## 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 ofMorticians bymember who has changed employment.
Dear Mr. Davis:
You advise that twomembers of your board were appointed by the Governor on the same date and that both were confirmed by the Senate. Onewas employed at the time by a corporation owning and controlling more than three funeral establishments inTexas, and the other was theproprietor 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 forwhich the other board member works. You ask if either of them isnow disqualified to serve on theboard. The State Board,ofMorticians iscreated by section 2A of article 4582b,V.,T.C.S. Inpart it reads:

There ishereby 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.
. . . Themembers of said Board shall be appointed by the Governor, by and with the consent of the Senate for a period of six (6)years. . . . Nomember shall be appointed to the Board who isan officer or employee of a corporation or other business entity controlling or operating directly or indirectly, more than three funeral establishments, ifanother member of the Board isalso an officer or employee of the same corporation or other business entity.

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

It has been suggested to us that neither man isdisqualified by article 458233from continued service because the statute speaks of particular qualifications only for appointment, not for service.
InAttorney General Opinion H-578 (1975)we were asked whether amember of the Board of Private Investigators and Private Security Agencies who was statutorily required at the time of his appointment torepresent a certain profession could continue to serve on the board after he left that profession. We characterized the question as "whether or not aperson meeting the qualifications for aparticular office at the time of his appointment but later giving up those qualifications neverthelessmay continue inoffice." We think thepresent question is essentially the same. Citinq Phaqan v. State, 510 S.W.2d 655 (Tex.Civ. App. -- Ft. Worth i974,writ rmn.r.e.1, Whitemarsh v. Buckley, 324 S.W.2d 298 (Tex.Civ. ADD. -- Houston 1959, nowrit), and Attorney General Opinion-WW-1387 (1962),we said inH-578:

Surely, the Legislature, in specifically calling forvarying 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 aperson no longer meets the qualifications for a position of the Board, itmust be held that he loses his right to serve and the position isvacated.
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~ [lstDist.1 1969, writ ref'd w.0.j.). It isplain that the Legislature wished toprevent Mortician Board domination by representatives of any single chain of establishments. If theH-578 rationale did not apply, there would be nothing to prevent allmembers of the Board frombecoming 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, andwhether the Board has any jurisdiction or control of its ownmembership as to the disqualification of themembers.
In our opinion, theboard member who changed his status suffers the consequences of the change. At the time he became

p. 4567Honorable 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. Themember whose status bhanged soas tobecome such an additional representative of that corporation thereby Vacated his office. Attorney General Opinion H-578 (1975). See 47Tex. Jur.~2d Public ,OfficersS 44.
You also askwhether the State Hoard of Morticians has any jurisdiotion or control over the qualifidations of its own 

### memebrs L Section 2Aof article 4582b authorizes the Governor to remove any Board member "forneglect of duty, incompetence, or fraudulent or dishonest conduct." It to remove anymember "whose license require;u;;;aovffnor topractice 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 itsmembers. It iswell established that

an administrative agency . . .has only such powers as are expressly granted to itby statute together with those necessarily implied from the authority conferred or duties imposed.
Staufferv. City of SanAntonio, 344 S.W.2d 158, 160 (Tex.1961). It is therefare our opinion that the State Board ofMorticians has no jurisdiction or control over the qualifications of its own members. SeeAttorney General Opinion **H-226** (1976).

- SUMMARY
Amember of the State Board ofMorticians who changes employment soas tobecome 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 formembership on the State Board of Morticians have been setby the Legislature and are notwithin 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