Untitled Texas Attorney General Opinion

The Attorney General of Texas
December 31, 1982
MARK WHITE
Attorney General
Mr. Oscar Reeder, Chairman Opinion No. MJ-562
Supreme Court Building
Texas State Board of Public
P. 0. BOX 12548
Austin, TX. 78711. 2548 Accountancy Re: Constr"ction of section
5121475-2501 3301 Northland Drive 4(g) of article 41a-1, V.T.C.S.
Telex 910/674.1367 Suite 600 concerning attendance and
Telecopier 5121475.0266 Austin, Texas 78731 vacancies of board members
1607 Main St., Suite 1400
Dear Mr. Reeder:
Dallas. TX. 75201.4709
2141742.8944 You ask several questions concerning the construction of section
4(g) of the Public Accountancy Act of 1979, article 41a-1, V.T.C.S.
4824 Alberta Ave., Suite 160
This section reads as follows:
El Paso, TX. 79905-2793
915/533-3484 (g) Each member of the board shall be present
for at least one-half of the regularly scheduled
board meetings held each year. Failure of a board
1220 Dallas Ave., Suite 202
Houston, TX. 77002.6986
member to meet this requirement automatically
713/650-0666 removes the member from the board and creates a
vacancy on the board.
a06 Broadway, Suite 312
You first ask whether article XV, section 7 of the Texas
Lubbock. TX. 79401.3479
8061747-5238
Constitution imposes procedural requirements upon the removal of a
board member for absenteeism.
4309 N. Tenth, Suite B Article XV, section 7 provides as follows:
McAlle”, TX. 76501-1685
5121682-4547
The Legislature shall provide by law for the
trial and removal from office of all officers of
200 Main Plaza, Suite 400 this State, the modes for which have not been
San Antonio. TX. 78205.2797 provided in this Constitution.
5121225-4191
Members of the Texas State Board of Public Accountancy are officers.
An Equal OppOrtunitYI See V.T.C.S. art. 41a-1, 094(a), 5(b); see also Attorney General
Affirmative Action Employer opinion Mw-415 (1981).
It is well established that when the constitution prescribes the
mode for removing an officer, the legislature may -not authorize
removal in another mode. Dorenfield v. State ex rel. Allred. 73
S.W.Zd 83 (Tex. 1934); Knox v. Johnson, 141 S.W.2d 698 (Tex. Civ. Api.
- Austin 1940, writ ref'd), Although the statute does speak of
automatic removal. the removal must be pursuant to a trial, which
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Mr. Oscar Reeder - Page 2 (MW-562)
entails the judicial investigation and determination of issues between
parties. Dorenfield v. State ax rel. Allred, supra. Where a board
member has allegedly failed to meet the attendance requirement, the
removal procedure would be by writ of quo warranto. -See V.T.C.S.
arts. 5996, 5997, 6253 and 6257. See also Attorney General Opinion
H-226 (1974).
You inform us that in each case where a member of your board has
been unable to attend more than 50% of the scheduled meetings he has
submitted his resignation to the governor. The governor is in such
cases authorized to appoint a successor upon acceptance of the
resignation. However, until the successor is appointed and qualifies,
the board member continues in office Dursuant to article XVI, section
17 of the Texas Constitution. Plains Common Consolidateh School
District Number 1 of Yoakum County v. Hayhurst, 122 S.W.2d 322 (Tex.
Cl". App. - Amarillo 1938, no writ); see also Attorney General Opinion
M-659 (1970).
You next inquire about the reporting procedure necessary to
implement section 4(g) of article 41a-1. Article 6253, V.T.C.S.,
provides that when a public officer has done an act which works a
forfeiture of his office, the attorney general may petition the
district court for leave to file an information in the nature of quo
wsrranto. Possible infractions may be reported to this office if you
wish a quo warrant0 proceeding to be pursued. See Stamps v. Title,
167 S.W. 776 (Tex. Cl". App. - Galveston 1914, no writ). Moreover, it
would be appropriate to report a possible infraction to the governor,
who would appoint a replacement when the office is vacated.
You next ask the following question:
What constitutes being 'present' at a board
meeting? If the meeting is scheduled for two or
three days, does attendance for one day constitute
being present as contemplated by the section?
In our 0pilti0n, the board itself should make a reasonable
determination as to what constitutes compliance with the attendance
requirement in the context of its own meeting schedule. The board's
determination can be reviewed in a judicial proceeding to remove a
board member for absences.
You next ask what constitutes the term "each year," within
section 4(g) of article 41a-1, V.T.C.S. That is. is "each year" a
biennium beginning September 1, a fiscal year beginning September 1, a
calendar year beginning January 1, or each 365 days beginning with the
date of appointment of a particular member. Since the term "year" has
not been modified by the term "fiscal" or in any other manner, it is
our opinion that the legislature most likely intended the proper
p. 2061
Mr. Oscar Reeder - Page 3 (MW-562)
construction to be calendar year. See V.T.C.S. art. 23(16). Where a
term is not defined in a statute, courts will determine legislative
intent by relying on the language the legislature used, and will apply
the "ordinary signification" to statutory language. Beef Cattle
Company v, N. K. Parrish, Inc., 553 S.W.2d 220, 222 (Tex. Cl". App. -
Amarillo 1977, no writ).
Finally, you ask what effect an "automatic" vacancy has on the
definition of a "quorum" if a board member is removed for excessive
absences and a successor has not been appointed. Section 5(b)
provides that "a majority of the board" constitutes a quorum for the
transaction of business. The quorum of a board remains at all times a
majority of the authorized membership, even though there are vacancies
on the board. See generally Thomas v. Abernathy County Line
Independent School District, 290 S.W. 152 (Tex. Comm'n App. 1927,
-idamt
- adouted): Attornev General Ouinion O-761 (1939). There is no
statute which excepts the board from this general rule. Compare Educ.
Code 523.18. Of course, board members who have merely tendered their
resignations will continue to serve pursuant to article XVI, section
17 of the constitution until the governor appoints a successor. It is
their duty to attend such meetings until the successor qualifies.
SUMMARY
Section 4(g) of article 41a-1, V.T.C.S.,
requires that members of the Texas State Board of
Public Accountancy must be present for at least
one-half of regularly scheduled board meetings
held each calendar year. Failure of a board
member to meet this requirement disqualifies him
from membership on the board and subjects him to
the possibility of removal by judicial
proceedings. Possible infractions of this
requirement may be reported to the attorney
general or the governor.
z*
MARK WHITE
Attorney General of Texas
JOHN W. FAINTER, JR.
First Assistant Attorney General
RICHARD E. GRAY III
Executive Assistant Attorney General
p. 2062
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Mr. Oscar Reeder - Page 4 (MW-562)
Prepared by Susan L. Garrison
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Susan L. Garrison, Chairman
Rick Gilpin
Jim Moellinger
Bruce Youngblood
p. 2063