Untitled Texas Attorney General Opinion ( 1977 )

The Honorable Ron Jackson Opinion No. H-955
Executive Director
Texas Youth Council Re: Voting privileges
P. 0. Box 9999 and term of office of
Austin, Texas 78766 chairman of Texas Youth
Council.
Dear Mr. Jackson:
You have requested our opinion on the following questions:
1. May the Texas Youth Council limit
or restrict in any way the voting
privileges of the presiding officer
who has been selected by the Board?
2. Did the Texas Youth Council in its
election of a presiding officer on
November 20, 1975, elect that officer
for a specific term of years where no
reference was made to specific term of
years at the time of her election?
3. In the event that your answer to
question number 2 is that such term is for
a specific term of years more than one
year, may the Texas Youth Council Board by
simple majority of a quorum alter the term
of its presiding officer after the election
of such presiding officer?
4. May the Texas Youth Council at this
time adopt rules or by-laws which have the
effect of limiting the next chairman to a
one year term with the qualification that
such chairman may be reelected for an
additional one year term and that an
individual serving as chairman may not
serve more than two successive one year
terms?
P. 3985
The Honorable Ron Jackson - page 2 (H-955)
The Texas Youth Council is created by article 5143d,
V.T.C.S., to administer the State's correctional facilities
for delinquent children and to provide programs of rehabilita-
tion. The Council consists of six members appointed by the
Governor with the consent of the Senate. Id. § 4(a). The
chairman of the Council is a member of that body, and is
elected chairman by its members. Id. §§ 4(d), 5. As a
member of the Council, the chairmans entitled to vote on
matters before that body. Herring v. City of Mexia, 290
S.W. 792 (Tex. Civ. App. -- Waco 19=, writ refm Attorney
General Opinions WW-620 (1959); O-1716 (1939). The Council
may not limit or restrict the voting privileges of its
chairman.
The term of the chairman of the Texas Youth Council
is not set by statute. You have provided us with a copy
of the minutes of the May 29, 1959, meeting of the Youth
Council. That document records the actions of the Council
on that date, including the following:
The motion was made, seconded and
unanimously carried that a Chairman be
elected in accordance with the provisions
of Article 5143d, Section 4(a) and Section
5(a) -- the term of office to be for a two
year period after which the office of
Chairman will be rotated in a manner
similar to that used by some other state
boards and agencies. This action was
taken to provide a replacement in the office
of Chairman which was vacated by the
resignation of Mr. Frank M. Wilson.
The motion was made, seconded and
unanimously carried that Mr. W. C. Windsor, Jr.
be elected Chairman for a two year period
beginning this date.
You indicate that this represents the most recent formal
action of the Council relative to the term of office of
its chairman. More recent minutes indicate, however, that the
biennial election of a chairman has occurred at various times
within odd-numbered years. The current chairman was elected
on November 20, 1975.
p. 3986
I .
The Honorable Ron Jackson - page 3 (H-955)
The duration of various terms of office was discussed
at length in Attorney General Opinion M-338 (1969). That
opinion stated general rules for determining the commence-
ment date for terms of office in the absence of legislation:
(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 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.
(2) In instances where the enactment creates
a single position and does not provide for a
definite beginning date for the commencement
of the term of office, the term begins on
the date of appointment of the initial appointee
to such position, and thereafter such date will
govern the commencement date of subsequent terms
of office in such position. -Id. at 11.
In the absence of Board action establishing a definite term,
we believe that the chairmanship of the Council is subject
to the second rule stated above. Accordingly, the commence-
ment date of the term of office of the chairman is May 29.
It is our opinion that the term of the present chairman
will run until the commencement of the next term, on May 29,
1977. While the present chairman did not assume that position
until November 1975, the term which she is serving began
on May 29, 1975.
In order to avoid confusion, a clear
distinction must be made between the
phrase, 'term of office V and an individual's
tenure of office. The period of time designated
as a term of office may not and often does not
coincide with an individual's tenure of office.
Spears -
v. Davis, 398 S.W.2d 921, 926 (Tex. 1966).
P. 3987
. ..
The Honorable Ron Jackson - page 4 (H-955)
Your third and fourth questions inquire whether the
Council may reduce the term of its presiding officer, and
whether such a change may apply to the term of the present
chairman. We believe that, absent legislative direction,
the Council may reduce the term of its chairman, and may
restrict the number of successive terms an individual may
serve as chairman. See Kennon v. Schlesinger, 182 S.W.2d
373 (Tex. Civ. App. -- San Antoxo 1944, writ ref'd w.0.m.).
We likewise believe the Council, absent legislative direction,
may make any reduction of the term of chairman applicable to
the current term. Popham v. Patterson, 51 S.W.2d 680 (Tex.
1932); McIner
670 (N.~A~.~2~p~",tv~5``'v'8W``~;,13~8~1````~d
Kennon v. SC esinger
[T]he legislative power of a State,
except so far as restrained by its own
constitution, is at all times absolute
with respect to all offices within its
reach. It may at pleasure create or
abolish them, or modify their duties.
It mav also shorten or lengthen the term of
(1879).-
The term of the chairman of the Texas Youth Council
is not set by the Constitution, cf. McGuire v. Hughes,
452 S.W.2d 29 (Tex. Civ. App. --Dallas 1970,no writ);
Attorney General Opinions H-564 (1975); H-220 (1974), nor
by statute. Rather, the term was set by resolution of
the Council itself, and the Council may now alter the term
it has previously set by a similar resolution Of equal
solemnity and effect. Kennon - v. Schlesinger, supra.
SUMMARY
The chairman of the Texas Youth
Council is a member of the Council
entitled to vote on matters before the
body, and the Council may not limit or
restrict the voting privileges of the
chairman. The Council has heretofore set
P. 3988
The Honorable Ron Jackson - page 5 (H-955)
the term of office of its chairman at
two years, commencing on May 29 of odd-
numbered years, and may likewise reduce
the chairman's term of office.
Very truly yours,
JiLzGG&``
Attorney General of Texas
APPROVED: v
Opinion Committee
jwb
P. 3989