-E ATRTORh’EY GENE-L 

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: Constitutionality and 

Perry-Brooks Building construction of Article 

Austin 1, Texas 41a, Sec. 4(a), V.C.S. 

(Public Accountancy Act). 

Dear Mr. Merriman: 

You have requested the opinion of this office as 

to the constitutionality of Article 41a, Section 4(a), 

Vernon's Civil Statutes. In the event the questioned 

provision is held to be constitutional, you have asked 

that we construe the provision with reference to the terms 

ofoffice to which it applies. 

In 1961, the 57th Le lslature enacted Senate Bill 

No. 100, Chapter 28 , page 

countancy Act of 19 5, codified as Article 41a, Vernon's 

2 808, amending the Public AcCivil Statutes. Among other amendments was a new section 

numbered 4(a) which reads as follows: 

"Sec. 4. (a) A Board member, who 

has served as a member for six (6) consecutive years, shall not be eligible 

for reappointment until 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." 

In the brief accompanying your opinion request, it 

is concluded that the above-quoted provision Is unconstitutional for the reason that a Board member is a public officer, that the Constitution of Texas (Article XVI) delineates those disqualified from holding public office, and 

that the provision unconstitutionally Imposes an additional 

requirement for office. We are forced to disagree with 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 33 and fb 

Texas Constitution. These provisions are aimed at the 

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Honorable Edwin E. Merriman, Page 2. (c-171) 

problem of dual office holding. Such a Board member Is also a 

public officer within the meaning of the constitutional provisions heretofore cited, disqualifying certain persons from 

holding public office. But it is going too far to attempt to 

say that the Legislature may impose no standards upon a Board 

member other than those imposed by the Constitution. 

The cases to which we have been cited in support of 

the proposition that Section 4(a) Is unconstitutional all involve qualification for an elective office. For such an office on the State level, the qualifications are imposed by the 

Constitution, and we certainly agree that the Legislature may 

not alter them. But such Is not the case with the various 

State Boards and administrative agencies that have been created 

by the Legislature alone. 

The Constitution creates no special standard for membership 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 professional boards that have been established 

by the Legislature. To say that the Legislature may impose no 

standard of its own volition would mean 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 constitutional right as to which the 

Legislature may not impose a classification or limitation. 

Article XVI, Section 30a, of the Texas Constitution provides that the terms of various State Boar; members may be extended to six years. It further provides . . . vacancies in 

such offices to be 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 enacting Article &la, Section 4(a), Vernon's Civil 

Statutes, was acting in compliance with Article XVI, Section 

30a, and did not exceed its constitutional powers. 

With reference now to the second part of your o 

request, re arding the proper construction of Article 

7 

z 

inion 

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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.* 

I 

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

and apply only to those members 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 

P 

atent: 

as a member for six (6 

"A Board member, who has served 

consecutive years, . . .% (emphasis 

supplied). The general rule is that a statute is always construed to operate prospectively only unless a contrary construction is evidently required by plain and unequivocal language in the statute. Government Personnel Mutual Life Insurance Co. v. Wear, 151 T!ex. 454 251 S W 2d 525 (1952) S h 

plain and unequivocal language'is preiek in this ena&me%. 

It must further be noted that, were the construction to be 

otherwise, then the statute would 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 Fort Worth 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 Accountancy who has 

served as such member for six (6) consecutive years, regardless of the date of commencement of such service, is not 

eligible for reappointment until 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 Accountancy who has 

served as such a member for six (6) 

consecutive years, regardless of 

the date of commencement of such 

service, is not eligible for reappointment until a lapse of two (2) 

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‘. 

Honorable Edwin E. Merriman, page 4. (C-171) 

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. 

Yours very truly, 

WAGGONER CARR 

Attorney General 

~~&u~ 

ML&:ms:zt Assistant 

APPROVED: 

OPINION COMMITTEE 

W. V. Geppert, Chairman 

Jack Norwood 

Brady Coleman 

Jack Goodman 

W. 0. Shultz 

APPROVED FOR THE ATTORNEY GENERAL 

BY: Stanton Stone 

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