Honorable L. J. Wardlaw, Commissioner 

Livestock Sanitary Commission 

2005 W. T. Waggoner Building 

Fort Worth, Texas 

Dear Sir: opinion Ho. O-1210 

Re: Chairmanship of Livestock 

Sanitary Commission 

We acknowledge receipt of your letter of July 31, 1939, in 

which you request an opinion of this Department on the question of whether 

or not the Governor of Texas has the authority to appoint a Chairman of 

the Livestock Sanitary Commission to supersede the Chairman appointed 

by a previous Governor for a term of office of six years, only two of 

which have expired. 

The following statement of the fact situation is condensed 

from your letter, and we state It here as the basis upon which this opinion will be rendered. On February 24, 1937, Governor James V. Allred, 

by virtue of the authority granted him under Article 7009, Revised Civil 

Statutes of 1925, as amended by Chapter 131, Acts of the 45th Legislature, appointed L. J. Wardlaw as a member of the Liveetock Sanitary Commission and designated him as Chairman of the Commieaion. This appointment was for a term of six years. The other two appointees to the Commission were Roy Jackson for a term of two years, and R. H. Martin for 

a term of four years. Said Roy Jackson's term of office expired on May 

21, 1939, thereafter Governor W. Lee O'Daniel appointed Roy Loventhal 

as a member of the Commission to serve for a period of six years, and 

named Mr. Loventhal Chairman of the Commission. Thus the question 

arises as to whether the Chairman of the Livestock Sanitary CO~iSBiOn 

is L. J. Wardlaw or Roy Loventhal, and that issue appears to be the only 

one which this Department is called upon, at this time, to answer. 

We have examined the authoritiee submitted in your brief and 

we agree with you in the following conclusions of law: 

1. When the Governor's appointment is dependent upon concurrence of the Legislature, an officer cannot be removed summarily by the 

Governor. 

2. When an office is created for a definite term; the appointee 

can only be removed for cause established by court decree. 
- . 

Honorable L. J. Wardlaw, page 2 (O-1210) 

3. An office is not property within the constitutional provision8 against depriving persons of property. 

4. The expiration of EZI Incumbent'e term of office creates 

a vacancy. 

It is well settled that an officer who holds his office for 

a term fixed by law cannot be removed at the pleasure of the executive 

and that an appointee holding an office under such conditions can only 

be removed for cause established at a hearing at which he is given definite notice and ample opportunity to appear and present his defense. 

See Upshaw YE. Booth, 37 Tex. 126; Ridgeway vs. City of Fort Worth, 243 

9. W. 745, and authorities therein cited; Dorenfield vs. State, 73 S. W. 

(2~3) 86; Honey vs. Graham, 39 Tex. 11. 

On January 21, 1933, in an opinion directed to Honorable Will 

1. Martin, Chairman of the Senate Committee on Eominations of the Governor, Attorney General JEIEB V. Allred held that neither the Governor 

nor eny of his successors had any power over an appointment once been 

made and submitted to the Senate for approval unless such power was exercised with Senatorial acquiescence. In this connection, Attorney General Allred said: "The executive power invested in the Governor is continuous and knows neither names, persons, or terms of office." 

Article 7009, Revised Civil Statutes of 1925, as amended by 

Acts of 1937, 45th Legislature, p. 253, Ch. 131, reads as follows: 

"The Governor shall within thirty (30) days after 

this Act becomes effective by, and with the advice and 

consent of the Senate appoint three (3) citizens of the 

State, as a Live Stock Sanitary Commission of the State 

of Texas. The Governor shall designate one such member 

as a Chai-. Each commissioner shall give a bond payable to the State of Texas in the sum of Ten Thousand 

Dollars ($10,000) to be approved by the Comptroller. 

Each Commissioner shall be a bona fide resident of and a 

practical live stock raiser in the community from which 

he may be appointed, and shall have been actively engaged in said business for at least five (5) years next 

preceding the date of hiB appointment. One of eaid Commissioners shall be appointed from the West, one from 

the South; snd one from the Eastern portion of Texas. 

The word 'Commission' as used in this Chapter shall mean 

the Live Stock Sanitary Commission of the State of Texas. 

That beginning with the appointment of said Commissioners, 

the term of office of the members of the Commission shall 

be for a period of six (6) years, except that those first 

appointed shall be appointed for two (2), four (h), and 

six (6) years, and that they shall serve until their 
. . - 

Honorable L. J. Wardlaw, page 3 (O-1210) 

successors have been appointed and have duly qualified. 

All vacancies which shall occur in the Commission for any 

reason shall be filled in the same manner as hereinbefore 

provided and shall be for the unexpired term." 

Under the provisions of this Article It cannot be disputed 

that the Governor has no power to remove a commiseioner once he has been 

appointed and approved by the Senate. It will be noted, however, that 

this Article does not provide that the Governor shall appoint a Chairmau of the Commission and two Commissioners. The only expression relative to the Chairmanship of the Livestock Sanitary Commission is the 

statement that "the Governor shall designate one such member as ChairIJBU. " After all appointments to the Commission have been made and approved by the Senate the Governor may then designate one member of the 

Commission as Chairman and such designation does not require the advice 

and consent 0r the Senate. Virtually the same provision is found in 

Article 6664, relating to the appointment of the State Highway Commission. The custom and established practice with reference to the designation of the Chairman of the Highway Commission has been to recognize 

the sole and unrestricted power of the Governor. 

In your brief you cite the case of Tennyson vs. State, 6 S. W. 

(2d) 1021, as authority for the statement that a vacancy in an office 

exists for the purpose of making a new appointment upon the expiration 

of the incumbent's term. The law as reflected by this opinion is undisputed but the absolute prerequisite to euch a holding is the existence 

of a definite term of office. In the absence of constitutional or Statutory restraint, the power to appoint an officer carries with it as an 

incidental power the right to remove the appointee at will. Where the 

duration or term of office la not fixed by law and no provision la made 

for the removal of the incumbent the power of appointment necessarily 

carries with it the power of removal. See 34 Tex. Jur. 394, para. 42; 

Keenan vs. Perry, 24 Tex. 253; Weeper vs. Stewart, 66 S. W. (2d) 812. 

The following statement is from 46 Corpus Jurie p. 964, paragraph 98: 

"Where the term of office is not fixed by law, the 

officer is regarded as holding at the will of the appointing power, even though the appointing power attempts to 

fix a definite term; and an officer removable at the pleasure of the appointing power has, in the strict meaning of 

the word, no 'term' of office. A constitutional provision 

that terms of office not fixed by the constitution shall 

not exceed a~specified time does not enlarge the duration 

of an office'held at the pleasure of the executive." 

We cite the following cases in support of the general rule 

above quoted: Touart VS. State, 56 So. 211, Ala. Sup. Ct; Greene vs. 

Owen, 34 6. E. 424, A. Carolina Sup. Ct.; Child6 vs. State, 33 L.R.A. 

563, Okla. Ct. of Criminal Appeals; Wright vs. Gamble, 35 L.R.A. 866, 

Georgia Sup. Ct.; Quernheine vs. Asselmeier, et al, 129 Ii. E. 828, Ill. 

sup. ct. 
Honorable L. J. Wardlaw, page 4 (O-1210) 

As we have already pointed out Article 7009 does not mqnlrethatthe Senate approrethe Govemor'n dmigrration of the Chairman 

of the Livestock Sanitary Cormmisrion. The Iaglrlature hse by the proviaiancl of thie Article giyen to the Governor the Bole power of appointmt. 

lo attempt is made to provide for the method of removal of euch chairpan 

nor does any provision appear fixing the term of office of the Chaim 

of the Liveatock.Sanitary ConUseion. It is the opinion of this Department that the power to deeignate the Chairman of the Livestock Sanitary 

Colmaission of Texas lies solely within the province of the Governor and 

can be exercised at wil& wlthout the advice and consent of the Senate 

and without regard to previous designations made by another Governor. 

Yours very truly 

ATTORNEY GEXERALOFTEXAS 

By /s/ Ross Carlton 

Ross Carlton 

Assistant 

RC:B:IM 

AppRovED m 13, 1939 

/s/ Gerald C. Mann 

ATTomEY GEXEML OF TEKAS 

APPROVED 

OPINION 

COI-M~EE 

BY /s/ B.W.B. 

CHAlRMAH 

O.K. 

QlL 

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