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 

1607 Main St., Suite 1400 

Dallas. TX. 75201.4709 

2141742.8944 

4824 Alberta Ave., Suite 160 

El Paso, TX. 79905-2793 

915/533-3484 

1220 Dallas Ave., Suite 202 

Houston, TX. 77002.6986 

713/650-0666 

a06 Broadway, Suite 312 

Lubbock. TX. 79401.3479 

8061747-5238 

4309 N. Tenth, Suite B 

McAlle”, TX. 76501-1685 

5121682-4547 

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 

3301 Northland Drive 

Suite 600 

Austin, Texas 78731 

Dear Mr. Reeder: 

Opinion No. 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 several questions concerning the construction of section 

4(g) of the Public Accountancy Act of 1979, article 41a-1, V.T.C.S. 

This section reads as follows: 

(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 

member to meet this requirement automatically 

removes the member from the board and creates a 

vacancy on the board. 

You first ask whether article XV, section 7 of the Texas 

Constitution imposes procedural requirements upon the removal of a 

board member for absenteeism. 

Article XV, section 7 provides as 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 

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, 

- 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 

p. 2060 
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 
- 

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