### TEE ATTORNEY GENERAL OF TEXAS
June 5, 1987

Mr. Bob E. Bradley ExecutiveDirector Texas State Board of PublicAccountancy 1033La Posada, Suite 340 Austin,Texas 78752 OpinionNo. JM-720
Re: Whether section 4(d) of article 41a-1. V.T.C.S., makes a member of the State Board of PublicAccountancy ineligiblefor reappointment
Dear Mr. Bradley:
You ask whether a member of the Board of Public Accountancy is barred from reappointmrnt by the following provision of The Public AccountancyAct of 1979:

A board member who has served as a member for six consecutive years shall not be eligible for reappointment until two years shall have elapsed between the end of the term of his last prior appointmentand thebeginning of the term of anew appointment.
V.T.C.S. art. 41a-1. 54(d).SeeAttorneyGeneralOpinion C-171 (1963). The term of office of a board member is six years. V.T.C.S. art. 41a-1, 14(a). The board member you inquire aboutwas appointedby the governor to the Board of Public Accountancy on May 12. 1981, to a term ending on January 31. 1987. Thus, he had served as a board member for iess than six consecutiveyearswhen his term came to an end on January 31, 1987. Section 4(d) of article 41a-1, V.T.C.S., did not therefore render him ineligible for reappointment upon the expiration of his term. The board member's term has already ended, and he has continued to serve in a holdover capacity as required by article XVI, section 17. of the Texas Constitution. We will considerwhether this service will affect his eligibility for reappointment. Article XVI. section 17, of theTexas Constitutionprovides as follows:

All officers within this State shall continue to perform theduties of their officesuntil their successors shallbe duly qualified.
Tex. Const. art. XVI, 517. See also V.T.C.S. art. 41a-1, 54(a) (each board member shall continue until a succsssor is appointed). The purpose of section 17 is "to prevent a break in the public serviceand

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to insure continuity by requiring all officers, after their respective terms of office had expired" to continue to serve until their successors had qualified. Underwood v. Childress Independent School District, 149 S.W. 773, 774 (Tex. Civ. App. - Amarillo 1912, writ dism'd). While the officer is holding over, there is a vacancy in office which may be filled by the appropriate authority. State v. Catlin, 19 S.W. 302 (Tex. 1892).
In our opinion, the "six consecutive years" in article 41a-1, section 4(d),must be served in a sixyear term. The gap of two years requiredbetween six year terms servedby one person is measured from the end of one term to the beginning of another, suggesting that the legislature had in mind a six year term, and not six years served partially as an officeholderand partiallyas theholdover occupant of a legally vacant office. Moreover, the prohibition in section 4(d) was adopted only two years afterboard members' termswere lengthened from two to six years, with a transitionperiod requiring two or four year terms for someboardmembers. Acts 1961, 57thLeg., ch. 289, 53, at 608, 609; Acts 1959, 56th Leg., ch. 493, 91, at 1082. Thus, the legislaturemay have used the language "six consecutiveyears" instead of "a sixyear term" to includeboardmembers who had served six years in two or three terms. Serviceby the boardmember after January 31, 1987. in a holdover capacity will not be considered in determining whether hemay be reappointedto theboard. If the board member is reappointed, he will hold office for a term beginning on February 1, 1987, and ending on January 31. 1993. Illstenure of office during the second term would be six years, whether he was reappointed on February 1, 1987. or afterMay 12, 1987 following service in a holdover capacity. Our conclusion that the board member's service in a holdover capacity does not contribute to his "six consecutive years” serviceprovides for consistent treatment of board members. Those whose reappointment is delayed through the governor's inaction will be treated consistently with those who are reappointedupon the expirationof their terms. Our construction thus reachesa fair resultwithoutundermining thepurposes of section 4(d) of article 41a-1,V.T.C.S. SUMMARY

Section 4(d) of article 41a-1,V.T.C.S.. The Public Accountancy Act of 1979, applies to board members who have served a full six year term and bars them from reappointment to the board until twoyears have elapsed from the end of that term.

JIM MATTOX Attorney General of Texas

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JACK HIGHTOWEB First AssistantAttorney General
MARY KELLER ExecutiveAssistantAttorney General JUDGE ZOLLIE STEAKLEY SpecialAssistantAttorney General RICK GILPIN Chairman,OpinionCommittee Preparedby SusanL. Garrison AssistantAttorneyGeneral

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