Untitled Texas Attorney General Opinion ( 1969 )

Honorable Charles R. Barden Opinion No. M-462
Executive Secretary
Texas Air Control Board Re: Status of ex-officio
1100 West 49th Street members of Tex~as Air
Austin, Texas 78756 Control Board under
Sec. 2.02 of Chapter
273, S.B. 48, page 817
Acts of the 61st Leg.;
effective Se tem-
bR;f’i, 1969; Art. e 477-5,
Dear Mr. Barden: V.C.S.
Your request for an opinion as to whether ex-
officio members of the Texas Air Control Board can sit
and vote as members of the Board after September 1,
1969, has been received.
It is our opinion that the offices of the three
ex-officio members of the Texas Air Control Board who
have previously served under the Clean Air Act of Texas,
1967 (Chapter 727, S.B. 237, page 1941, Acts of ‘the 60th Leg.
Regular Session, 1967) were abolished by the amendatory
revision which became effective September 1, 1969. This
new law abolishes the old Texas Air Control Board and
creates an entirely new Board , six members of which are
appointed by name with a designation by the Texas
Legislature of the new term for each such member. One
of these members, whose term Is described in the new
,revlsionary act, reslgned,(D. 0. Tomlin) and his office
is now vacant. The offices previously held by the
three ax-officio board members are now to be filled by
the Governor pursuant to provlslons.of the amendatory act.
These @x-officio members were described In Section
3 of the 1967 law which is now~repealed as follows:
“(D) In addition to the six members
appointed by the Qovernor as
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Hon. Charles R. Barden, page 2, (M-462)
provided herein, the board shall
also consist of the following
state officers each of whom
shall be an ex-officio member of
said board during the time that
he is serving in such other
official capacity, to wit: the
State Commissioner of Health,
the Executive Director of the
Texas Industrial Commission, and
the Executive Director of the
Texas Animal Health Commission,
each of whom shall perform the
duties required of a member of
the board by this Act, as addition-
al duties of his other office.”
The pertinent parts of Section 1 of Article 4477-5,
Vernon’s Civil Statutes, (Chapter 273 (S.B. 48), page 817,
Acts of the 61st Legislature, Regular Session) effective
September 1, 1969, relating to the new Texas Air Control
Board, read as follows: 3
“Sec. 2.02. The board 1s com-
posed of nine members, chosen
as follows:
“Sec. 2. The six members of the
Texas Air Control Board appoint-
ed or continued in office under
the provisions of Section 3(A)
of Chapter 727, Acts of the 60th
Legislature, Regular Session, 1967
(Article 4477-5, Vernon’s Texas
Civil Statutes), and who are In
office when this Act goes into
effect, shall continue in office
as six of the nine members of the
Texas Air Control Board, as
follows: Herbert C. McKee and
Wendell H. Hamrlck, the presently
serving members appointed to a
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.
Hon. Charles R. Darden, page 3, (M-462)
six-year term in July, 1968,
shall serve for a period ending
September 1, 1973; Clinton H.
Howard and Henry J. LeBlanc, Sr.,
the presently serving members
appointed to a six-year term in
February, 1966, shall serve for
a period ending September 1,
1971; Herbert W. Whltney, the
presently serving member, ap-
pointed to a four-year term In
February, 1966, shall serve
until September 1, 1969; and the
person appointed to fill the
vacancy in the position previous-
ly held by D. 0. Tomlin, who was
appointed in January, 1968, to
serve the balance of a four-year
term which began in August, 1965,
shall serve until September 1,
1969. A person appointed as a
member following the expiration
of the term of office of a
member named In the procedlng
sentence shall serve during a
six-year term as provided In
Section 2.03 of this Act*, The other
governor shall also appoint th
three members of the board, ase I.
rovided in Section 2.02 of this
c e The terms of these three
members shall begin on September
1, lgbo, and one shall be ae-
ointed for a two-year term, one
or a four-year term, and one for
a six-year term. A person appoint-
ed as a member following the ex-
piration of the term of office of
each of these three members shall
serve during a six-year term as
provided In Section 2.03 of this
Act." (emphasis added).
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Hon. Charles R. Barden, page 4, (M-462)
The three @x-officio members of the Texas Air
Control Board (created by the 1967 law) were officers
of the State’because they had tenure, duration and
duties which involved exercise of some portion of the
sovereign power of the State of Texas in regard to
prevention-and abatement of air pollution. -Dunbar v.
Brazoria Count&$Ez ;:W.‘2d 738 (Tex.Civ.App.,
error refuse-~,. ``~ Johnson, 141 S.W.2d 698 (Tex.
Civ.App., 1940, error rei “us 47 Tex.Jur.2d 12,
Public Officers, Sec. 2.
There is nothing in the 1969 language of the
Texas Clean Air Act which saves or preserves the ex-
officio offices of the Texas Air Control Board. These
offices are abolished and those new offices created by
Sec. 2.02, which the Legislature did not appoint by
name, must be filled by the Qovernor of Texas. The
former members, sitting in the capacity of ex-officio
members, are not now eligible to sit or to vote; for
since the earliest times in Texas, when the office
ceases to exist, the right necessarily ceases with it.
Anson Jones v. Shaw & Swisher, 15 Texas 577 (1855).
This rule is well stated in 47 Tex.Jur.ed, 80, Public
Officers, Sec. 55, which reads as follows:
“Where an office is abolished all the
rights appertaining to it necessarily
cease. The incumbent is ousted though
the term for which he was elected or
appointed has not expired. He ceases
to be an officer and can have no
successor; and the constitutional pro-
vision requiring officers to continue
to perform the duties of their offices
until their successors shall qualify
does not apply to him where the duties
of the abolished office are devolved
on some other office ..,. the only duty
then remaining for him to perform is to
turn over all official books, papers and
property in his possession...”
The offices of ex-officio members have been
abolished under the amended statute, which operates to
take the place of the prior section providing for ex-
officio members. 53 Tex.Jr.2d 136, Statutes, Sec. 90;
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Hon. Charles R. Darden, page 5, (M-462)
82 C.J.S. 411, Statutes, Sec. 243; Attorney General Opn.
c-454 (1965).
It is not intended by this opinion to preclude
the posalbility of appointment by the Qovernor of the
individuals who previously occupied the offices as ex-
officio members, providing, of course, that they are
eligible and qualified to hold one of the new offices
created by the statute, subject to the provisions of ,.
Article 6252~ga, Vernon's Civil Statutes.
SUMMARY
The office of ex-officio member
of the old Texas Air Control
Board has been abolished by the
Texas Clean Air Act, which became
effective September 1, 1969. Ex-
officio members whose offices are
now abolished cannot sit or vote
as such holdover board members.
Prepared by Roger Tyler
Assistant Attorney General
APPROVED:
OPINIONCOMMITTEE
Kerns Taylor, Chairman
George Kelton, Co-Chairman
Houghton Drownlee, Jr.
John Grace
Scott Garrison
Sarah E. Phillips
MRADEF. GRIFFIN
Staff Legal Assistant
RAWTHORRE PHILLIPS
Executive Assistant
NOLAWRITS
~:First Assistant
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