Untitled Texas Attorney General Opinion ( 1939 )

HonorableL. J. Wardlaw,Commissioner
LivestockSanitaryCommission
2005 W. T. WaggonerBuilding
Fort Worth, Texas
Dear Sir: opinionHo. O-1210
Re: Chairmanshipof Livestock
SanitaryCommission
We acknowledgereceiptof your letter of July 31, 1939, in
which you requestan opinionof this Departmenton the questionof whether
or not the Governorof Texas has the authorityto appointa Chairmanof
the LivestockSanitaryCommissionto supersedethe Chairmanappointed
by a previousGovernorfor a term of office of six years, only two of
which have expired.
The followingstatementof the fact situationis condensed
from your letter,and we state It here as the basis upon which this opin-
ion will be rendered. On February24, 1937, GovernorJames V. Allred,
by virtue of the authoritygrantedhim under Article7009, RevisedCivil
Statutesof 1925, as amendedby Chapter131, Acts of the 45th Legisla-
ture, appointedL. J. Wardlaw as a member of the LiveetockSanitaryCom-
missionand designatedhim as Chairmanof the Commieaion. This appoint-
ment was for a term of six years. The other two appointeesto the Com-
missionwere Roy Jacksonfor a term of two years,and R. H. Martin for
a term of four years. Said Roy Jackson'sterm of officeexpiredon May
21, 1939, thereafterGovernorW. Lee O'DanielappointedRoy Loventhal
as a member of the Commissionto serve for a period of six years, and
named Mr. LoventhalChairmanof the Commission. Thus the question
arisesas to whetherthe Chairmanof the LivestockSanitaryCO~iSBiOn
is L. J. Wardlaw or Roy Loventhal,and that issue appearsto be the only
one which this Departmentis calledupon, at this time, to answer.
We have examinedthe authoritieesubmittedin your brief and
we agree with you in the followingconclusionsof law:
1. When the Governor'sappointmentis dependentupon concur-
rence of the Legislature,an officercannotbe removedsummarilyby the
Governor.
2. When an office is createdfor a definiteterm; the appointee
can only be removedfor cause establishedby court decree.
- .
HonorableL. J. Wardlaw,page 2 (O-1210)
3. An office is not propertywithin the constitutional
pro-
vision8againstdeprivingpersonsof property.
4. The expirationof EZIIncumbent'eterm of office creates
a vacancy.
It is well settledthat an officerwho holds his office for
a term fixed by law cannotbe removedat the pleasureof the executive
and that an appointeeholdingan officeunder such conditionscan only
be removedfor cause establishedat a hearingat which he is given defi-
nite notice and ample opportunityto appear and presenthis defense.
See Upshaw YE. Booth, 37 Tex. 126; Ridgewayvs. City of Fort Worth, 243
9. W. 745, and authoritiesthereincited;Dorenfieldvs. State,73 S. W.
(2~3)86; Honey vs. Graham,39 Tex. 11.
On January21, 1933, in an opiniondirectedto HonorableWill
1. Martin,Chairmanof the SenateCommitteeon Eominationsof the Gov-
ernor,AttorneyGeneralJEIEB V. Allred held that neitherthe Governor
nor eny of his successorshad any power over an appointmentonce been
made and submittedto the Senatefor approvalunless such power was ex-
ercisedwith Senatorialacquiescence.In this connection,AttorneyGen-
eral Allred said: "The executivepower investedin the Governoris con-
tinuousand knows neithernames, persons,or terms of office."
Article7009, RevisedCivil Statutesof 1925, as amendedby
Acts of 1937, 45th Legislature,p. 253, Ch. 131, reads as follows:
"The Governor shall withinthirty (30) days after
this Act becomes effectiveby, and with the advice and
consentof the Senateappointthree (3) citizensof the
State, as a Live Stock SanitaryCommissionof the State
of Texas. The Governorshall designateone such member
as a Chai-. Each commissionershall give a bond pay-
able to the State of Texas in the sum of Ten Thousand
Dollars ($10,000)to be approvedby the Comptroller.
Each Commissionershallbe a bona fide residentof and a
practicallive stock raiser in the communityfrom which
he may be appointed,and shall have been activelyen-
gaged in said businessfor at least five (5) years next
precedingthe date of hiB appointment. One of eaid Com-
missionersshallbe appointedfrom the West, one from
the South; snd one from the Easternportionof Texas.
The word 'Commission' as used in this Chapter shall mean
the Live Stock SanitaryCommissionof the State of Texas.
That beginningwith the appointmentof said Commissioners,
the term of office of the membersof the Commissionshall
be for a period of six (6) years, exceptthat those first
appointedshall be appointedfor two (2), four (h), and
six (6) years, and that they shall serve until their
.. -
HonorableL. J. Wardlaw,page 3 (O-1210)
successorshave been appointedand have duly qualified.
All vacancieswhich shall occur in the Commissionfor any
reason shallbe filled in the same manner as hereinbefore
providedand shallbe for the unexpiredterm."
Under the provisionsof this Article It cannotbe disputed
that the Governorhas no power to remove a commiseioneronce he has been
appointedand approvedby the Senate. It will be noted, however,that
this Article does not providethat the Governorshall appointa Chair-
mau of the Commissionand two Commissioners.The only expressionrela-
tive to the Chairmanshipof the LivestockSanitaryCommissionis the
statementthat "the Governorshall designateone such member as Chair-
IJBU.
" After all appointmentsto the Commissionhave been made and ap-
provedby the Senate the Governormay then designateone member of the
Commissionas Chairmanand such designationdoes not requirethe advice
and consent0r the Senate. Virtuallythe same provisionis found in
Article6664, relatingto the appointmentof the State HighwayCommis-
sion. The customand establishedpracticewith referenceto the desig-
nation of the Chairmanof the HighwayCommissionhas been to recognize
the sole and unrestrictedpower of the Governor.
In your brief you cite the case of Tennysonvs. State, 6 S. W.
(2d) 1021, as authorityfor the statementthat a vacancyin an office
exists for the purposeof making a new appointmentupon the expiration
of the incumbent'sterm. The law as reflectedby this opinionis undis-
puted but the absoluteprerequisiteto euch a holdingis the existence
of a definiteterm of office. In the absenceof constitutional or Statu-
tory restraint,the power to appointan officercarrieswith it as an
incidentalpower the right to remove the appointeeat will. Where the
durationor term of office la not fixed by law and no provisionla made
for the removalof the incumbentthe power of appointmentnecessarily
carrieswith it the power of removal. See 34 Tex. Jur. 394, para. 42;
Keenanvs. Perry, 24 Tex. 253; Weeper vs. Stewart,66 S. W. (2d) 812.
The followingstatementis from 46 Corpus Jurie p. 964, paragraph98:
"Wherethe term of office is not fixed by law, the
officeris regardedas holdingat the will of the appoint-
ing power,even though the appointingpower attemptsto
fix a definiteterm; and an officerremovableat the pleas-
ure of the appointingpower has, in the strictmeaning of
the word, no 'term'of office. A constitutional provision
that terms of officenot fixed by the constitutionshall
not exceeda~specifiedtime does not enlargethe duration
of an office'heldat the pleasureof the executive."
We cite the followingcases in supportof the generalrule
above quoted: Touart VS. State, 56 So. 211, Ala. Sup. Ct; Greenevs.
Owen, 34 6. E. 424, A. CarolinaSup. Ct.; Child6 vs. State, 33 L.R.A.
563, Okla. Ct. of CriminalAppeals;Wright vs. Gamble,35 L.R.A.866,
GeorgiaSup. Ct.; Quernheinevs. Asselmeier,et al, 129 Ii.E. 828, Ill.
sup. ct.
HonorableL. J. Wardlaw,page 4 (O-1210)
As we have alreadypointedout Article7009 does not m-
qnlrethatthe Senateapprorethe Govemor'n dmigrrationof the Chairman
of the Livestock SanitaryCormmisrion.The Iaglrlaturehse by the provi-
aianclof thie Articlegiyen to the Governorthe Bole power of appointmt.
lo attemptis made to providefor the method of removalof euch chairpan
nor does any provisionappear fixingthe term of office of the Chaim
of the Liveatock.Sanitary ConUseion. It is the opinionof this Depart-
ment that the power to deeignatethe Chairmanof the LivestockSanitary
Colmaission of Texas lies solelywithinthe provinceof the Governorand
can be exercisedat wil& wlthoutthe advice and consentof the Senate
and withoutregardto previousdesignationsmade by anotherGovernor.
Yours very truly
ATTORNEYGEXERALOFTEXAS
By /s/ Ross Carlton
Ross Carlton
Assistant
RC:B:IM
AppRovEDm 13, 1939
/s/ GeraldC. Mann
ATTomEY GEXEML OF TEKAS
APPROVED
OPINION
COI-M~EE
BY /s/ B.W.B.
CHAlRMAH
O.K.
QlL
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