annulment of those appointments.
- Pursuant to Mississippi Code Annotated Section 7-1-35, "the vacancy shall not be filled if caused by the Senate's refusal to confirm any appointment or nomination." However, if the Governor were to appoint different individuals to the Board while the Senate is in vacation, subject to the advice and consent of the Senate during the 2026 legislative session, such nominees would be considered de facto officers until confirmed by the Senate.
Applicable Law and Discussion
You first ask if the Governor may reappoint one or more of the same nominees while the Senate is in vacation, subject to the advice and consent of the Senate during the 2026 legislative session. "This office has consistently held that the failure of the Senate to confirm an appointment properly before it constitutes a refusal to consent to the appointment. Under the provisions of Section 7-1-35 the appointment is therefore annulled from that date." MS AG Op., Gordon at 1 (Mar. 27, 1996); see also MS AG Op., McArthur at 1 (Apr. 26, 2002) (providing same).
Section 7-1-35 provides in part,
(1) The Governor shall fill by appointment, with the advice and consent of the Senate, all offices subject to such appointment when the term of the incumbent will expire within nine (9) months after the meeting of the Legislature, and also vacancies in such offices occurring from any cause during the session of the Senate or during the vacation of that body. All such appointments to offices made in vacation shall be reported to the Senate within ten (10) days after the commencement of the session of that body for its advice and consent to the appointment, and the vacancy shall not be filled if caused by the Senate's refusal to confirm any appointment or nomination, or if it does not occur during the last five (5) days of the session, by the appointment of the Governor in the vacation of the Senate, without its concurrence. Any appointment in vacation to which the Senate shall refuse to consent shall be thereby annulled from that date, but the acts of the appointee prior thereto shall not be affected thereby.
Consequently, because "[s]uch a course of action would run afoul of Section 7-1-35," the Governor may not reappoint one or more of the same nominees while the Senate is in vacation, subject to the advice and consent of the Senate during the 2026 legislative session. MS AG Op., Gordon at *1. "Any interpretation of 7-1-35 allowing this course of action would, in fact, render the statute meaningless. The Governor may convene the Senate in vacation to consider further appointments pursuant to Section 7-1-37." Id.
You next ask if the Governor may appoint different individuals to the board while the Senate is in vacation, subject to the advice and consent of the Senate during the 2026 legislative session. As stated by the Mississippi Supreme Court, "[c]learly the governor cannot appoint to a vacancy which happens during the session of the senate, without its concurrence . . . ; nor can he fill a vacancy caused by the refusal of the senate 'to confirm any appointment or nomination.'" Brady v. Howe, 50 Miss. 607, 617 (1874); see also O'Leary v. Adler, 51 Miss. 28, 33 (1875) ("Appointments by the governor in vacation are limited to vacancies which then happen (and as could not be anticipated and were casual), 'and vacancies which occur during the last five days of the session. . . .'").
This said, if the Governor were to make appointments of new individuals during vacation, as stated by our office in MS AG Op., Johnson at 2 (Nov. 15, 1989), once the Governor has made such appointments "and the oath of office is properly administered and filed with the Secretary of State, the nominees become members of the board subject to confirmation at the next session of the Legislature." (emphasis added). Until confirmed, the nominees would be considered "de facto officers." MS AG Op., Burnett at 2 (June 12, 2000) (citing Brady, 50 Miss. at 614). While the acts of de facto officers are "valid and binding" under Section 25-1-37, de facto officers are not entitled "to receive salary or per diem for their service." Id. (citing Miss. Bd. of Levee Com'rs v. Montgomery, 110 So. 845 (Miss. 1927)); see also Miss. Code Ann. § 7-1-35(1) ("Any appointment in vacation to which the Senate shall refuse to consent shall be thereby annulled from that date, but the acts of the appointee prior thereto shall not be affected thereby.") (emphasis added).
In conclusion, in the event the Governor appointed new members to the Board during vacation (none of whom had been nominated previously), the Senate still must be notified within ten days after the commencement of the session for the Senate's advice and consent.
If this office may be of any further assistance to you, please do not hesitate to contact us.
Sincerely,
LYNN FITCH, ATTORNEY GENERAL
By: /s/ Maggie Kate Bobo
Maggie Kate Bobo
Special Assistant Attorney General