Untitled Texas Attorney General Opinion ( 1971 )

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Honorable Preston Smith Opinion No. M-901
Governor of Texas
State Capitol Re: Term of office of members of
Austin, Texas 78711 the ,TexasBoard of Llcensure
for Nursing Home Administrators.
Dear Governor Smith:
Your requestfor an opinion on the above subject matter
asks the following question:
?a an appointee, whose term of office on
the board has not expired as of the effective
date of House Bill No, 1756, entitled to hold
his position until his term expires, or does
the bill authorize the Governor to make six
appointments without regard to the status of
the present appointee?"
The Texas Board of Llcensure for Nursing Home Admini-
strators was created by Acts of the 6lst Legislature, Regular
Session, 1969 (Ch. 411, p.1356 being S.B. 388, codified as Article
&442d, Vernon's Civil Statu,ies). Subdivision 4 of Section 3 of
said Act provided:
"(4) Initial appointments to the board shall
be as follows: three ( ) members for a term of
three (3) years; three 3 members for a term of
two 2 years, and one 11 1 member for a term of
one II
1 year, and thereafter the terms of all
appointed members shall be for three years unless
the appointment is for an unexpired term only.
Vacancies on the board shall be filled in like
manner as Initial appointments are made."
It was held In Attorney General's Opinion M-504 (1969):
"Subdivision 4 of Section 3 of Senate Bill
388 does not comply with Section 80a of Article
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Honorable Preston Smith, page 2 (M-901)
XVI of the Constitution of Texas and since the
terms fixed by Subdivision 4 are not authorized
by any other constitutional provision such sub-
division is void insofar as the term of office
specified therein exceeds two (2) years, Attorney
General's Opinion ~-463.
If
. . .
"It also follows that members of the Texas
Board of Licensure for Nursing Home Administrators
appointed pursuant to the provisions of Senate Bill
388 are appointed for a two-year term except for
the initial appointment. The initial appointment
will be for terms of office as provided in Subsection
4 of Section 3 of Senate Bill 388 insofar as the
terms of office of the initial appointments do not
exceed two years. Six members therefore will be
initially appointed for a term of two years and one
member will be appointed for a term of one year.
Thereafter all members will be appointed for terms
of two yea;s unless the appointment is an unexpired
term only.
House Bill 1756, Acts of the 62nd Legislature, Regular
Session, 1971, amended subdivision 4, supra, to read as follows:
"(4) Appointed members of the board serve
staggered terms of six (6) years with the terms
of two (2) members expiring on January 31 of
each odd-numbered year. In making the initial
~;~ointments, the Governor shall designate two
members for terms expiring in 1973, two 2
members for terms expiring in 1975, and two I2 1
members for terms expiring in 1977. Vacancies
on the board shall be filled by appointment for
the unexpired portion of the term.
Section 30 of Article XVI of the Constitution of Texas
provides that the duration of all offices not fixed by this Con-
stitution shall never exceed two years. Section 30a of Article
XVI of the Constitution of Texas provides:
"The Legislature may provide by law that
the members of the Board of Regents of the State
University and boards of trustees or managers of
the educational, eleemosynary, and penal institu-
tions of the State, and such boards as have been
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Honorable Preston Smith, page 3 (M-901)
or may hereafter be established by law, may hold
their respective offices for the term of six (b)
years, one-third of the members of such boards
to be elected or appointed every two (2) years in
such manner as the Legislature may determine;
vacancies In such offices to be filled as may be
provided by law, and the Legislature shall enact
suitable laws to give effect to this section."
(Emphasis added.)
It Is noted that the term of office prescribed by the
amendment contained in House Bill 1756, supra, complies with
Section 30a of Article XVI , and therefore the terms of office
of appointed members of the board are staggered terms of six
(6) years; two for terms expiring January 31, 1973, two for terms
expiring January 31, 1975, and two for terms expiring January 31,
1977.
In addition to changing the terms of office of the ap-
pointed ,members of the board, House Bill 1756 reduced the member-
ship of the board to six (6) appointed members and two (2) ex
officio members. Furthermore, House Bill 1756 contains no hold-
over provision with respect to the present membership of the board.
Since House Bill 1756 does not provide that any member or members
of the board shall retain his membership, and in view of the fact
that the membership is reduced and the term of offlce of all ap-
pointed members is changed, it is our opinion that House Bill
1756 terminates the terms of office of the present appointed
members to the board.
Pursuant to subdivision 4 as amended by House Bill 1756,
the Governor is authorized to make six (6) appointments to the board
pursuant to its provisions. In making such initial appointments
the Governor shall designate two (2) members for terms expiring
January 31, 1973 two (2) members for terms expiring January 31,
1975, and two (21 members for terms expiring January 31, 1977.
SUMMARY
Pursuant to the provisions of House Bill 1756,
62nd Legislature, Regular Session, 1971, the Governor
is authorized to make six (6) appointments to the
Texas Board of Licensure for Nursing Home Adminis-
trators. In making such initial appointments, the
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Honorable Preston Smith, page 4 (M-901)
Governor shall designate two (2) members for
terms expiring January 31, 1973, two (2) members
for terms expiring January 31, 1975, and two (2)
members for terms anuary 31, 1977.
very truly,
Prepared by John Reeves
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
W. E. Allen, Co-Chairman
Ivan Williams
Sig Aronson
James Quick
Ben Harrison
MEADE F. GRIFFIN
Staff Legal Assistant
ALFRED WALKER
Executive Assistant
NOLA WHITE
First Assistant
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