GENE-L -E ATRTORh’EY

cm TEXAS AUSTIN II.

T-s November 5, 1963
Honorable Edwin E. Merriman Chairman,Texas State Board Opinion No. C-171 of Public Accountancy Re: Constitutionalityand Perry-BrooksBuilding constructionof Article Austin 1, Texas 41a, Sec. 4(a),V.C.S. (PublicAccountancyAct). Dear Mr. Merriman:

You have requested the opinion of this office as to the constitutionalityof Article 41a, Section 4(a), Vernon's Civil Statutes. In the event the questioned provision is held tobe constitutional,you have asked that we construe theprovision with reference to the terms ofoffice to which it applies.

In 1961, the 57th Le lslature enacted Senate Bill No. 100, Chapter 28 ,page countancyAct of 19 5, codified as Article 41a,Vernon's 2 808, amending the Public AcCivil Statutes. Among other amendmentswas a new section numbered 4(a) which reads as follows:

"Sec. 4. (a) A Boardmember, who has served as a member for six (6) consecutiveyears, shallnot be eligible for reappointmentuntil a lapse of two (2)years shallhave occurredbetween the end of the term of his last prior appointment and the beginning of the new term of a new appointment." In the brief accompanyingyour opinion request, it is concluded that the above-quotedprovision Is unconstitutional for the reason that a Board member is a public officer, that the Constitutionof Texas (ArticleXVI) delineates those disqualified from holding public office, and that the provision unconstitutionally Imposes an additional requirement for office. We are forced to disagreewith this conclusion.

There is no doubt that the position of a member of the State Board of Public Accountancy is a position of ublic trust within the terms of Article XVI, Sections 33and fb Texas Constitution. These provisions are aimed at the -827-Honorable Edwin E. Merriman, Page 2. (c-171)

problem of dual office holding. Such a Boardmember Is also a public officerwithin themeaning of the constitutionalprovisions heretofore cited, disqualifying certainpersons from holding public office. But it is going too far to attempt to say that the Legislaturemay impose no standardsupon a Board member other than those imposedby the Constitution.

The cases to which we have been cited in support of the proposition that Section 4(a) Is unconstitutionalall involve qualificationfor an elective office. For such an office on the State level, the qualificationsare imposedby the Constitution,and we certainlyagree that the Legislaturemay not alter them. But such Is not the casewith the various State Boards and administrativeagencies that have been created by the Legislature alone.

The Constitution createsno special standard formembership on the Board of Public Accountancy. Indeed, it does not even make mention of this Board. And the same is true of the large number of professionalboards that have been established by the Legislature. To say that the Legislaturemay imposeno standard of its own volition wouldmean that the Legislature would be unable to require that a member of the Board of Medical Examiners be a doctor, that a member of the Board of Architectural Examiners be an architect, ad infinitum. Membership on these Boards is not a constitutionalright as to which the Legislaturemay not impose a classificationor limitation.

Article XVI, Section 30a, of the Texas Constitutionprovides that the terms of various StateBoar; members may be extended to sixyears. It furtherprovides
. . .vacancies in such offices tobe filled as may be provided by law, and the Legislature shall enact suitable laws to give effect to this section." It is the opinion of this office that the Legislature, in enactingArticle &la, Section 4(a),Vernon's Civil Statutes,was acting in compliancewith ArticleXVI, Section 30a, and did not exceed its constitutionalpowers. With reference now to the secondpart of your o request, re arding the proper constructionof Article

7 zinion Section 4(a la,

,Vernon's Civil Statutes, quoted above, it is the opinion of this office that the provision is clear and unambiguous. This provision went into effect 90 days after May 29, 1961, the date of adjournment of the regular session of the 57th Legislature. Although it has been contended that the provision was meant to be purely prospective in nature,

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Honorable Edwin E. Merriman, page 3. (c-171)

and apply only to thosemembers who commenced six year terms after the effective date of the act, such is not the clear effect of the act.

From the words used at the outset of Section 4(a), the retroactive effect Is Patent: as a member for six (6 "A Board member, who has served consecutiveyears, . . .% (emphasis supplied). The general rule is that a statute is always construed to operateprospectively only unless a contrary construction is evidentlyrequiredby plain and unequivocal language in the statute. GovernmentPersonnelMutual Life Insurance Co. v. Wear, 151 T!ex.454 251 S W 2d 525 (1952) S h plain and unequivocal language'ispreiek in this ena&me%. It must furtherbe noted that, were the construction to be otherwise, then the statutewould have no practical effect until six years after its effective date.

We must further note that, while the statute Is retroactive in Its effect, it is not in violation of Article I, Section 16, Texas Constitution, since it does not operate to impair or destroy any vested right. City of FortWorth v. Morrow, 284 S.W. 274 (Tex.Civ.App.1926, error ref.).

It is therefore the opinion of this office that any member of the State Board of Public Accountancywho has served as suchmember for six (6) consecutiveyears, regardless of the date of commencementof such service, is not eligible for reappointmentuntil a lapse of two (2)years shall have occurred between the end of the term of his last prior appointment and the beginning of the new term of a new appointment.

SUMMARY

Article 41a, Section 4(a),Vernon's Civil Statutes, is constitutional. Article 41a, Section 4(a),Vernon's Civil Statutes, is interpreted to mean that any member of the State Board of Public Accountancywho has served as such a member for six (6) consecutiveyears, regardless of the date of commencementof such service, is not eligible for reappointment until a lapse of two (2)

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Honorable Edwin E. Merriman, page 4. 

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years shall have occurredbetween the end of the term of his last prior appointment and the beginning of the new term of a new appointment.

Yours very truly, WAGGONER CARR Attorney General 

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Assistant ML&:ms:zt

APPROVED: OPINION COMMITTEE W. V. Geppert, Chairman JackNorwood Brady Coleman Jack Goodman W. 0. Shultz APPROVED FOR THE ATTORNEY GENERAL BY: Stanton Stone

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