If a Mississippi governor appoints new members to a state board during Senate vacation, do those appointees lawfully hold office before the Senate confirms them?

Plain-English summary

After the Senate failed to confirm the Governor's initial appointees to the new State Board of Cosmetology and Barbering and the AG's August 29, 2025 opinion explained that the same names could not be reappointed during vacation, the Governor's counsel asked for clarification on a follow-up: if the Governor appoints different people during vacation, do those appointees actually have lawful authority to serve, with no personal liability for "usurping" office? And if so, do they have public-official immunity?

The AG's answers:

• Yes, the new appointees lawfully hold office between appointment and Senate confirmation. They are de facto officers. The Governor's commission gives them "color of title and authority." Their acts are valid and binding under Section 25-1-37. They have a lawful right to act until the Senate confirms or refuses to confirm. Anyone who wants to challenge the appointment has to do so directly through a quo-warranto-style proceeding contesting the right to office, not collaterally.
• The AG cannot opine on public-official immunity for the appointees. That involves mixed questions of law and fact. Section 7-5-25 limits the AG to prospective questions of state law.

The AG also flagged the policy stakes: the Board oversees roughly 50,000 professionals, and the previous separate Cosmetology and Barber Examiner boards were abolished by statute on January 1, 2025. Without functioning new appointees, regulatory oversight of those 50,000 licensees would be a vacuum.

What this means for you

If you are an appointee to the Cosmetology and Barbering Board (or any Mississippi state board) serving before Senate confirmation

You have legal authority to act. Vote, deliberate, sign orders, conduct hearings. Section 25-1-37 makes your official acts valid and binding. You are not "usurping" the office, because the Governor's commission gives you color of authority. The August 29, 2025 opinion plus this October 7, 2025 clarification together establish that appointees in your position are de facto officers, not unlawful holdovers.

Two important caveats:

1. You cannot draw salary or per diem until the Senate confirms you (the August 29 opinion makes that explicit, citing the 1927 Levee Commissioners decision).
2. The AG did not opine on whether you have public-official immunity if a board action you take leads to a lawsuit. That is a fact-specific liability question. Talk to your board's general counsel about insurance coverage and indemnification before signing high-stakes orders.

If you are a Mississippi cosmetologist, barber, salon owner, or apprentice

The Board's authority over your license, exam, complaint, or discipline does not evaporate during the de facto period. Decisions made by appointees serving under the Governor's commission are valid and binding, even if the Senate has not yet confirmed them. If you want to contest a specific board decision on the ground that the appointees did not lawfully hold office, the AG points to Nelson v. State, 626 So. 2d 121 (Miss. 1993): the right-to-office challenge must be brought as a separate proceeding (a quo-warranto-type action) against the actor, not as a collateral attack inside your license case.

If you are general counsel to a Mississippi state board or agency where appointees are serving without Senate confirmation

This opinion is the citation you want when someone challenges the Board's actions. Two separate AG opinions (August 29, 2025 Rhodes and October 7, 2025 Sclafani) plus the Adams, Upchurch, Barton, and Schroeder line of cases all support the position that vacation appointees serve as de facto officers with valid authority. Combine that with Section 25-1-37 and Nelson for the procedural rule that any challenge has to be a direct attack on the right to office.

If you are an executive-branch lawyer thinking about future board appointments

The October 7, 2025 opinion confirms that the de facto officer doctrine is a real, working backstop when the Senate fails to confirm. But the AG also flags the policy concern: a board that has been statutorily abolished and whose successor has no confirmed members creates a "vacuum" for the regulated professionals. If you are designing a transition statute, build in a backstop: extend the predecessor board's authority until confirmed members of the successor are seated, or include an emergency interim provision. Relying on de facto officer doctrine works in court but invites litigation and uncertainty.

Common questions

Q: Are the Governor's vacation appointees actually allowed to act on the Board, or are they usurping the office?
A: They are not usurping. They are de facto officers under color of authority from the gubernatorial commission. Their acts are valid and binding under Section 25-1-37.

Q: Why didn't the AG say whether they have public-official immunity?
A: Because immunity is a fact-specific liability inquiry, and Section 7-5-25 limits the AG to prospective questions of state law. The AG cannot determine in advance whether a particular act will be entitled to immunity.

Q: How do you challenge whether an appointee actually has the right to hold office?
A: Through a direct proceeding against the actor contesting the right to office (a quo-warranto-style action). You cannot raise it as a collateral defense inside an unrelated case. That is the Nelson v. State, 626 So. 2d 121 (Miss. 1993) rule.

Q: What happens if the Senate ultimately refuses to confirm a de facto officer?
A: The appointment is "annulled from that date." Acts taken before the refusal remain valid (Section 7-1-35; the August 29 Rhodes opinion). The seat is then vacant and cannot be filled by the Governor in the same way that triggered the refusal.

Q: Does this opinion help any Mississippi state board, or only the Cosmetology and Barbering Board?
A: The reasoning is general. The de facto officer doctrine and Section 25-1-37 apply to any state board where the Governor appoints with Senate confirmation. The opinion specifically addresses the cosmetology and barbering situation, but the legal principles are not specific to that board.

Q: Why did the AG flag the 50,000-licensee number?
A: Because the prior two boards (Cosmetology and Barber Examiners) were abolished by statute on January 1, 2025, and without functioning successor members, the regulatory regime for those professionals would be paralyzed. The AG used that policy fact to emphasize why the de facto officer doctrine matters in this specific situation.

Background and statutory framework

The State Board of Cosmetology and Barbering was created by Laws 2024, Ch. 437 (H.B. No. 313), effective on passage (April 25, 2024). Section 73-7-1 sets the Board at seven members, six of whom are appointed by the Governor with Senate confirmation. The statute required the Governor to make initial appointments before August 1, 2024. If those appointments were made, the existing State Board of Cosmetology and the State Board of Barber Examiners would dissolve, and the prior governing statutes would be repealed effective January 1, 2025. All assets of the predecessor boards were to transfer to the new Board by that same date.

The Governor made the initial appointments and submitted them to the 2025 Senate, which adjourned the regular session without confirming. The First Extraordinary Session did not include the appointments in the call. The Legislature did pass H.B. 18 making appropriations for the new Board, signed June 4, 2025. By the date of this opinion, the Board lacked six of its seven members.

The de facto officer doctrine is the legal mechanism that keeps the regulatory machinery functioning. The Mississippi Supreme Court has applied it for over a century:

• Adams v. Mississippi State Bank, 23 So. 395 (Miss. 1897): "An officer de facto is one who exercises the powers and discharges the functions of an office, being then in possession of the same under color of authority, [even] without actual right thereto."
• Upchurch v. City of Oxford, 17 So. 2d 204 (Miss. 1944): A gubernatorial appointment is "certainly color of title and of authority."
• Barton v. Barton, 726 So. 2d 163 (Miss. 1998): A de facto officer can retain color of authority as long as he has some claim to his position; appointment is one such claim.
• Mississippi Real Estate Appraiser Licensing and Certification Board v. Schroeder, 980 So. 2d 275 (Miss. Ct. App. 2007): De facto officers have valid authority to act in an official capacity.

Section 25-1-37 codifies the result: the acts of de facto officers are valid and binding. Nelson v. State, 626 So. 2d 121 (Miss. 1993), adds the procedural rule: any challenge to the right to hold office must be brought directly against the actor in a proceeding contesting the right, not collaterally inside another case.

Citations and references

Statutes:
- Miss. Code Ann. § 73-7-1 (Board composition)
- Miss. Code Ann. § 25-1-37 (validity of acts of de facto officers)
- Miss. Code Ann. § 7-1-37 (Governor may convene Senate in vacation)
- Miss. Code Ann. § 7-5-25 (AG opinion authority)
- Laws 2024, Ch. 437 (H.B. No. 313): Creation of combined Board.

Cases:
- Adams v. Mississippi State Bank, 23 So. 395 (Miss. 1897): De facto officer definition.
- Upchurch v. City of Oxford, 17 So. 2d 204 (Miss. 1944): Gubernatorial commission as color of authority.
- Barton v. Barton, 726 So. 2d 163 (Miss. 1998): Color of authority while claim to office persists.
- Mississippi Real Estate Appraiser Licensing and Certification Board v. Schroeder, 980 So. 2d 275 (Miss. Ct. App. 2007): Valid authority of de facto officers.
- Nelson v. State, 626 So. 2d 121 (Miss. 1993): Right-to-office challenges must be direct, not collateral.

Prior AG opinion cited:
- MS AG Op., Head (Nov. 25, 1998): AG limited to prospective questions of state law.

Related authority:
- 43 Am. Jur. Public Officers § 495 (1942): De facto officer doctrine grounded in public policy and prevention of failure of public justice.

Source

• Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
• Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2025/10/Sclafani-Reeves-October-7-2025-Appointments-to-State-Board-of-Cosmetology-and-Barbering.pdf

Original opinion text

October 7, 2025

Joseph Sclafani, Esq.
Counsel, Office of the Governor
[email protected]

Re: Appointments to State Board of Cosmetology and Barbering

Dear Mr. Sclafani:

The Office of the Attorney General has received your request for an official opinion.

Background

According to your request, you seek clarification of our August 29, 2025, opinion ("Opinion") in which we stated that if the Governor were to appoint individuals to the newly created State Board of Cosmetology and Barbering Board ("Board"), different from those not confirmed in the 2025 regular session, while the Senate is in vacation, subject to the advice and consent of the Senate during the 2026 legislative session, that such nominees would be considered de facto officers until confirmed by the Senate.

The Board was created by Laws 2024, Ch. 437 (H.B. No. 313), § 1, eff. from and after passage (approved April 25, 2024). Pursuant to Mississippi Code Annotated Section 73-7-1, six of the seven board members are "to be appointed by the Governor, with the advice and consent of the Senate. . . ." Section 73-7-1 continues, stating that "[t]he initial appointments must be made before August 1, 2024. If appointments are not made by August 1, 2024, the State Board of Cosmetology and the Board of Barber Examiners shall continue to operate in their separate capacities until such time as the Board of Cosmetology and Barbering is appointed." Thus, the Governor's initial appointments to this new combined board triggered the dissolution of the two independent boards and the repeal of the statutes governing the two independent boards, effective January 1, 2025, one week prior to the start of the 2025 legislative session. "All property and assets owned by the Mississippi State Board of Cosmetology and the State Board of Barber Examiners shall be vested in and transferred to the Mississippi State Board of Cosmetology and Barbering by January 1, 2025." Laws 2024, Ch. 437 (H.B. No. 313), § 52.

As noted in the Opinion, the Governor appointed members to serve on the newly created Board. In January 2025, these appointments were submitted to the Mississippi Senate for advice and consent. However, the Senate adjourned the 2025 Regular Legislative session without confirming these appointments, and said appointments were returned to the Governor. The appointments were not included in the call for the First Extraordinary Session; however, the Legislature passed H.B. 18, making appropriations for the Board, which the Governor signed on June 4, 2025. Lacking six of its seven members, there is currently no Board in place to assume the statutory responsibilities set forth in Mississippi Code Annotated Sections 73-7-1 et seq.

Questions Presented

1. If the Governor appoints different individuals to the Board, would such appointees lawfully hold office between the date of appointment and the date they receive Senate confirmation [and thus have no liability during this time period under Mississippi Code Annotated Section 25-1-37 stating that persons that do not lawfully hold office "shall be liable [for] all the penalties imposed by law for usurping or unlawfully holding office, or for exercising the functions thereof without lawful right. . . .]?
2. If the answer to Question one is "yes" [such appointees would lawfully hold office between the date of appointment and the date they receive Senate confirmation], are such appointees entitled to public official immunity during this time period?

Brief Response

1. "An officer de facto is one who exercises the powers and discharges the functions of an office, being then in possession of the same under color of authority, [even] without actual right thereto." Adams v. Mississippi State Bank, 23 So. 395, 398 (Miss. 1897). "[A]ppointment by the Governor [is] certainly color of title and of authority." Upchurch v. City of Oxford, 17 So. 2d 204, 205 (Miss. 1944). The Governor's appointments to the Board under these circumstances are valid de facto officers and have the lawful right to serve until the Senate confirms, and during that time, their acts are valid and binding.
2. We are unable to opine upon matters of liability, which involve mixed issues of law and fact.

Applicable Law and Discussion

In the Opinion of which you seek clarification, this office was asked specifically about executive appointments to the Board made in vacation after the Senate's failure to confirm. In response, we opined that vacation appointments under the circumstances described would result in de facto officer status until such time as the Senate, in the 2026 legislative session, confirmed the appointments. At present, not only have the two previously independent boards been abolished by statute, but the newly created Board is currently non-existent, and instead of a functioning arm of government with its attendant obligations, responsibilities, and duties, the result is a vacuum for the more than 50,000 professionals who depend on the Board for their livelihood.

"An officer de facto is one who exercises the powers and discharges the functions of an office, being then in possession of the same under color of authority, [even] without actual right thereto." Adams v. Mississippi State Bank, 23 So. 395, 398 (Miss. 1897). "[A]ppointment by the Governor [is] certainly color of title and of authority." Upchurch v. City of Oxford, 17 So. 2d 204, 205 (Miss. 1944); see also Barton v. Barton, 726 So. 2d 163, 166 (Miss. 1998) ("A de facto [officer] can retain his color of authority as long as he has some claim to his position. One such claim of right comes through appointment."). De facto officers have valid authority to act in an official capacity. Mississippi Real Estate Appraiser Licensing and Certification Board v. Schroeder, 980 So. 2d 275, 289 (Miss. Ct. App. 2007). The acts of de facto officers are valid and binding. Miss. Code Ann. § 25-1-37. Further, "[a]ny challenge regarding the validity of actor's appointment must be brought against the actor in proceedings contesting the right to office." Nelson v. State, 626 So. 2d 121, 125 (Miss. 1993).

Clearly the law has recognized the viability of the actions taken by individuals serving in an official capacity even though, as here, the Senate has not yet confirmed those appointments. The existence of de facto officers who act in an official capacity and whose acts are valid and binding is evidence of the public policy purposes that underlie Section 25-1-37. See 43 Am. Jur. Public Officers § 495, at 242 (1942) (stating that "[t]he principle is placed on the high ground of public policy, and for the protection of those having official business to transact, and to prevent a failure of public justice.").

Any appointments by the Governor in this instance would not involve the usurpation of another's right to hold office, nor does it reflect any other unlawful claim to office. In this unique and limited circumstance where two previously existing boards have been eliminated, and there is no current board to perform the statutory responsibilities, the Governor's appointments have the lawful right to serve until the Senate confirms, and during that time, their acts are valid and binding. Moreover, in this circumstance, we have not found any legal authority holding that these appointments are not lawful.

In response to your second question, we are unable to opine upon matters of liability, which involve mixed issues of law and fact. Section 7-5-25 authorizes our office to opine upon prospective matters of state law only. MS AG Op., Head at *1 (Nov. 25, 1998).

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/ Misty Monroe
Misty Monroe
Assistant Attorney General

The Governor also has the authority to "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." Miss. Code Ann. § 7-1-37.