JIM MA-i-l-OX Attorney General

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# TheAttorney General ofTexas
)ecamber2, 1985

Honorable Lloyd Cxiss Chairman Committee onLabor,and Employment Relations TaxasHouse ofRsFKeSentetiVaS P. 0. Box 2910 Austin, Texas 78769 OpinionNo. JM-389
Ret Whether the city of Galvestonmay removepersons appointed to a city board, and relatedquestions

Dear RepresentativeCriss:
You askwhetF.erthe city of Galvestonmay enact avalid ordinance which changes the terms of office formembers of the city'sboards and agencies. You inquire particularly about the city's authority to change the terms of office of the Park Board of TNstees established pursuant to article 6081g-1,V.T.C.S.
Galveston is shome rule city. You statethat the Galveston city code initially provided a twoyear term of office for the Park Board of Trustees, begtnning September 1 and ending two years later. Recently, Galvestm enacted an ordinance which altered the terms of office for the city's various boards and agencies so that all terms would begin on June 1. This ordinance also shortened the terms of presentmembers of the Park Board of TNstees. Those terms scheduled to expire September 1, 1985, were shortened to expire June 1, 1985. Terms scheduled to expire on September 1, 1986, are set to expire on June 1, 1986. YcsuBtate that the city of Galveston wishes to know whether it can :restNcture the terms of office of city boards, specifically the lParkBoard of Trustees, to provide for uniform transition ofmembership. You ask the followingquestions:

1. Toes the city of Galveston have the authority to shorten terms of office of the Park Board o,ETNSteeS in order to effectuate a reStNCtWing of the terms of office of all city offices?
2. If not, does the city of Galvestonhave the authority, implied or expressed, to remove appointt,dboard members at will and without showing good cause?

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3. Does article XVI, section 27 of the Texas Constitution appl,yto appointed officials as well as to those elrfcted;and are there any other statutes or prorisions that would require the replacements far the removed or resigned appointees to fill out only that portion of the unexpired terms of the removed or resigned appointees or may they serve their full two year termsbeginningwith theirappointmentdate?
As a home Nle city, Galveston has full power of local selfgovernment. Itmay enact suy charterprovision or city ordinancenot inconsistentwith the const.itutionor general law. Tex. Const. art. XI, 55;V.T.C.S. arts. 1165, 1175, 1176; State ex rel.Rosev. City of La Porte, 386 S.W.2d 782 ('Iex. 1965);City ofEoustonv. State ex rel. City of West University Elate, 176 S.W.2d 928 (Tex. 1943), appeal dism'd, 322 U.S. 711 (194rqqo substantial federal question). The home rule power of Galveston over the Park Board of Trustees must be exercised consistently with article 6081g-1, V.T.C.S. This statute authorizes home rule cities with a population in excess of 40,000 persons to create a "Pars Board of Trustees" for the purpose of acquiring, improving, equipping, maintaining, financing or operating public parks. V.T.C.S. art. 6081g-1, 511, 2. The board has numerous express powers, including the power to issue revenue bonds. Id. - 97(k). Section 3 fixes the,tNstees' terms of office:

Sec. 3. The Park Board of Trustees shall be composed of ni.ne members appointed by the governingbody of such city, one of whom shallbe a member of such governing body. Such tNstees shall serve for ;rterm of twoyears from the date of their appointment and any vacancies shall be filled by appoirz=t of the governing body of such c@y; provided that five tNstees first appointed shall serve for initial terms of two years and four 'trusteesfirst appointed shall serve for initia::terms of one year, such initial terms to be des:;f;nated by the governing body of such city.

. . . (Emphasisadded). With the exception of the initial one year term forpart of the board, the statute establishes a two year term, to begin on the date of the first appointment. See generally Spears v. Davis, 398 S.W.2d 921 (Tex. 1966). Section 8 of article 6081g-1, V.T.C.S., provides that [tlhisAct shall be cumulative of all other laws

and of all Home-Rule Charter provisions, but this

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..

Act shall take precedence in the event of conflict.
The term of office and commencement date establishedby section 3 of article 6081g-1, V.T.C.S., take precedence over any conflicting charter provisions. Therefore, the city of Galveston does not have authority to shorten the terms of office of the .Park Board of Trustees, nor has it authority to change the previously determined date on which the terms b@n. See Spears v. Davis, 398 S.W.2d 921 (Tex. 1966); cf. Attorney Gene= Opinion B-955 (1977) (absent legislativedirection. TexasYouth Councilmay reduce chairman's term by resolution). The city of Galveston does not have authority to shorten the terms of office of the Park Board of Trustees established under article 6081g-1,V.T.C.S. See also Tex. Const. art. XI, 85 (no home rule charter or ordinance passed thereunder shall contain any provision inconsistent with the constitution or general laws of the state).
You next ask whether,the city of Galveston has authority to remove appointedboard members atwill andwithout showinggood cause. A home rule city may remove a city officer pursuant to applicable statutesand charterprovisions. For example, theHousingAuthorities Law permits the mayor to remove housing commissioners for inefficie*cy, neglect of duty, or :misconduct. V.T.C.S. art. 1269k, 5§5, 7; see White v. Bolner, 223 8.W.2d 686 (Tex. Civ. App. - San.Antonio 1949, writ ref'd). The courts have upheld city charter provisions authorizinga city to remove an officerby recall election. Bannerv. Belsterling. 138 S.W. 571 i:Tex. 1911).aff'g, 137 S.W. 1154 (Tex.Civ. APP. - Dallas 1911). In City of San Benito v. Cervantes, 595 S.W.2d 917 (Tex. Cl". App. - Ea&and 1980, writ ref'd n.r.e.). the court upheld the city commissioner's dismissal of the city manager at will and without cause, pursuant to the following charter provision: "He shallbe r-able at the vi11 of the city commission on thirty days' notice." City of SanBenils) v. Cervantes, 595 S.W.2d at 918.
To determine whether s particular city officer is removable at will and without good cause, it is necessary to examine the statutes and valid charter provisions applicable to that office. You have specifically inquired only about the Park Board of Trustees; therefore, we will not attempt to deal individually with each of the numerousboards and agencies affectedby thenew city ordinance.
As already determined in answer to your first question, the city of Galveston does not have authority to remove members of the Park Board of Trustees by reducing the term of office to less than two years. See Bonner v. Belsterling. 137 S.W. 1154 (Tex. Civ. App. - Dallas 1911). aff'd 138 S.V. 571 (Tex. 1911) (stating in dicta that officer may be removed by abolishing office or by legal action declaring itvacant). Art::cle6081g-1,V.T.C.S., doesnot containany

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provision for removing a mamber of the Park Board of Trustees from office for the remainder cf his unexpired term. A brief which you submitted with your opinicn request states that the Galveston City Charter contains only one provision on r-al, which reads as follows:
An9 member of the council or elected or appointed

officer oreemplo:raeof the city who shall willfullyviolate any provision of this charter shall be guilty of mn:lfeasance in office and upon conviction thereof shall forfeit his office or employment and may be punished by a fine not exceeding Two Hundred Dollars ($200.00) for each offense.
Galveston City Charter, art. 14. 54. This provision does not authorize the Galveston city council to remove members of the Park Board of Trustees or any other officer at will and without good reason. The city may not employ a method of removal which is not authorized by statute or charter provision. See generally City of Austinv. Thompson, 219 S.W.:Ld57 (Tex. 1949) (citycharterprovisions on fillingvacancies in office must be followedby city council). We answeryour secondquestion :Lnthenegative.
Our answers to your :iirsttwo questions render it unnecessary thatwe addressyour third question.
SUMMARY
The city of G,r:Lveston does not have authority to shorten the two year term of members of the Park Board of Tzustees established by the city pursuant to articlte6081g-1,V.T.C.S. No statute, city ordinance or 'charter provision authorizes the city of Galveston to remove members of the Park Board of TNSteeS .at will andwithout good cause.

JIM MATTOX Attorney General of Texas
JACKHIGHTOWHR FirstAssistantAttorney Gea'eral

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MARY KELLER ExecutiveAssistantAttorney General
ROBERT GRAY SpecialAssistantAttorney General
RICK GILPIN Chairman, Opinion Committee Preparedby SusanL. Garrison AssistantAttorney General
APPROVED: OPINION COMMITTEE Rick Gilpin. Chairman Colin Carl SusanGarrison Tony Guillory JimMoellinger JenniferRiggs Nancy Sutton SarahWoelk

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