Untitled Texas Attorney General Opinion

‘AITomNRY,aMcNIICRAI. February 17, 1969 :,
Honorable,’ Preston Smith. :, ., ORlnlon ,No.” M-&g”
Governor ‘of ,the .State of Texas ,, :.
State Capitol .Building Re.: Certain que&iohs re.lating
Auetiii, Texas to the’ de.termtinatlon of the
&mmence.ment of’ the term of
office of members of various
boarda, wencies , c’ommls-
slon.8 and commltteeg of’ the
Sta$e. of Texas where pu;ch,
term of offike is not,speci-
flcally. prescribed by
atatute~ or the Cbqstitut+on
Dear Oovbhor Smith: gf l&w3.. .’
.‘You have requested the opinion ‘of th-is. ofX$e’.. upon ,.the
,following~ que,qtlont%:‘,
“1.. Where a board, ‘age.ncy~‘,c&nmisa’ion or .”
commlttee~ of ‘the State of .Texa,a. ia created’ .bji:“.
the.Constltut.lon of the .Sta.td of Texas, or .by
Act of the Texas Legislature, the e,ame.Tao.be ‘,
composed of members to be appotited by the
Governor for a definite term,‘when doea the
term .of office, of’ each member begin ahd end,
when the Constitution or Act oreatlng same,
does not speolfloally 80 provide?
“2 . Where a board, agency, commisalon ore
conunitte~e of the State of Texas la created by
the Constitutlon,of the: State of TBXBB,,or by,,
Aqt ,of the Texas Iegialature, the. same. ‘to be’
composed of membere to be appointed’ by, the,: ..
Governor for a definite term,, with the. advice
and consent of the Senate, when does the te’rm
of office of.eaoh member begin and end, when
the Conatitutlon or Aot creating same doee ‘,
not 8peolflcall.y 80 provide?
.’
.~'~. ',
-1658'- .
." :.
.’ .
Hon. Preston Smith, page 2 (M-338 )
“3 . Where a board, agency, commission or
committee of the State of Texas is created by
the Constitution ‘of the State’ of Texas, or by
: Act of the Texas Legislature, the same to be
composed of members to be appointed by the
Governor, with the advice and consent of the
Senate, for a term falling under the provisions
of Article 16, Section 30, ‘Constitution of the
State of Texas, when does the term of office
of each member begin and end, when the Con-
stltutlon or Act creating same does not specifi-
cally so provide?
“4. Where a board, agency, commission or
committee of the State of Texas is created by
the Constitution of the State of Texas, or by
Act of the Texas Legislature, the same to be
composed of members recommended by another
board, agency, commission or committee of the
State of Texas for a definite term, but to be
approved by the Governor of the State of Texas,
when does the term of office of each member
begin and end, when the Constitution or Act
creating same does not specifically so provide?”
In connection with the foregoing questions you have
mentioned that in certain instances your office has beenunable,
to determine the beginning and end of the term of many of the
,offioers serving on various boards, agencies, commissions and
committees of ,the State of Texas.
Each of the questions which you have posed pertain to
the determination of the commencement date of the term o’f office
of various appointive positions on boards, agencies, commissions
and committees of the State of Texas. In each of the instances
the statute or constitutional provision creating such b~oard,
agency, commission or committee does not specifically, set forth
when the term of office will commence. The questions you have
posed differ In only the following respects:
1. Appointments for a definite term by the ,Governor;
2. Appointments for a definite term by the Governor
with the advice and consent of the Senate;,
1,,,. ~_,y!‘c,~;,,;
%. ,,,
,,,,I,, .’ /ji”. ‘,f ,,,., ,‘J iii:> :,,. ,,
,’ ,``‘,i j,_ ‘,,‘,,-:lk&Z9i: T, :a’ ..,‘S,.,,,’
...
,.,
‘,
Hon. Preston Smith, page 3 (M- 3381,
3. Appointments by the Governor with the advice and
consent of the Senate for terms subject to the
provisions of Section 30 of Article XVI of the
Constitution 0,f Texas;
4. Membership recommended by another board, agency,
commlsslon or committee with approval by the
Governor.
,. "
In answering the foregoing questionsit maybe helpful
to lnltlally refer to the statement of .the Supreme;Courtof ~Texas
In the case of Spears v. Davis, 398,S.W,2d 921 ('I+.Sup. 1966),
which lsset forth as follows:
"., .; ,, ',
“In order to avoid confusion, a clezir dis-~
tlnctlon must be made between.the phrase', 'term
of office' and an lndl.vldual~s tenures of,offlce;
'The DeriOd of time desinnated as a'term of of- ',
ffce may not and often does not ,colnclde with an
individual ‘8 tenure of office , . . . ” (Emphasis
added, )
me questions presented here do not necessarily deal wlth~
an Individual Is tenure of office as. a. member..o.f.a .pasticu~lar.-.,board,
agency, commission or committee, but are directed so~lely ‘to ~the
.cixnmencement date gf the term of the office or membership to which
he, has ,been appointed; The, indlv~lduaPs tenureof office.,in a.
particular office may coincide with the term of pffice of the
position to which he, has been,appointed, but In some instances
It will not. An officer Is entitled to hold the.office until
his successor is elected or appointed and qualifies. Article 18
V.C.S.
In determining the commencement date of the term of
office of a position on a board, agency, commlsslon or committee
of the State of Texas oreated by either a statutory or consti-
tutional provision which i&silent as to Intent concerning when
the term of office is to commence, a review of the authorities
disclose that there atie at least two dates which are generally
to be considered -- the date of the first appointnient to the
office, and the effective date of the statute or constltutlonal
provision creating the office 0 See Attorney General’s Opinion
O-3584 (1941).
-1660-
Hon.' Preston Smith, ,page 4 (Ept 338)
In the case of Royston v. Griffin, 42 Tex. 566 (1875),
the ~court stated that:
“It certainly cannot be said that the language
of the Act Is utterly free from ambiguity or un-
certainty. Where this is the case, it is believed
t,o be the.aoundeat rule of interpretation in a
republican system of government, to abbreviate
rather than prolong by construction, official
tenure. In case of doubt, the preference should,
It Is thoug,ht, be Riven in favor of the speediest
return of the right to fill the office to the ap-
pointing power . . . .II (Emphasis added.)
In the case of Wright v. Adams, 45 Tex. 134 (1876), the
coul’t stated ln'its opinion that: :
II. . . It is believed, moreover, to be a
souhd,rule of,constructlon, which holds, when the
duration or term of an office which Is filled by
uouular elections is a auestion-of doubt or un-
certainty, that the interpretation is to be fol-
lowed which limits It to the shortest time, and
returns to ~the people, at the.earliest period the
power and authority to refill it." (Emphasis
added.)
The court in the case of Dobkins v. Reece, 17 S.W.2d
81 (Tex.Clv.App. 1929, error ref.), stated In its opinion that:
When the duration or term of an
office is's question of doubt or uncertainty,
the interpretation should be followed which
limits such office to the shortest term.
Wright v. Adams, 45 Tex. 134 . . . .'I
In 67 CdJ.S. 1]44c, Officers,,it is stated that:
If the language of a statute or con-
stltutlonal'provislon specifying the term of of-
fice of an offlalal is ambiguous, the lnterpreta-
tlon which limits the term to the shortest time
will be adopted." (Citing in the footnote ARueler
217 Cal. 429, 19 P.2d 241; Chamski
Mich. 238, 284 N.W. 711; Lowrie. v.
Mich. 63, 276 N.W. 900; State ex rel
Bonner, Governor v. District Court of First Judicial
. ,
Hon. Preston Smith, page 5 '(M- 338)
Dist. in and for Lewis and Clark Counties, 206 P.2d
166; Dobkins v. Reece, Clv.App., l'i:S.W.@d 81,
error ref e ) e ”
See alsO Maddox v. York, 54 S.W. 24 (??ex.Clv.App. 1899, aff. 55
S.W. 1133); Mechem on w of Public Offices and Officers, .Section
390, P. 255.
The foregoing cases clearly reveal that It has long been
recognized In Texas, as well as many other jurisdictions, that
where there exists uncertainty as to the term of office of a
particular position, the courts will favor tin Interpretation
which limits the term to the shortest time and returns the elective
or appolntive power to be once again exercised. Such being the
case, It would seem to necessarily follow that the courts would
favor an interpretation which commences the beginning of the term
of office at the earliest possible date because this would result .'
in the speediest return of the right to fl,ll the office to the 1
appointing power. .'
In the case of Eades v. Drake, 160 ,Tex. 381, 332 S.W.2d
553 (l%O), the Supreme Court of Texas stated that:
~ "The 160th Judicial District was"creat&d.b%.
an Act of the ,55th Legislature and came Into e&at-
ence on the effective day of the Act, that Is,
ninety days after May 23, 1957, the day upon'which .'
the I&gl,slature adjourned e D . ~
.~..
IIe * 0 0
"Under the Texas constitution, the office
of diatr'ict judge Is an electlve.posltion, with,
the exception that the Governor may fill vacancies
by aoooititment until the next nene.ral election,
Ai a‘hsual thing when a dlstrl& court is,,cr&at.&d'
there la-a vacancy In the office of judge to be,
filled by gubernatorial appointment. However,
when and after a general election takes place,
the term of a district judse'ia flxed,at-four
years by the constitution. (Emphasis added.) (
Applying the reasoning of the foregoing case to the present
situation, it would appear that a board, agency, commission or
committee created by a constitutional provision or statutory en-
-1662-
Hon. Preston Smith, page 6 (M- 338)
actment of the Legislature would come into existence on the
effective date of the constitutional provision or statutory en-
actment. In turn, it would likewise seem to follow that any
appointlve positions upon a board, agency, commission or committee
would come into existence on the effective date of the statutory
enactment or ConStitutional provision, unless otherwise provided.
While there may be vacancies exls'tlng in positions on the boards,
agencies,, commissions or committees, If the appointing power does
not make the appointments on the effective date of enactment or
~provision creating the position, this would not of Itself seem to
affect the time at which the term of office commenced. A somewhat
analogous situation is commented upon in 67 C.J.S. 850, Officers,
where It is stated that:
'Since the term of an office is distinct from
the tenure of an officer, 'the term of office' is
not affected by the holding over of an Incumbent
beyond the expiration of the term for which he was
appointed; and a holding over does ndt change the
len th of the te?, but merely shortens the;term
of f is successorT
The same reasoning would apply to the questions here pre-
sented. The fact that an appointment wasnot made on the ,commence-
ment date of the term of office would not change the lengfh,df'the
term, ,but'i,t would merely shorten the length of time that the in-
dlvidual,so appointed could serve in the position..
In Attorney General's Opinion M-296 (1968), the question
was presented as to the date on which the staggered terms of
members of the State Judicial Qualifications:Commission commenced
and terminated. In passing upon this question it was stated that:
A term of office is not necessarily
measuiei i& the date of appointment thereto, but
rather by the date set by the act which brings s.uch
'office into existence. Even though no specific
date is mentioned by such act, its’ terms pay be- ~’ ‘I’
such, as is the case here, that a definite date'
may be readily ascertained. Bruce v. Matlock,
113 S.W. 990 (Ark.Sup. 1908). Boyd V. Huntington;
ll'P.2d 383 (Callf.Sup. 19321; PeQple
,106 P.2d 635 (Calif. Dist. App. 1940).". (Emphasis.
added. )
-1663-
.
Hon. Preston Smith, page 7 (M-338)
While the foregoing comment8 would likewise seem to support
a rule of construction that the term of office of an individual
serving on an agency, board, commission or committee of the State
of Texas, created by an enactinent wholly silent concernln&the
commencement date of such term of office, begins with the effec-
tlve~ date of the enactment, the SupFme Court of Texas In Spears
398 S.W.2d 921 (Tex.Sup. 1966), made the following
ifx%z%:
The relators oontend that.the general
rule aa’& the commencement of terms Is that,
IThe term of office begins from the time, if’any,
fixed by law, or where no time Is fixed, on the
day of election or the date of appointment. 1
67 C.J.S. Officer-h e ere
is authority to the oontia’8fl;. we ’are in agree-
ment wrth this contention and If we were to
consider the constitutional provision relating
to Senator8 by Itself, we would have no difficulty
In saying that the usual senatqlal term extended,
four yerl;rs from the day of the general ‘election
* ... s (Emphasis added. )
While the foregoing statement was made by the Supreme’
Court in its ~opinion,it should ,be noted that the court did ‘.‘~’‘:’
not base its decision in the case on this point and therefore
the statetnent Is judfofal’,dlcta rather than an actual holdfng
of -the court 0 In addition, SoeaPs v. Davis, supra, ,dealt w,ith
Teleotive. offices rather ‘than appolntlve offices;
Of even greater significance in discussing Sm
18 the reference made to 67 C.J.S. Officers, rJ 45, wherein
%?%stated that z
,I The general rule Is ‘that8 where no
time ia’fixed by the constitution or Statute. the
term begins, in-the case of elective offices; on
the day of election, and In the case of appolntl@e
offices, on the date of apoointment e I) . . ‘I (Emphasis
added Q)
Among the case8 cited In aup ort of the statement iS the .oaae’ Oz
People v; Morris,, 41 Cal,2d i: 30, ,106 P.2d 635 (3940).
-1664- ’
.
Hon. Preston Smith, page 8 (M-338)
In the case of People v. Morris, m the .co,urt had
before it the question of when the term-of office donimenced
as to a member of the estate Chiropratlc Board. The statu'te
creating the board provided for staggered board membership.
Such appointments were to be made bv the Governor within
sixty hays from the effective date of the act. The court ln
its opinion stated that:
Perhaps the leading case in this
urisdl&ion Is Boyd v. Huntington, 215 Cal..473,~
J 1 P,2d
'I0 383, which case has been discussed at
length by both parties. The court was there
,dealing with the two statutes relating to the ~ :,
board of dental examiners. Neither of said
statutes contained the provision found in the'~
'statute here directing the appointment of the : ,::,
b,oard by the governor 'within sixty days' anid ``".
providing that 'Of the members first appointed,
one shall be appointed for a term of one year,
two for two years, and two for three years.'
The statutes there did provide, however, for
staggered terms and for rotation In office and
It was necessary to determine the date of the
commencement of the term8 in order to carry out
'the legislative intent. Under the situation ..
prese2atedy statutes before it, the court con- .:
eluded that the terms commenced on the effeCtive
date of the act, It was there said DThe
law is well established that a term*beg;ns not '.
necessarily from the date of appointment, but ".
from the time fixed by the lawmakers for it to;
begin. t We may imply from the language of the :
court that the time of the commencement of a
term under any given statute is to be determined
by the intent of the lawmakers as found from a
consideration of such statute as a whole.
"As we read the statute under consideration,
we believe that it contains a definite impli- '.
cation that the terms of the original boards mem-
bers should commence upon the date of the first
appointments rather than upon the effective date
of the act 0 e D .'I (Emphasis added.)
-1665-
Iion; Preston Smith, page 9 (M-338 )
In the case of Boyd v. Huntington,,.215 Cal. 473, 11 P.2d
383 (Cal.Sup.Ct. 1932 , referred to by the courkin Pe;p;;t;ri
bk~Z?f;iS~SUP?., the court had before it the question o
mln ng the ate of commencement of the term of office of the
member8 of the dental examiners board. The issue was whether
the commencement date of the terms of office was the date of
appointment or the effective date of the act. The court in
holding that the effective date of the act controlled the
,commenoement of the termof office of the members ,of the
board .8tated:
"The Governor who appointed petitioner was ~'
limited In his appointment to the duration of the
term fixed by law, and the naming of any period,be-
ond such term Is to be regarded as aurplusage.
56 C.J., p. 965. Since the term of an office 18’ ‘,
distinct from the tenure of an officer, the 'term :
of office' is not affected by a holding over of an
Incumbent beyond the expiration of the term for
which he was appointed, and a holding over does
not change the length of the,term, but merely
s'hortens the term of the suoces8or. A88uming,
therefore, t&t the term to which petitioner was
appointed began and ended on August 8, his,appoin$-~.
ment on November 9, 1927, was but for an unexpired
.term.
"The law is well established that a term
benins not necessarily from the date of the
suit may properly be inferred from the construe- :
tion of the statute a8 a whole . . . The statutes
here in question does fix the date of the
commencement of the terms as August 6, 1915, the
effective date of the act, and the rotation in
office or classification provided for therein In
our opinion definitely fixes and establishes the
end thereof.
-16660
Hon. Preston Smith, page 10 (M- 338)
?Phe classification or provision for rotation
in office in the statutory declaration that not.
more than the terms of two member8 shall expire
in any one year has for it8 purpose the fixing
of the term, and It cannot be given except by a
holding that the beginning and expiration dates
of the terms are so fixed and'that all term8 run
with the office. A contrary holding would re-
sult in a destruction of any effect of the pro-
vision." (Emphasis added.)
The only case authority by a Texas Court called to our
attention involving the point Is Spears v. Davis, m, 'whlch~
quoted statement by the Supreme Court of Texas is considered as.~,
judicial dicta as distinguished from'mere oblter c]$ci+', 15'Tex.
Jur.. '2d '588, Courts, Sec. 130; p.595, .Courts, See,., J35.L,.,.4.3
such Itcannot be ignored. In addition, there is~ amplepre-
cedent by prior Attorney General's Opinions to support the
position that the term of office of a person serving onan
agency, board, commission or committee commences upon the date of
appointment of the initial appointee In instances where the
commencement of the term cannot be determined from the language
of the enactment. Attorney General's Opinions O-3584 (1941)j
o-2805 (1941), O-4903 (1943), O-5169 1945 and Attorney General'8
Conference Opinions 2572 (1924) 2913 t 1933 1 and Conference, Opin-
ion dated January 23, 1950. In accord, 43 Am. JUP. 15, Public
OffQers; Sec. 155, and cases there cited.
A8 can be seen from the cases cited by the texts in.Corpus
Juris Secundum'and American Jurisprudence, the authorities are
somewhat in conflict a8 to whether the term of office of an in-
dividual serving by appointment on a State agency, board,;oom-
missionor committee commences on a date determined bye the,
effective date of the enactment creating the position or on the
date of the initial appointment to the posftion, or the date of
qualification by the appointee,
Except for the Supreme Court's statement in Spears v. Davis
and the long line of Attorney General Opinions above cited, we
would not hesitate to adopt a better rule of construction which
~would favor permitting the effective date of the enactment to
determine the commencement of the term of office in the absence
of any provision settingforth the commencement date of the term
of office. In addition, by using the effective date of enact-
ment, as the determining factor in setting the commence~ment-date:
-1667-
Hon. Preston Smith, page 11 (,l& 338)
of terms of office where the statutory OP constltutlonaI. pro-
VISIOniS silent thereon, determination of such commencament
date can be more accurately and easily made. Certainly be-
cause of this conflict of authorities, clariflcatlon by the
Legislature would be extremely helpful, and, in fact, it is a
virtual necessity If absolute legal certainty Is to be assured.
In the absence of legislation, however, and In an effort
to Peconclle the aforementioned conflicts, we are of the
opinion that the following rules will eliminate most of the
conflicts:
(1) Insituatlonswhere 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 commence-
ment date of the temn of offlee of such
appointlve positions will be the effective
date of the enactment creating such posl-
tlon. This was so held in Attorney General's
Opinion No. M-29$ (1968) and that Opinion is
reafflrmed In this connection.
(2) In Instances where the enactment creates a.
single position and does not provide for a
definite beginning date for the commence-
ment of the term of office, the term beglns
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 fn such
position.
It should be noted at this point that there may be ln-
stances where the legislative enactment or constitutional pro-
vision creating offices on a board, agency, commlsslon or
committee of the State of Texas has been amended since its
initial enactment. We are of the opinion that an amendment to
the statutory OF constitutional provlslon creating an agency,
board, commission or committee does not change the commence-
ment date of,the terms of office of the members on such agency,
board, commlsslon or committee unless such amendment clearly
-1668-
.Hon. Preston Smith, page 12’ (M-338 )
has as its purpose such a change. See State ex rel -McCall v.
16 S.W.2d 809 (Corn. Sup. 1929); Manry v. McCall,
m .2d 348 (Tex.Clv.App. 1929).
Prior opinions are overruled In sofar as they are In conflict
herewith.
SUMMARY
The commencement date of the term of office of an lndivi-
dual serving on a board, agency, commission or committee of the
State of Texas, created by a statutory or constitutional pro-.
vision which Is silent as to the commencement date of such term
of office, Is fixed by the effective date of the legislative en-
actment OF constitutional provision creating such office In those
Instances where the board, agency , commission or committee Is a
,multi-member body and the statutory or constitutional provision
provides for staggered terms of office, Indicating an implica-
tion that the terms of office should commence on the’effectlve
date of the statutory or constitutional provision. In those
Instances where the statutory or constitutional provision does
not provide for a staggered term of a multi-membership body,
the commencement date of the term of office Is fixed by the date.
of appointment of the Initial appointee.
Amendments to the.statutory or constitutional prov-ksions ”
creating a board, agency, commission or committee do, not chahge
:the commencement date of the terms of office of the members of
such board, agency, commission or committee unless such amendment
clearly has as its purpose such a change.
Y s very truly,
BP
I
.Prepared by George M. Kelton
Assistant Attorney General
-1669-
Hon. Preston Smith, page‘13 (M-338)
APPROVED:
OPINIONCOMMITTEE
Kerns Taylor, Chairman
Roger Tyler
John ,Qrace
Monroe Clayton
Fielding Early
IiAW!RORNEPHILLIPS
Staff Legal Assistant
-16'10-