Untitled Texas Attorney General Opinion ( 1981 )

The Attorney General of Texas
June 9, 1981
MARK WHITE
Attorney General
Mr. Don R. Stiles Opinion No. ``-355
Executive Director
Texas Adult Probation Commission Re: Term of office of members of
P. 0. Box 12427 Texas Adult Probation Commission
812 San Antonio, Suite 400
Austin, Texas 78711
Dear Mr. Stiles:
Senate Bill No. 39, which became law in 1977, created the Texas Adult
Probation Commission. Acts 1977, 65th Leg., ch. 343, !3l, at 910. See Code
Grim. Proc. ‘art. 42.121. Section 2.02 of article 42.121 provides that:-
The commission shall consist of three judges of the
district courts of Texas and two citizens of Texas who
are not employed in the criminal justice system to be
appointed by the Chief Justice of the Supreme Court
of Texas and three judges of the district courts of
Texas and one citizen of Texas not employed in the
criminal justice system to be appointed by the
presiding judge of the Texas Court of Criminal
Appeak.
Section 2.03 provides that:
(a) The first members appointed to the Board shall
serve terms of two, four, and six years respectively,
and until their successors are appointed. Thereafter
each member shall serve for six years.
(b) The appointing authority shall draw lots to
determine which members serve two, four, and six-
year terms.
The first meeting of the commission was called in September, 1977, ss
required by section 2.06faX
You have requested our opinion regarding these questions:
p. 1179
Don R. Stiles - page 2 @w-355)
1. When do the terms of the first and succeeding
commission members begin and end?
2. Do the succeeding members of the commission serve
until their successors are appointed?
Section 2 of Senate Bill No. 39 amended article 42.12 of the Code of Criminal
Procedure. Section 3 of the bill provided that:
Section 4.05 of Article 42.121, Code of Criminal Procedure,
1965, as amended, and Section 2 of this Act take effect on
September 1, 1978.
Thus, section 4.05 of article 42.121 and the amendments to section 10 of article 42.12
took effect on September 1, 1978. The remaining sections of article 42.121, including
sections 2.02 and 2.03, took effect on June 10, 1977, the effective date of the act.
In Attorney General Opinion M-338 (1969), this office observed that authorities
have generally held that, in determining the commencement date of the term of
office of a member of a commission created by a statute, when the statute is silent
as to said date, two dates are to be considered: the date of first appointment to the
office, and the effective date of the statute creating the office. See also Attorney
General Opinion O-3584 (1941). The opinion cited cases holding that when the duration
of a term of office is subject to doubt, the interpretation which would limit such term
to the shortest time should be followed. It then stated that:
[Ii t would appear that a. . . commission. . . created by a. . .
statutory enactment. . . would come into existence on the
effective date of the. . . enactment. . . [II t would likewise seem
to follow that any appointive positions upon a. . .
commission. . . would come into existence on the effective
date of the.. . enactment. . . unless otherwise provided. While
there may be vacancies existing in positions on the. . .
. .
commm.sioIIs. . . if the appointing power does not make the
appointments on the effective date of enactment or provision
creating the position, this would not of itself seem to affect the
time at which the term of office commenced. . .
After reviewing prior Attorney General Opinions and cases which reached conflicting
conclusions regarding the question of whether the date of first appointment or the
effective date of an enactment is controlling, the opinion concluded that:
(1) In situations where the enactment creating boards, agencies,
commissions and committees provides for a multi-member
board with staggered terms of office, it appears that the
legislature, in the absence of anything to the contrary,
intended that the commencement date of the term of office of
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Don R. Stiles - page 3 (``-355)
such appointive positions will be the effective date of the
enactment creating such position. This was so held in
Attorney General’s Opinion No. M-296 (1968) and that Opinion
is reaffirmed in this connection.
Prior Attorney General Opinions in conflict with this holding were overruled. See also
Attorney General Opinion H-955 (1977). Compare Spears v. Davis, 398 S.W.2d 921
(Tex. 1966). (Case discussed and distinguished in Attorney General Opinion N-338).
The Texas Adult Probation Commission is governed by a multi-membered board
with staggered terms of office. Accordingly, absent any indication that the legislature
intended otherwise, we conclude that the commencement date of the terms of office
of the initial appointees to the commission was June 10, 1977.
Your first and second questions ako refer to the terms of office of succeeding
appointees. The answer to the question of when their terms commence depends upon
the effect of that portion of section 2.03. in article 42.121 which states;‘The first
members appointed. . . shallserve. . . until their successors are appointed. Thereafter
each member shall serve for six years.” (Emphask added). We must determine
whether the legislature intended for the underlined language to apply only to the first
appointees.
We answer this question in the negative. We believe that the legislature intended
that each appointee to the commission would serve until his successor was appointed,
even though such appointment might not have been made by the time that the
successor’s term of office commences. In this connection, we refer to the following
statement in Attorney General Opinion M-338, which was taken from 67 C.J.S.
Officers section 50:
‘Since the term of an office is distinct from the tenure of an
officer, “the term of office” is not affected by the holding over
of an incumbent beyond the expiration of the term for which he
was appointed; and a holding over does not change the length of
the term, but merely shortens the term of his successor.’
See also Spears v. Davis, 398 S.W.2d 921 (Tex. 1966). Based upon this quotation,
Attorney General Opinion M-338 concluded that:
The fact that an appointment was not made on the
commencement date of the term of office would not change the
length of the term, but it would merely shorten the length of
time that the individual so appointed could serve in the position.
In light of the foregoing discussion, we conclude that the terms of office of the
first appointees to the Texas Adult Probation Commission commenced on June 10, 1977.
p. 1181
Don R. Stiles - page 4 (``-355)
The terms of office of the next succeeding commission members commenced, or will
commence, two, four, and six years after that date, and will extend for six years. Both
initial and succeeding appointees serve until their successors are appointed.
SUMMARY
Under article 42.121, Code of Criminal Procedure, the terms
of office of the initial appointees to the Texas Adult Probation
Commission commenced on June 10, 1977. The terms of office
of the next succeeding appointees commenced, or will
commence, two, four, and six years after that date, and extend
for six years. Both initial and succeeding appointees serve until
their successors are appointed.
Very truly yours,
MARK WHITE
Attorney General of Texas
JOHN W. FAINTER, JR.
First Assistant Attorney General
RICHARD E. GRAY III
Executive Assistant Attorney General
Prepared by Jon Bible
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Susan L. Garrison, Chairman
Jon Bible
Rick Gilpin
Barton Boling
Bruce Youngblood
p. 1182