February 19. 1975
The Honorable Dolph Briscoe Governor of Texas State Capitol Austin, Texas 78711 Opinion No. H- 534 Re: Length ofterm of members ofthe Board ofNurse Examiners. Dear Governor Briscoe:

You have requested our opinion regarding the construction ofarticle 4513, V. T. C.S., which provides for the appointment ofa Board of **Nurse** Examiners. The statute authorizes the Governor to:

. . . bienniallv appoint a Board ofNurse Examiners to consistof six members. and the term ofoffice of those so appointed shall be two for six years; two for four vears; and twofor two vears. The terms of ’ office for members ofthe Board shall expire on January 31of odd-numbered years, Each member of said Board shall be a registered nurse at least twenty-five years ofage, ofgood moral character and a graduate ofan accredited school ofprofessional nursing, and three members shall have at least three years’ teaching experience in educational work among nurses. One ofthe two personsaFpointed every two years’ shall be aperson with at least three years’ teaching experience in education work among nurses. As you have indicated, the statute appears to have created a Board with two members serving for twoyears; two serving for four years, and two serving for six years, since the word “initial” or “first” has not b&en inserted prior to “term of office, ” and since the usual provision that “members appointed thereafter shall serve for six years” has been omitted.

p. 2408The Honorable Dolph Briscoe page 2 (H- 534)

However, the language causing the confusion, underlined in the foregoing quotation, has existed in the statute since 1931and has never given rise toany question. Traditionally, Board members have served six year terms and we must assume the Legislature was cognizant of **that** fact when, in 1969, itamended the statute but reenacted the identical language. In 1969 this office issued Attorney General Opinion M-433 finding that the 1969 amendment did not abolish the old Board and that its members should continue in office until the expiration ofthe terms for which they were appointed. Inaddition, the language ofthe statute which provides that “one ofthe two persons appointed every twoyears shall be a person with at least three years’ teaching experience in education work among nurses” is rendered meaningless unless the statute is interpreted to provide for six-year terms, with two persons appointed every two years. This conclusion is buttressed by considering the constitutional difficulty that arises ifthe alternative construction is adopted. Article 16, section 30a, ofthe Texas Constitution authorizes the Legislature to establish six-year terms for members of “boards
. . . established bylaw. ” Article 16, section 30, provides that “[t]he duration ofall offices not fixed by this Constitution shall never exceed twoyears. ” Ifarticle 4513 is interpreted as creating a Board towhich two members are appointed for four-year terms, it is clearly violative ofthe constitutiona directive, which proscribes any term of office whose duration is more than two butless than six years.

Itis an established principle thatwhen a **statute** is susceptible to more than one construction, one which would render it constitutional and the other which would render it invalid, the former must prevail. Alobaidi v. State, 433 S.W. 2d440 (Tex. Grim. App. 1968), cert. denied, 393 U.S. 943; Newsom v. State, 372 S.W. 2d 681 (Tex. Grim. App. 1963); Amaimo v. Carter, 212S.W. 2d 950 (Tex. Civ. App. --Beaumont 1948, writ ref., n.r. e.). We therefore hold that the 1969 revision ofarticle 4513 did not alter the term of office ofthe members ofthe Board ofNurse Examiners, and that **term** is for six years.

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The Honorable Dolph Briscoe page 3 (H- 534)

SUMMARY Under article 4513, V. T. C.S., each member ofthe Board ofNurse Examiners is appointed for a term of six years. Very truly yours,



# 0 Attorney General of Texas 

## sL b

DAVID M. KENDALL, First Assistant

C. ROBERT HEATH, Chairman Opinion Committee

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