Untitled Texas Attorney General Opinion ( 1975 )

February 19. 1975
The Honorable Dolph Briscoe Opinion No. H- 534
Governor of Texas
State Capitol Re: Length of term of members
Austin, Texas 78711 of the Board of Nurse Examiners.
Dear Governor Briscoe:
You have requested our opinion regarding the construction of article
4513, V. T. C. S., which provides for the appointment of a Board of Nurse
Examiners. The statute authorizes the Governor to:
. . . bienniallv appoint a Board of Nurse Examiners
to consistof six members. and the term of office of
those so appointed shall be two for six years; two for
four vears; and two for two vears. The terms of ’
office for members of the Board shall expire on
January 31 of odd-numbered years, Each member
of said Board shall be a registered nurse at least
twenty-five years of age, of good moral character and
a graduate of an accredited school of professional
nursing, and three members shall have at least three
years’ teaching experience in educational work among
nurses. One of the two personsaFpointed every two
years’ shall be a person with at least three years’
teaching experience in education work among nurses.
As you have indicated, the statute appears to have created a Board
with two members serving for two years; two serving for four years, and
two serving for six years, since the word “initial” or “first” has not b&en
inserted prior to “term of office, ” and since the usual provision that
“members appointed thereafter shall serve for six years” has been omitted.
p. 2408
The Honorable Dolph Briscoe page 2 (H- 534)
However, the language causing the confusion, underlined in the
foregoing quotation, has existed in the statute since 1931 and has never
given rise to any question. Traditionally, Board members have served
six year terms and we must assume the Legislature was cognizant of
that fact when, in 1969, it amended the statute but reenacted the identical
language. In 1969 this office issued Attorney General Opinion M-433
finding that the 1969 amendment did not abolish the old Board and that its
members should continue in office until the expiration of the terms for
which they were appointed. In addition, the language of the statute which
provides that “one of the two persons appointed every two years shall be
a person with at least three years’ teaching experience in education work
among nurses” is rendered meaningless unless the statute is interpreted
to provide for six-year terms, with two persons appointed every two
years.
This conclusion is buttressed by considering the constitutional
difficulty that arises if the alternative construction is adopted. Article
16, section 30a, of the Texas Constitution authorizes the Legislature
to establish six-year terms for members of “boards . . . established
by law. ” Article 16, section 30, provides that “[t]he duration of all offices
not fixed by this Constitution shall never exceed two years. ” If article
4513 is interpreted as creating a Board to which two members are
appointed for four-year terms, it is clearly violative of the constitutiona
directive, which proscribes any term of office whose duration is more
than two but less than six years.
It is an established principle that when a statute is susceptible
to more than one construction, one which would render it constitutional
and the other which would render it invalid, the former must prevail.
Alobaidi v. State, 433 S. W. 2d 440 (Tex. Grim. App. 1968), cert. denied,
393 U.S. 943; Newsom v. State, 372 S. W. 2d 681 (Tex. Grim. App. 1963);
Amaimo v. Carter, 212 S. W. 2d 950 (Tex. Civ. App. --Beaumont 1948,
writ ref., n. r. e.). We therefore hold that the 1969 revision of article
4513 did not alter the term of office of the members of the Board of Nurse
Examiners, and that term is for six years.
p. 2409
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The Honorable Dolph Briscoe page 3 (H- 534)
SUMMARY
Under article 4513, V. T. C. S., each member
of the Board of Nurse Examiners is appointed for
a term of six years.
Very truly yours,
0 Attorney General of Texas
sL b
DAVID M. KENDALL, First Assistant
C. ROBERT HEATH, Chairman
Opinion Committee
p. 2410