# The Attorney General of Texas
December 31, 1982 MARK WHITE Attorney General

Supreme Court Building P. 0. BOX 12548 Austin, TX. 78711. 2548 5121475-2501 Telex 910/674.1367 Telecopier 5121475.0266

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200 Main Plaza, Suite 400 San Antonio. TX. 78205.2797 5121225-4191

An Equal OppOrtunitYI Affirmative Action Employer Mr. Oscar Reeder, Chairman Texas State Board of Public Accountancy 3301NorthlandDrive Suite 600 Austin,Texas 78731
DearMr. Reeder: OpinionNo. MJ-562
Re: Constr"ction of section 4(g) of article 41a-1,V.T.C.S. concerning attendance and vacancies of board members

You ask severalquestions concerning the constructionof section 4(g) of the Public Accountancy Act of 1979, article 41a-1, V.T.C.S. This sectionreads as follows:

(g) Each member of the board shall be present for at least one-half of the regularly scheduled boardmeetingsheld eachyear. Failure of a board member to meet this requirement automatically removes the member from the board and creates a vacancy on theboard.
You first ask whether article XV, section 7 of the Texas Constitution imposes procedural requirements upon the removal of a boardmember for absenteeism. ArticleXV, section 7 providesas follows:

The Legislature shall provide by law for the trial and removal from office of all officers of this State, the modes for which have not been provided in this Constitution. Members of the Texas State Board of Public Accountancy are officers. See V.T.C.S. art. 41a-1, 094(a), 5(b); see also Attorney General opinionMw-415 (1981). It is well established thatwhen the constitutionprescribes 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);Knoxv. Johnson,

- Austin 1940, writ ref'd), automatic removal. the removal must be pursuant to a trial, which 141 S.W.2d 698 (Tex.Civ.Api. Although the statute does speak of

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entails the judicial investigationand determinationof issuesbetween 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 informus that in each casewhere a member of your board has been unable to attend more than 50% of the scheduledmeetings 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 appointedand qualifies, theboard 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 alsoAttorneyGeneralOpinion 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 infractionsmay 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 appointa replacementwhen the office isvacated.
You next ask the followingquestion:

What constitutes being 'present' at a board meeting? If the meeting is scheduled for two or threedays, does attendance for one day constitute being presentas contemplatedby 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 boardmember 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 bienniumbeginning September 1, a fiscalyear beginning September 1, a calendaryear beginningJanuary 1, or each 365 daysbeginningwith the date of appointmentof a particularmember. 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 - -

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construction to be calendaryear. See V.T.C.S. art. 23(16). Where a term is not defined in a statute,courts will determine legislative intentby relyingon the language the legislatureused, and will apply the "ordinary signification" to statutory language. Beef Cattle Companyv, 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" constitutesa quorum for the transactionof business. The quorum of a board remainsat all times a majority of the authorizedmembership,even though thereare 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 - - statutewhich excepts theboard from this general rule. Compare Educ. Code 523.18. Of course,board members who have merely tendered their resignationswill continue to serve pursuant to article XVI, section 17 of the constitutionuntil the governorappointsa successor. It is theirduty to attend suchmeetingsuntil the successorqualifies.
SUMMARY Section 4(g) of article 41a-1, V.T.C.S., requires thatmembers 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 JOHNW. FAINTER,JR. FirstAssistantAttorney General RICHARDE. GRAY III ExecutiveAssistantAttorneyGeneral

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Mr. Oscar Reeder - Page 4 (MW-562)

Preparedby SusanL. Garrison AssistantAttorney General APPROVED: OPINION COMMITTEE SusanL. Garrison,Chairman Rick Gilpin Jim Moellinger BruceYoungblood

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