THEA~TORNEYGENERAL 

OF TEXAS 

AUSTIN. Texas 78711 

Honorable L. B. Davis, Jr. Opinion No. H-1065 

President 

State Board of Morticians 

1513 S. Interstate 35~ 

Austin, Texas 78741 

Re: Continued service on 

State Board of Morticians 

by member who has changed 

employment. 

Dear Mr. Davis: 

You advise that two members of your board were appointed 

by the Governor on the same date and that both were confirmed 

by the Senate. One was employed at the time by a corporation 

owning and controlling more than three funeral establishments 

in Texas, and the other was the proprietor of a single funeral 

establishment. Both appointees qualified and began their Board 

service. Later, the sole proprietor sold his business and 

became an employee of the same corporation for which the other 

board member works. You ask if either of them is now disqualified to serve on the board. 

The State Board, of Morticians is created by section 2A of 

article 4582b, V.,T.C.S. In part it reads: 

There is hereby created the State Board 

of Morticians . . . consisting of six (6) 

members who shall be citizens of the 

United States and residents of the State 

of Texas, and shall be licensed embalmers 

and funeral directors in the State of 

Texas. . . . The members of said Board 

shall be appointed by the Governor, by 

and with the consent of the Senate for a 

period of six (6) years. . . . No member 

shall be appointed to the Board who is an 

officer or employee of a corporation or 

other business entity controlling or operating directly or indirectly, more than 

three funeral establishments, if another 

member of the Board is also an officer 

or employee of the same corporation or 

other business entity. 

p. 4566 
Honorable L. B. Davis, Jr. - Page 2 (H-1065) 

It has been suggested to us that neither man is disqualified by article 458233 from continued service because 

the statute speaks of particular qualifications only for 

appointment, not for service. 

In Attorney General Opinion H-578 (1975) we were asked 

whether a member of the Board of Private Investigators and 

Private Security Agencies who was statutorily required at the 

time of his appointment to represent a certain profession could 

continue to serve on the board after he left that profession. 

We characterized the question as "whether or not a person meeting 

the qualifications for a particular office at the time of his 

appointment but later giving up those qualifications nevertheless may continue in office." We think the present question is 

essentially the same. 

Citinq Phaqan v. State, 510 S.W.2d 655 (Tex. Civ. App. -- 

Ft. Worth i974, writ r mn.r.e.1, Whitemarsh v. Buckley, 324 

S.W.2d 298 (Tex. Civ. ADD. -- Hous ton 1959, no writ), and 

Attorney General Opinion-WW-1387 (1962), we said in H-578: 

Surely, the Legislature, in specifically 

calling for varying qualifications for 

members of [the] Board, intended for 

those qualifications to be represented 

on the Board. And, following the dictates 

of the Phagan case, when a person no 

longer meets the qualifications for a 

position of the Board, it must be held 

that he loses his right to serve and the 

position is vacated. 

We reaffirm that conclusion here. The Legislature is 

empowered to enact provisions as to eligibility for statutory 

offices. Oser v. Cullen, 435 S.W.2d 896 (Tex. Civ. App. -- 

Houston~ [lst Dist.1 1969, writ ref'd w.0.j.). It is plain 

that the Legislature wished to prevent Mortician Board domination by representatives of any single chain of establishments. 

If the H-578 rationale did not apply, there would be nothing to 

prevent all members of the Board from becoming employees of a 

single corporation owning or controlling multiple funeral establishments. Cf. Attorney General Opinion H-4 (1973). - 

You have also asked which member is to be considered disqualified, and whether the Board has any jurisdiction or control 

of its own membership as to the disqualification of the members. 

In our opinion, the board member who changed his status 

suffers the consequences of the change. At the time he became 

p. 4567 
Honorable L. H. Davis, Jr. - Page 3 (H&1065) 

an empioyee of the corporation there was another employee of 

that corporation already sitting on the Board. The member 

whose status bhanged so as to become such an additional representative of that corporation thereby Vacated his office. 

Attorney General Opinion H-578 (1975). See 47 Tex. Jur.~ 2d 

Public ,Officers S 44. 

You also ask whether the State Hoard of Morticians has any 

jurisdiotion or control over the qualifidations of its own 

memebrs L Section 2A of article 4582b authorizes the Governor 

to remove any Board member "for neglect of duty, incompetence, 

or fraudulent or dishonest conduct." It 

to remove any member "whose license 

require;u;;;aovffnor 

to practice 

recting and/or embalming has been voided, revoked or suspended." 

No portion of article 458213, or any other statute, grants to 

the Hoard itself any jurisdiction over the qualifications of 

its members. It is well established that 

an administrative agency . . . has only 

such powers as are expressly granted to 

it by statute together with those necessarily implied from the authority conferred or duties imposed. 

Staufferv. City of San Antonio, 344 S.W.2d 158, 160 (Tex. 1961). 

It is therefare our opinion that the State Board of Morticians 

has no jurisdiction or control over the qualifications of its 

own members. See Attorney General Opinion H-226 (1976). - 

SUMMARY 

A member of the State Board of Morticians 

who changes employment so as to become an 

employee of a corporation that owns and 

operates more than three funeral establishments and that already employs another member of the Board, vacates his Board membership by becoming so employed. Qualifications 

for membership on the State Board of Morticians have been set by the Legislature and 

are not within the control of the Board itself. 

p. 4568 
Honorable L. B. Davis, Jr. - Page 4 (H-1065) 

APPROVED: 

DAVID M. KENDALL, First Assistant 

Opinion Committee 

jst 

p. 4569