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

receiptof your letter of July 31, 1939, in which you requestan opinionof this Department on the question

of whether or not the Governor of Texas has the authority to appointa 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

JamesV. Allred, by virtue of the authority granted

him under Article7009, RevisedCivil Statutes

of 1925, as amended by Chapter 131, Acts of the 45th Legislature, appointed

L. J. Wardlaw as a member of the Liveetock Sanitary

Commissionand 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 officeexpiredon 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 namedMr. Loventhal Chairman

of the Commission. Thus the question arisesas to whetherthe Chairman of the Livestock

Sanitary

**CO~iSBiOn** is L. J. Wardlaw or Roy Loventhal, and that issue appearsto 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 agreewith you in the following conclusions

of law: 1. When the Governor's appointment

is dependent

upon concurrence of the Legislature, an officercannot

be removedsummarily by the Governor.

2. When an office is createdfor a definite term; the appointee can only be removedfor cause established by court decree.- .

Honorable

L. J. Wardlaw,

page 2 (O-1210)

3. An office is not property within the constitutionalprovision8againstdepriving personsof property. 4. The expiration

of EZI Incumbent'e

term of office creates a vacancy.

It is well settledthat an officer who holds his office for a term fixedby law cannot be removed

at the pleasure

of the executive and that an appointee holding

an officeunder such conditions can only be removedfor cause established at a hearing

at which he is given definite notice and ample opportunity to appear and presenthis defense. See Upshaw YE. Booth,37 Tex. 126; Ridgeway vs. City of Fort Worth, 243 9. W. 745, and authorities thereincited;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 SenateCommittee on Eominations

of the Governor,AttorneyGeneral JEIEBV. Allred held that neitherthe Governor nor eny of his successors had any power over an appointment once been made and submitted to the Senate for approval unless such powerwas exercised

with Senatorial

acquiescence. In this connection, Attorney

General Allred said: "The executive power invested

in the Governor

is continuousand knows neither**names,** persons, or terms of office." Article 7009, RevisedCivil Statutes of 1925, as amended by Acts of 1937, 45th Legislature, p. 253, Ch. 131, reads as follows: "The Governor shallwithinthirty (30) days after this Act becomes effective by, and with the advice and consentof the Senateappoint three (3) citizens of the State, as a Live Stock Sanitary Commission

of the State of Texas. The Governorshalldesignate 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 activelyengaged in said businessfor at least five (5) years next preceding

the date of hiB appointment. One of eaid Commissioners

shallbe appointed

from the West, one from the South; snd one from the Easternportionof Texas. The word 'Commission' as used in this Chapter shallmean the Live Stock Sanitary Commission

of the State of Texas. That beginning

with the appointment of said Commissioners, the term of office of the membersof the Commission shall be for a period of six (6) years, exceptthat those first appointed

shallbe appointed

for two (2), four (h), and six (6) years, and that they shall serveuntil 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 shallbe filled in the same manner as hereinbefore provided

and shallbe 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 Articledoes not providethat the Governorshallappoint a Chairmau of the Commission and two Commissioners. The only expressionrelative to the Chairmanship of the Livestock

Sanitary

Commission

is the statement

**that** "the Governor**shall** designate one suchmemberas ChairIJBU. " After all appointments to the Commission

have been made and approvedby the Senate the Governor may then designate one member of the Commission

as Chairman

and such designation does not requirethe advice and consent

0r the Senate. Virtually the same provision is found in Article6664, relating to the appointment of the State HighwayCommission. The customand established practice

with reference

to the designation of the Chairman of the HighwayCommission **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 purposeof making a new appointment upon the expiration of the incumbent's

term. The law as reflected by this opinionis undisputed but the absolute prerequisite

to euch a holding is the existence of a definite

term of office. In the absenceof constitutional or Statutory restraint,

the power to appointan officercarries 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 removalof the incumbent the power of appointment necessarily carries

with it the power of removal. See 34 Tex. Jur. 394, para. 42; Keenanvs. Perry, 24 Tex. 253; Weeper vs. Stewart, 66 S. W. (2d) 812. The following

statement

is from 46 CorpusJurie p. 964, paragraph 98: "Wherethe term of office is not fixedby law, the officeris regarded as holding

at the will of the appointing power,even though the appointing power attempts

to fix a definite

term; and an officerremovable at the pleasure of the appointing power has, in the strict meaningof the word, no 'term' of office. A constitutional provision that terms of officenot fixedby the constitution shall not exceeda~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.; Child6vs. State,33 L.R.A. 563, Okla. Ct. of Criminal Appeals;

Wright vs. Gamble, 35 L.R.A.866, GeorgiaSup. 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

pointedout Article 7009 does not mqnlrethatthe Senateapprorethe Govemor'n dmigrration of the Chairman of the Livestock Sanitary Cormmisrion.

The Iaglrlature

hse by the proviaiancl of thie Articlegiyen to the Governor the Bole power of appointmt. lo attempt is made to provide for the method of removalof euch chairpan nor does any provision appear fixingthe term of officeof the Chaim of the Liveatock.Sanitary ConUseion. It is the opinionof this Department that the power to deeignate the Chairman

of the Livestock

Sanitary Colmaission

of Texas lies solely withinthe province of the Governor

and can be exercised

at wil& wlthoutthe advice and consentof the Senate and withoutregardto previous designations

made by another

Governor.
Yours very truly
ATTORNEYGEXERALOFTEXAS

By /s/ Ross Carlton

Ross Carlton Assistant
RC:B:IM AppRovED m 13, 1939 /s/ GeraldC. Mann
ATTomEY GEXEML OF TEKAS

APPROVED OPINION COI-M~EE BY /s/ B.W.B. CHAlRMAH

O.K. QlL

‘,