DocketNumber: M-371
Judges: Crawford Martin
Filed Date: 7/2/1969
Status: Precedential
Modified Date: 2/18/2017
. . THE ATJXBRNEY GENERAL OF TEXAS Honorable Preston Smith Opinion No. M-371 Governor, State of Texas State Capitol Building Austin, Texas 78713. Re: Term of office of the members of the Board of Regents of The University Dear Governor Smith: of Texas. Your request for an opinion from this office poses the following questions: "1* The calendar date on which terms of office of members of the Board of Regents of The University of Texas commence and terminate. "2D Did my predecessor in office have the power and authority to appoint Frank C. Erwin, Jr., Dan Williams, and Jenkins Garrett as members of the Board of!~Regentsof The University of Texas for six-year te93 Tex. 309 ,55 S.W. 120, held that terms of office for more than two years violated the provision8 of Section 30 of Article XVI of the Constitution of Texas. From the facts furnished this office by you, after the decision in Kimbroush v. Barnett, m, the entire membership of the Board of Regents was appointed every two years. In 1912, Section 30a of Article XVI of the Constitution of Texas was adopted and it provides as follows: "The Legislature may provide by law that the members of the Boardsof Regents of the State University and boards of trustees or managers of the educational, eleemosynary, and penal institutions of the State, and such boards as have been, or may hereafter be established by law, may hold their respective offices for the term of six (6) years, one-third of the members of such board@ to bs elected or aooointed everv two (2) vears in such manner as the Legislature mav determinq: 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," (Rmphasis added.) Pursuant to Section 30a the Legialature in 1913 enacted Senate Bill 203, Acts of the 33rd Legislature, Regular Session, Chapter 103, page 191, which provides, in part, as follows: "Sec. 2. The members of the governing board of eac,hof the State institutions of higher education mentioned in Section 1 shall be selected from different portions of the State, and shall be nominated by the, Governor and appointed by and with the advice and consent of the Senate, In event of a vacancv on said board. the Governor shall fill said vacancv until the convening of the Leqislature and the ratification bv the Senate. The members of each of said boards who shall be in office at the time this Act takes effect shall continue to exercise their duties until the expiration of their respective terms, gs shall be determined accordinq to requirements of Section 3 of this Act, and additional members shall be appointed Jn the manner prescribed herein to fill out the membership -1831- . . (. Ron. Preston Smith, Page 4 (M-371) herein prwided for. "Sec. 3. The following members of the several governing boards shall be divided into equal classes,, numbered one, two and three, as determined by each board at its first meeting after this Act shall become a law, these classes shall hold their offices two, four and six years respectively, from the time of their appointment, And one-third of the membersh& of each board shall hereafter be aovointed at each resular session of the Leaislature to supply the vacancies made by the provisions of this Act and in the manner provided for in Section 2, who shall hold their offices for six years, respectively. The duties of the several governing boards shall be determined by law heretofore enacted or that may hereafter be enacted, no changes in the said duties being made by this Act." (Bm@haais added,) Senate Bill 203, Acts of the 33rd Legislature, Regular Session, 1913, was codified in the 1925 revision as Articles 2584 and 2907, /. Article 2584 reads as follows: "The government of the University of Texas &all be v@ated in a Board of Regents composed of nine per- sons. They shall elect a chairman from their number who shall serve at the pleasure of the board, The State Treasurer &all be the treasurer of the University. The board shall have the right to make and use a common seal and may alter the same at pleasure," Article 2907 reads as follows: "Each member of the governing board of the aivereity of Texas, the Agricultural and Mechanical College, of the normal colleges, and of the College of Industrial Arts, shall be a qualified voter, and shall be selected from different portions of the State, One-third of the membership of each such board shall be biennially nominated by the Gwernar and appointed by and with the advice and consent of the Senate, -1832s . Pr;ston smith, page 5 (M-371) Horn.. and shall hold their office% for six years, respectively." Section 2 of the Final Title to the 1925 revision contain% a repealing clause reading as follars: "Sec. 2. Repealing Clause. - That all civil statutes of a general nature, in force when the Revised Statutes take effect, and which are not included herein, or which are not hereby expressly continued in force, ar.ehereby repealed." In construing the effect of revisions, the Court ,in American Indenmitv Co.. v. Citv of Austin, 112 Tax. 239, 246. S.W. 1019 (1923) held: "Section 43 having given the Legislature authority to revise the laws, without, within itself or by any other section of the Constitution, having prescribed the method of revision or without having limited the legiolative power, except in so far a% thi% power is linritedin the enactment of any other law, the Legislature has plenary authority to revi%e, and may do so in its own way and to any extent, pro- vided, always, the substance of the propo%ed revieion i% not otherwise prohibited by the Con%titution. It may do so by omitting laws from the,Code, which, when done, under the regaling clause, are repealed. ,'~It may do so by changing words or phrase8 for ,the purpoee' of harmony or brevity, without in fact changing the meping, or it may do so by the incorporation of new and material matter in the revision. The term 'revise' ia broad enough to permit the amendment of existing law% or statutes in these several w~y%~" !' Since the 1925 revision (with regard to terms of office for merabersof the Board of Regents) merely states that one- third-f the membership shall be biennially appointed by the Govern& and appointed by and with the advice and consent of the Senate and shall hold their offices for six years respectively, it is necessary that thie office first determine whether the 1925 revision changed the terms of office of the membership of the Board of Regents of the University of Texas.. We think -1833- Hon. Preston Smith, page 6 (M-371) not. The Board of Regents was not abolished, reorganized, or in any other manner changed by the 1925 revision. It is our opinion that the term of office of the Board of Regents is to be determined from the proper construction of the 1913 Act rather than the 1881 Act for the following reason%: The 1881 Act prescribed terms of office which violated Section 30 of Article XVI of the Constitution of Texas, Kimbrouqh v, Barnett, supra. The 1913 Act reorganized the Board so as to comply with the provisions of Section 30a of Article XVI of the Constitution of Texas adopted the previous year, Section 2 of the 1913 Act provided that members of the Board wbo shall be in office at the time this Act take% effect shall continue to exercise their duties until the expiration 'of their re%pective terms as shall be determined "according to the requirements of Section-3 of this Act." Se&ion 3 divides the Board into equal classesand provides that one-third of the membership of each Board shall hereafter be appointed at each regular session of the Legiarlature, 1 For all of tbe foregoing reasons, it i% our opinion that the 1913 Act is the Act of the Legislature which determines the terms of office of members of the Board of Regents of the University of Texas. The proper construction of this Act (Senate Bill 203, Acts of the 33rd Legislature, regular session, 1913. Chapter 103, page 191) is not free of doubt. Several different dates h%ve been urged in various briefs submitted to this office, each presenting a reasonable construction of its provisions. In the past this office has not construed such provisions uniformly. See Attorney General's Opinion No, 2583 (1925) and Attorney General'% Opinion No. 2908 (19331, - 1834 - : Non. Preston Smith, page 7 (M-371) A review of the various appointments and confirmations of members of the Board of Regents of the University of Texas, in our opinion, fail to reveal a consistent construction of this Act by the various Governors of the State. With the foregoing in mind, we will attempt to give a construction to the 1913 Act as will carry out the evident purpose of the Legislature. *Y In Attorney General's Opinion H-296 (1968) it is stated: II . . .where a controversy arises as to the duration of a term of office, the earliest dates for cmncement and termination of the term should be adopted, in order to return the selective power to thoee exercising same at the earliest opportunity. Wrisht v. Adamg45 Tex. 134(1876); accord, Dobkin% v. Reecg, 17 S.i.2d 81 (Tex.Civ.App. 1929, error ref.)” While no specific calendar data is specified.by~the Legislature, it expressly provided that the members of the Board of Regents shall hereafter be appointed at each regular session of the Legislature and that one-third of the membership is to~be appointed every two years in compliance with.the ,. provisions of Section 30a of Article XVI of the Constitution of Texas. See Attorney General's Opinion M-360 (1969). ,,. Since the appointments must be made *at each regular session of the Legislature" the phrase "from the time of appoint- ment" cannot be construed to allow the Governor to change the terms of office by delaying appointment% and disregard the pro- visions of Article XVI, Section 30a of the Con%titution of Texas. Attorney General's Opinions H-338 (1969) and U-360 (1969) and authorities cited therein. -,. We reject the contention that the phrare “from the time of-their appointment" in Section 3 of the 1913 Act merely refers to a past event, for the reason that the members of the Board of Regent% in office at its firet meeting after the effective date of the 1913 Act were not appointed on the %%me date. si - 1835 - Eon. Preston Smith, page 8 (M-371) We reject the theory that the terms of office begin "from January 1, 1883" for the reason that such theory is based upon a construction of the 1881 Act, which Act is not controlling for reasons previously stated. We reject the theory that the termination date of the terms of office is January 10 for the reason that such theory is based on language contained in various executive appointments rather than on a construction of legislative enactments. We reject the "effective date of the Act" theory for the reason that such theory does not give effect to the expressed legislative intention that appointments are to be made during each regular session of the Legislature. We have concluded that the proper construction requires that the terms of office must begin "at each regular session of the Legislature", In view of the fact that the term of office must begin "at each regular session of the Legislature," the earliest date for commencement and termination of the terms is the first day of each regular session of the Legislature. Attorney,General"s Opinion M-296 (1968);Wrisht V, Adams, 45 Tex, 134 (1876): Dobkins v. Reece, 17 S,W,Zd 81 (Tex.Civ,App. 1929, error ,ref.)s You are accordingly advised that the date on which terms of office of the Board of Regents of the University of Texas commences and terminates is the date of the convening of a regular session of the Legislature, to wit: The second Tuesday in January, as provided in Article 5422, Vernon's Civil Statutes, which was enacted pursuant to Section 5, Article III, Constitution of Texas. Since Section 4 of Article IV of the Constitution of Texas pr&ides that the Governor shall be installed on the first Tuesday after the organization of the Legislature, Governor John Connally had the power and authority to appoint Frank C, Erwin, Jr., Dan Williams and Jenkins Garrett members of the Board of Regents of the University of Texas for six year terms to expire on the convening of the regular session of the Legislature in 1975. - 1836 - , , Ron. Preston Smith, page 9 (N-371) In view of our answer to your first two questions, it is unnecessary to answer questions three and four. SUMMARY The six year terms of office for members of the Board of Regents of the University of Texas begin and, end with the convening of a regular session of the Legislature, one-third thereof to be appointed each two years. Youpg very truly, Attor ky General of Texas t Prepared by John Reeves Assistant Attorney General APPROVED: OPINION CCMMITTEE Ferns Taylor, Chairman George Relton, Vice-Chairman Roger Tyler Houghton Brownlee Bill Corbusier John Grace W. V. Geljpsrt Staff Legal Assistant '4 -1837-