JIM MA-i-l-OX 

Attorney General 

Supreme Court Building 

P. 0. BOX 12548 

Austin, TX. 78711. 2548 

512/475-2501 

Telex 9101874.1367 

Telecopier 51214750266 

714 Jackson. Suite 700 

Dallas. TX. 752024508 

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El Paso, TX. 79305-2793 

915/533-3484 

1001 Texas. Suite 700 

Houston, TX. 77002-3111 

713!223-5958 

606 Broadway. Suite 312 

Lubbock, TX. 79401.3479 

806/747-5238 

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McAllen, TX. 78501-1885 

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200 Main Plaza, Suite 400 

San Antonio, TX. 782052797 

5121225.4191 

An Equal OpportunitYI 

Affirmative Action Employer 

The Attorney General of Texas 

)ecamber 2, 1985 

Honorable Lloyd Cxiss 

Chairman 

Committee on Labor, and Employment 

Relations 

Taxas House of RsFKeSentetiVaS 

P. 0. Box 2910 

Austin, Texas 78769 

Opinion No. JM-389 

Ret Whether the city of 

Galveston may remove persons 

appointed to a city board, 

and related questions 

Dear Representative Criss: 

You ask whetF.er the city of Galveston may enact a valid ordinance 

which changes the terms of office for members of the city's boards 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 s home rule city. You state that the Galveston city 

code initially provided a two year 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 

present members 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. Ycsu Btate that the city of Galveston wishes to know 

whether it can :restNcture the terms of office of city boards, 

specifically the lPark Board of Trustees, to provide for uniform 

transition of membership. You ask the following questions: 

1. Toes the city of Galveston have the 

authority to shorten terms of office of the Park 

Board o,E TNSteeS in order to effectuate a reStNCtWing of the terms of office of all city 

offices? 

2. If not, does the city of Galveston have the 

authority, implied or expressed, to remove 

appointt,d board members at will and without 

showing good cause? 

p. 1780 
Eonorable Lloyd Criss - Page 2 (JM-389) 

3. Does article XVI, section 27 of the Texas 

Constitution appl,y to 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 

terms beginning with their appointment date? 

As a home Nle city, Galveston has full power of local selfgovernment. It may enact suy charter provision or city ordinance not 

inconsistent with the const.itution or general law. Tex. Const. art. 

XI, 55; V.T.C.S. arts. 1165, 1175, 1176; State ex rel. Rose v. City of 

La Porte, 386 S.W.2d 782 ('Iex. 1965); City of Eouston v. 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 

governing body of such city, one of whom shall be 

a member of such governing body. Such tNstees 

shall serve for ;rterm of two years 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 'trustees first appointed shall 

serve for initia:: terms of one year, such initial 

terms to be des:;f;nated by the governing body of 

such city. . . . (Emphasis added). 

With the exception of the initial one year term for part 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 

[tlhis Act shall be cumulative of all other laws 

and of all Home-Rule Charter provisions, but this 

p. 1781 
Honorable Lloyd Criss - Page: 3 (m-389) 

. . 

Act shall take precedence in the event of conflict. 

The term of office and commencement date established by 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 

legislative direction. Texas Youth Council may 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 appointed board members at will and without showing good cause. 

A home rule city may remove a city officer pursuant to applicable 

statutes and charter provisions. For example, the Housing Authorities 

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 

authorizing a city to remove an officer by recall election. Banner v. 

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 

shall be r-able at the vi11 of the city commission on thirty days' 

notice." City of San Benils) 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 

numerous boards and agencies affected by the new 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 it vacant). Art::cle 6081g-1, V.T.C.S., does not contain any 

p. 1782 
Honorable Lloyd Criss - Pags 4 (J-M-389) 

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 ore emplo:rae of the city who shall willfully violate 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 

Austin v. Thompson, 219 S.W.:Ld 57 (Tex. 1949) (city charter provisions 

on filling vacancies in office must be followed by city council). We 

answer your second question :Ln the negative. 

Our answers to your :iirst two questions render it unnecessary 

that we address your 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 articlte 6081g-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 and without good cause. 

JIM MATTOX 

Attorney General of Texas 

JACK HIGHTOWHR 

First Assistant Attorney Gea'eral 

p. 1783 
Honorable Lloyd Criss - Page 5 (3-i-389) 

MARY KELLER 

Executive Assistant Attorney General 

ROBERT GRAY 

Special Assistant Attorney General 

RICK GILPIN 

Chairman, Opinion Committee 

Prepared by Susan L. Garrison 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

Rick Gilpin. Chairman 

Colin Carl 

Susan Garrison 

Tony Guillory 

Jim Moellinger 

Jennifer Riggs 

Nancy Sutton 

Sarah Woelk 

p. 1784