Untitled Texas Attorney General Opinion

.<~.y~’ . :,.
.
.
Tm% ATTORNEY GENERAL .
OFTEXAS
March 6, 1974
The Honorable Mark W. White, Jr. Opinion No. H- 253
Secretary of State
Office of the Secretary’of State Re: Does “at his (Governor’s)
Austin, Texas 78711 pleasure” constitute a
term of office within the
Dear Secretary White: definition of i 2(3)(C) 7
Article 6252-9b (Acts 1973, 63rd Leg., ch. 421, 6. 1086), the
Ethics Bill, in its 5 t(3) defines “Appointed officer” to igclude, as
Subsection C:
“an officer of a state agency who is appointed
for a term of office specified by the constitution or
a statute of this state. . . .‘I
The Constitution and statutes “specify” a term of years for num-
erous officers of state agencies. For example, Article ,j,’ $49-b, Con-
stitution of ,Texas; and Article 54212, Vernon’s Texas CiLl Statutes.
For others, no term is given. See, Article 43.003, Vernon’s
Texas Water Code and Article 6008-1, V. T. C. S. Finally, there are
officers who are to be appointed to serve at the “will” or “pleasure” of
the appointing officer. See, for example, Articles 4413(201) and 4413d-1,
Vernon’s Texas Civil Statutes.
Your question is whether an appointment “at his (Governor’s) pleasure”
consl,itutes a term of office so as to make such appointees “Appointed officers”
under Article 6252-9b, w.
,Generally, the phrase “term of office” is used to mean the fixed period
of time for which the office may be held. It is the period designated by the
Constitution or laws as the time during which the office may be held rather
than the time an individual holds the office. 67 C. J. S., Officers. $42, pp.
p. 1182
The Honorable Mark W. White, Jr., page 2 (H-253)
t95-96~, .and cases cited. And see, for example, State v. Galusha, 104
N.W. 197 (Neb. 1905); Recall Bennett Committee v. Bennett, 249 P.2d
479 (Ore. 1952); Mutlins v. Jones, 162 S.W.2d 761 (Ky. 1942); Smith v.
Pettis County, 136 S.W.2d 282 (MO. 1940).
A person holding office at the pleasure of the appointing officer
do(!s not have a term of office. Arthur v. Hubbard, 70 A. 2,d 925 ,(My.
1950); City of Gwensboro v. Hazel, 17 S.W.2d 1031 (Ky. 1929); Kraterr
v, Commonwealth, 15 S.W.2d 473 (Ky. 1929); State ex rel. Gilbert v.
Board of Commissioners of Sierra County, 222 P. 654 (N. M. 1924);
Bayley v. Garrison, 214 P. 871 (Cal. 1923); State ex rel. Matlack v.
Oklahoma City, 134 P. 58 (Okla. 1913); State ex rel. Rumbold v. Gordoni
142 S.W. 315 (MO. 1911); Harrold v. Barnum, 96 P. 104’~(Cal.‘App. 1908);
Ida County Savings Bank v. Seidensticker, 92 N.W. 862 (Iowa 1902); &
re Batey, 52 N.Y.S. 871 (App. Div. 1898); Somers v. State, 58 N.W. 804
(S. D. 1894).
In Spears v. Davis, 398 S.W.2d 921 (Tex; 1966),’ where the question
was whether two,state senators were disqualified from running for Attor-
ney General by Article 3, $18, of the Texas Constitution, which forbida
such a candidacy “during the term for which he may be elected, ” the
Supreme Court said:
“In order to avoid confusion, a clear dietinction
must be made between the phrase, ‘term of office’ 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. . . .”
(398 S. W. 2d at 926)
And see Hall v. Baum, 452 S.W.~ 2d 699 (Tex. 1970).
We believe that by referring to the “term of office specified by the
constitution or a statute of this state, ” the Legislature evidenced its inten-
tion to refer to a apbcific, designated period of time, following the line of
authority set out abovei
p. 1183
_ . -
The Honorable Mark W. White, Jr., page 3 (H-253)
Therefore, it is our opinion that an officer of a state agency appointed
“at the pleasure” or “at the will” of the Governor or other appointing autho-
rity is not one appointed for a term of office specified by the Constitution or
a statute of this state.
SUMMARY
Officers of state agencies appointed for a term of
office, as contemplated by Article 6252-9b. 0 2,(3)(C),
V. T. C. S., do not include those appointed at the “plea-
sure” or “will” of the appointing officer.
Very truly yours,
JOHN L. HILL
General of Texas
DAVID M. KENDALL, Chairman
Opinion Committee
p. 1184