‘AITomNRY,

aMcNIICRAI. February 17, 1969 :,

Honorable,’Preston Smith. :, ., ORlnlon ,No.”M-&g” Governor ‘of ,the.State of Texas,, :. State Capitol .Building Re.: Certain que&iohs re.lating Auetiii, Texas to the’ de.termtinatlon of the &mmence.mentof

’ the term of office of membersof various boarda, wencies , c’ommls - slon.8 and commltteeg of ’ the Sta$e. of Texas where pu;ch, term of offike is not,speciflcally. prescribed by Dear Oovbhor Smith: atatute~ or the Cbqstitut+on gf l&w3..

.’

.‘Youhave requested the opinion ‘of th-is.ofX$e’

.. upon,.the ,following~ que,qtlont%:‘,

“1.. Wherea board, ‘age.ncy~‘,c&nmisa’ion or
.” commlttee~of ‘the State of.Texa,a.ia created’ .bji:“

. the.Constltut.lon of the.Sta.td of Texas, or .by Act of the Texas Legislature, the e,ame. Tao .be‘, composed of membersto be appotited by the Governor for a definite term,‘when doea the term.of office, of

’ each memberbegin ahd end, whenthe Constitution or Act oreatlng same, does not speolfloally 80provide?

“2

. Wherea board, agency, commisalon ore conunitte~eof the State of Texas la created by the Constitutlon,of the:State of TBXBB,,or by,, Aqt,of the Texas Iegialature, the. same.‘to be’ composed of membereto be appointed’ by,the,:

.. Governor for a definite term,, with the.advice and consent of the Senate, whendoes the te’rm of office of.eaoh memberbegin and end, when the Conatitutlon or Aot creating samedoee ‘, not 8peolflcall.y 80provide?

.’ -1658'- .~' ~.',

.

:. .".’ .

Hon. Preston Smith, page 2 (M-338 )

“3

. Wherea board, agency, commission or committee of the State of Texas is created by the Constitution ‘of the State’ of Texas, or by :Act of the Texas Legislature, the sameto be composed of membersto be appointed by the Governor, with the advice and consent of the Senate, for a term falling under the provisions of Article 16, Section 30, ‘Constitution of the State of Texas, whendoes the term of office of each memberbegin and end, whenthe Constltutlon or Act creating samedoes not specifically so provide?

“4. Wherea board, agency, commission or committee of the State of Texas is created by the Constitution of the State of Texas, or by Act of the Texas Legislature, the same to be composed of membersrecommended by another board, agency, commission or committee of the State of Texas for a definite term, but to be approved by the Governor of the State of Texas, whendoes the term of office of each member begin andend, whenthe Constitution or Act creating samedoes not specifically so provide?” In connection with the foregoing questions you have mentioned that in certain instances your office has beenunable, to determine the beginning and end of the term of manyof the ,offioers serving on various boards, agencies, commissions and committees of ,the State of Texas.

Each of the questions which you have posed pertain to the determination of the commencementdate of the term o ’f office of various appointive positions on boards, agencies, commissions and committees of the State of Texas. In each of the instances the statute or constitutional provision creating such b~oard, agency, commission or committee does not specifically, set forth whenthe term of office will commence. Thequestions you have posed differ In only the following respects:

1. Appointments for a definite term by the ,Governor; 2. Appointments for a definite term by the Governor with the advice and consent of the Senate;,

1,,,.~_,y!‘%. c,~;,,; ,,, ,,,,I,,

.’ /ji”

. ‘,f ,,,.,,‘Jiii:>:,,.,,

,’,~~‘,i j,_‘,,‘,,-:lk&Z9i: T, :a’ ..,‘S,.,,,’

...

,.,‘,

Hon. Preston Smith, page 3 (M-3381,

3. Appointments by the Governor with the advice and consent of the Senate for terms subject to the provisions of Section 30of Article XVIof the Constitution 0,fTexas; 4. Membership recommended by another board, agency, commlsslon or committee with approval by the Governor.

,. " In answering the foregoing questionsit maybe helpful to lnltlally refer to the statement of .the Supreme;Courtof ~Texas In the case of Spears v. Davis, 398,S.W,2d 921 ('I+.Sup. 1966), which lsset forth as follows: ".,.; ,, ',

“In order to avoid confusion, a clezir dis-~ tlnctlon must be madebetween.the phrase', 'term of office' and an lndl.vldual~s tenuresof,offlce; 'The DeriOd of time desinnated as a'term of of- ', ffce maynot and often does not ,colnclde with an individual ‘8 tenure of office , . . . ” (Emphasis added, )

me questions presented here do not necessarily deal wlth~ an Individual Is tenure of office as.a.member..o.f.a .pasticu~lar.-.,board, agency, commission or committee, but are directed so~lely ‘to ~the .cixnmencementdate gf the term of the office or membership to which he,has ,beenappointed; The,indlv~lduaPs tenureof office.,in a. particular office maycoincide with the term of pffice of the position to which he,has been,appointed, but In some instances It will not. Anofficer Is entitled to hold the.office until his successor is elected or appointed and qualifies. Article 18 V.C.S. In determining the commencementdate of the term of office of a position on a board, agency, commlsslon or committee of the State of Texas oreated by either a statutory or constitutional provision which i&silent as to Intent concerning when the term of office is to commence, a review of the authorities disclose that there atieat least two dates which are generally to be considered -- the date of the first appointnient to the office, and the effective date of the statute or constltutlonal provision creating the office 0 See Attorney General’s Opinion O-3584 (1941).

-1660-Hon.'Preston Smith, ,page4 (Ept338)

In the case of Royston v. Griffin, 42 Tex. 566 (1875), the~court stated that:

coul’t “It certainly cannot be said that the language of the Act Is utterly free from ambiguity or uncertainty. Wherethis is the case, it is believed t,obe the.aoundeat rule of interpretation in a republican system of government, to abbreviate rather than prolong by construction, official tenure. In case of doubt, the preference should, It Is thoug,ht, be Riven in favor of the speediest return of the right to fill the office to the appointing power
. . . .II (Emphasis added.) In the case of Wright v. Adams, 45 Tex. 134 (1876), the stated ln'its opinion that: : II

. . . It is believed, moreover, to be a souhd,rule of,constructlon, which holds, whenthe duration or term of an office which Is filled by uouular elections is a auestion-of doubt or uncertainty, that the interpretation is to be followed which limits It to the shortest time, and returns to ~thepeople, at the.earliest period the power and authority to refill it." (Emphasis added.) The court in the case of Dobkins v. Reece, 17S.W.2d 81 (Tex.Clv.App. 1929, error ref.), stated In its opinion that: Whenthe duration or term of an office is's question of doubt or uncertainty, the interpretation should be followed which limits such office to the shortest term. Wright v. Adams, 45 Tex. 134

. . . .'I In 67 CdJ.S. 1]44c, Officers,,it is stated that:

If the language of a statute or stltutlonal'provislon specifying the term of ofconfice of an offlalal is ambiguous, the lnterpretatlon which limits the term to the shortest time will be adopted." (Citing in the footnote ARueler

217 Cal. 429, 19P.2d 241; Chamski Mich. 238, 284 N.W. 711; Lowrie.v. Mich. 63, 276N.W. 900; State ex rel Bonner, Governor v. District Court of First Judicial. ,

Hon. Preston Smith, page 5 '(M- 338)

Dist. in and for Lewis and Clark Counties, 206 P.2d 166; Dobkins v. Reece, Clv.App., l'i:S.W.@d 81, error ref e)e” See alsO Maddoxv. York, 54 S.W. 24 (??ex.Clv.App. 1899, aff. 55 S.W. 1133); Mechemon 

# 390, P. 255. wof Public Offices and Officers, .Section
Theforegoing cases clearly reveal that It has long been recognized In Texas, as well as manyother jurisdictions, that where there exists uncertainty as to the term of office of a particular position, the courts will favor tinInterpretation which limits the term to the shortest time andreturns the elective or appolntive power to be once again exercised. Such being the case, It would seemto necessarily follow that the courts would favor an interpretation which commences the beginning of the term of office at the earliest possible date because this would result .' in the speediest return of the right to fl,ll the office to the 1 appointing power. .' In the case of Eades v. Drake, 160 ,Tex.381, 332 S.W.2d 553 (l%O), the SupremeCourt of Texas stated that:

~ "The 160th Judicial District was"creat&d.b%. anAct of the ,55th Legislature and came Into e&atence on the effective day of the Act, that Is, ninety days after May23, 1957, the day upon'which .' the I&gl,slature adjourned e D

. ~ .~.. II e * 00 "Under the Texas constitution, the office of diatr'ict judge Is an electlve.posltion, with, the exception that the Governor mayfill vacancies by aoooititment until the next nene.ral election, Ai a‘hsual thing whena dlstrl& court is,,cr&at.&d' there la-a vacancy In the office of judge to be, filled by gubernatorial appointment. However, whenand after a general election takes place, the term of a district judse'ia flxed,at-four years by the constitution. (Emphasis added.) ( Applying the reasoning of the foregoing case to the present situation, it would appear that a board, agency, commission or committee created by a constitutional provision or statutory en-
-1662-Hon. Preston Smith, page 6 (M- 338)

actment of the Legislature would come into existence on the effective date of the constitutional provision or statutory enactment. In turn, it would likewise seemto follow that any appointlve positions upon a board, agency, commission or committee would come into existence on the effective date of the statutory enactment or ConStitutional provision, unless otherwise provided. While there maybe vacancies exls'tlng in positions on the boards, agencies,, commissions or committees, If the appointing power does not makethe appointments on the effective date of enactment or ~provision creating the position, this would not of Itself seemto affect the time at which the term of office commenced. Asomewhat analogous situation is commentedupon in 67 C.J.S. 850, Officers, where It is stated that:

'Since the term of an office is distinct from the tenure of an officer, 'the term of office' is not affected by the holding over of an Incumbent beyond the expiration of the term for which he was appointed; and a holding over does ndt change the len th of the te?, but merely shortens the;term of fis successorT Thesamereasoning would apply to the questions here presented. Thefact that an appointment wasnot madeon the ,commencement date of the term of office would not change the lengfh,df'the term, ,but'i,t would merely shorten the length of time that the indlvidual,so appointed could serve in the position.. In Attorney General's Opinion M-296 (1968), the question was presented as to the date onwhich the staggered terms of membersof the State Judicial Qualifications:Commission commenced and terminated. In passing upon this question it was stated that:

Aterm of office is not necessarily measuiei i& the date of appointment thereto, but rather by the date set by the act which brings s.uch 'office into existence. Even though no specific date is mentioned by such act, its’ terms pay be-
~’ ‘I’ such, as is the case here, that a definite date' maybe readily ascertained. Bruce v. Matlock, 113S.W. 990 (Ark.Sup. 1908). Boyd V. Huntington; ll'P.2d 383 (Callf.Sup. 19321; PeQple ,106P.2d 635 (Calif. Dist. App. 1940).". (Emphasis. added. )

-1663-.

Hon. Preston Smith, page 7 (M-338)
While the foregoing comment8would likewise seemto support a rule of construction that the term of office of an individual serving onan agency, board, commission or committee of the State of Texas, created by an enactinent wholly silent concernln&the commencementdate of such term of office, begins with the effectlve~date of the enactment, the SupFme Court of Texas In Spears ifx%z%: 398S.W.2d 921 (Tex.Sup. 1966), madethe following
Therelators oontend that.the general rule aa’& the commencementof terms Is that, ITheterm of office begins from the time, if ’any, fixed by law, or where no time Is fixed, on the day of election or the date of appointment. 1 67 C.J.S. Officer-h is authority to the oontia’8fl;. ’ e ere weare in agreementwrth this contention and If wewere to consider the constitutional provision relating to Senator8 by Itself, wewould have no difficulty In saying that the usual senatqlal term extended, four yerl;rsfrom the day of the general ‘election *

... s (Emphasis added. ) While the foregoing statement wasmadeby the Supreme’ Court in its ~opinion, it should ,benoted that the court did ‘

.‘
~’‘:’ not base its decision in the case on this point and therefore the statetnent Is judfofal’,dlcta rather than anactual holdfng of -the court 0 In addition, SoeaPs v. Davis, supra, ,dealt w,ith Teleotive. offices rather ‘than appolntlve offices; Ofeven greater significance in discussing Sm 18the reference madeto 67 C.J.S. Officers, rJ45, wherein %?%stated thatz

,I The general rule Is ‘that8 where no time ia’fixed by the constitution or Statute. the term begins, in-the case of elective offices; on the day of election, and In the case of appolntl@e offices, on the date of apoointment e I)

. .‘I (Emphasis addedQ ) Amongthe case8 cited In aup ort of the statement iS the .oaae’Oz People v; Morris,, 41 Cal,2d i:30, ,106 P.2d 635 (3940).

-1664- ’.

Hon. Preston Smith, page 8 (M-338)

before In the case of People v. Morris, m the .co,urt had

it the question of whenthe term-of office donimenced as to a memberof theestate Chiropratlc Board. The statu'te creating the board provided for staggered board membership. Such appointments were to be madebv the Governor within sixty hays from the effective date of the act. Thecourt its opinion stated that:

J 'I0 Perhaps the leading case in this urisdl&ion Is Boyd v. Huntington, 215 Cal..473,~ 1 P,2d 383, which case has been discussed at length by both parties. Thecourt was there ,dealing with the two statutes relating to the ~:, board of dental examiners. Neither of said statutes contained the provision found in the'~ 'statute here directing the appointment of the :,::, b,oard by the governor 'within sixty days' anid~~". providing that 'Of the membersfirst appointed, one shall be appointed for a term of one year, two for two years, and two for three years.' Thestatutes there did provide, however, for staggered terms and for rotation In office and It was necessary to determine the date of the commencementof the term8 in order to carry out 'the legislative intent. Under the situation

.. prese2atedy statutes before it, the court con- .: eluded that the terms commencedon the effeCtive date of the act, It was there said DThe law is well established that a term*beg;ns not '. ln

necessarily from the date of appointment, but ". from the time fixed by the lawmakers for it to; begin. t Wemayimply from the language of the : court that the time of the commencement of a term under any given statute is to be determined by the intent of the lawmakers as found from a consideration of such statute as a whole. "Asweread the statute under consideration, webelieve that it contains a definite impli- '. cation that the terms of the original boardsmembers should commenceupon the date of the first appointments rather than upon the effective date of the act 0e D.'I (Emphasis added.)

-1665-Iion; Preston Smith, page 9 (M-338 )

In the case of Boydv. Huntington,,.215 Cal. 473, 11 P.2d 383 (Cal.Sup.Ct. 1932 , referred bk~Z?f;iS~

SUP?., to by the courkin Pe;p;;t;ri

the court hadbefore it the question o mln ng the ate of commencementof the term of office of the member8of the dental examiners board. The issue waswhether the commencementdate of the terms of office was the date of appointment or the effective date of the act. Thecourt in holding that the effective date of the act controlled the ,commenoementof the termof office of the members,of the board .8tated:

"The Governor whoappointed petitioner was ~' limited In his appointment to the duration of the term fixed by law, andthe namingof any period,be5ond such term Is to be regarded as aurplusage. 6 C.J., p. 965. Since the term of an office 18’ ‘, distinct from the tenure of an officer, the 'term : of office' is not affected by a holding over of an Incumbent beyond the expiration of the term for which he was appointed, and a holding over does not change the length of the,term, but merely s'hortens the term of the suoces8or. A88uming, therefore, t&t the term to which petitioner was appointed began and ended onAugust 8, his,appoin$-~. ment on November 9, 1927, wasbut for an unexpired .term. "The law is well established that a term benins not necessarily from the date of the

suit mayproperly be inferred from the construe- : tion of the statute a8 a whole

. . . The statutes here in question does fix the date of the commencementof the terms as August 6, 1915, the effective date of the act, and the rotation in office or classification provided for therein In our opinion definitely fixes and establishes the end thereof.

-16660Hon. Preston Smith, page 10 (M-338)
?Phe classification or provision for rotation in office in the statutory declaration that not. more than the terms of twomember8shall expire in any one year has for it8 purpose the fixing of the term, and It cannot be given except by a holding that the beginning and expiration dates of the terms are so fixed and'that all term8 run with the office. Acontrary holding would result in a destruction of any effect of the provision." (Emphasis added.) Theonly case authority by a Texas Court called to our attention involving the point Is Spears v. Davis, m, 'whlch~ quoted statement by the SupremeCourt of Texas is considered as.~, judicial dicta as distinguished from'mere oblter c]$ci+', 15'Tex. Jur.. '2d'588,Courts, Sec. 130; p.595, .Courts, See,.,J35.L,.,.4.3 such Itcannot be ignored. In addition, there is~ampleprecedent by prior Attorney General's Opinions to support the position that the term of office of a person serving onan agency, board, commission or committee commences upon the date of appointment of the initial appointee In instances where the commencementof the term cannot be determined from the language of the enactment. Attorney General's Opinions O-3584 (1941)j o-2805 (1941), O-4903 (1943), O-5169 1945 andAttorney General'8 Conference Opinions 2572 (1924) 2913 1933 and Conference, Opint 1 ion dated January 23, 1950. In accord, 43Am.JUP. 15, Public OffQers; Sec. 155, and cases there cited. A8can be seen from the cases cited by the texts in.Corpus Juris Secundum'and American Jurisprudence, the authorities are somewhat in conflict a8 to whether the term of office of an individual serving by appointment ona State agency, board,;oommissionor committee commences on a date determined byethe, effective date of the enactment creating the position or on the date of the initial appointment to the posftion, or the date of qualification by the appointee, Except for the SupremeCourt's statement in Spears v. Davis and the long line of Attorney General Opinions above cited, we would not hesitate to adopt a better rule of construction which ~wouldfavor permitting the effective date of the enactment to determine the commencementof the term of office in the absence of any provision settingforth the commencementdate of the term of office. In addition, by using the effective date of enactment,as the determining factor in setting the commence~ment-date:

-1667-Hon. Preston Smith, page 11 (,l&338)

of terms of office where the statutory OP constltutlonaI. proVISIOniS silent thereon, determination of such commencament date can be more accurately and easily made. Certainly because of this conflict of authorities, clariflcatlon by the Legislature would be extremely helpful, and, in fact, it is a virtual necessity If absolute legal certainty Is to be assured. In the absence of legislation, however, and In an effort to Peconclle the aforementioned conflicts, weare of the opinion that the following rules will eliminate most of the conflicts: (1) Insituatlonswhere the enactment creating boards, agencies, commissions and committees provides for a multi-member board with staggered terms of office, It appears that the legislature, In the absence of anything '~ to the contrary, Intended that the commencement date of the temnof offlee of such appointlve positions will be the effective date of the enactment creating such posltlon. This was so held in Attorney General's Opinion No. M-29$ (1968) and that Opinion is reafflrmed In this connection. (2) In Instances where the enactment creates a. single position and does not provide for a definite beginning date for the commencement of the term of office, the term beglns on the date of appointment of the initial appointee to such position, and thereafter such date will govern the commencementdate of subsequent terms of office fn such position. It should be noted at this point that there maybe lnstances where the legislative enactment or constitutional provision creating offices on a board, agency, commlsslon or committee of the State of Texas has been amendedsince its initial enactment. Weare of the opinion that an amendmentto the statutory OFconstitutional provlslon creating an agency, board, commission or committee does not change the commencement date of,the terms of office of the memberson such agency, board, commlsslon or committee unless such amendmentclearly

-1668-.Hon. Preston Smith, page 12’ (M-338 )

has as its purpose such a change. See State ex rel -McCall v.
m 16 S.W.2d 809 (Corn. Sup. 1929); Manryv. McCall, .2d 348 (Tex.Clv.App. 1929). Prior opinions are overruled In sofar as they are In conflict herewith.

SUMMARY Thecommencementdate of the term of office of an lndividual serving on a board, agency, commission or committee of the State of Texas, created by a statutory or constitutional pro-. vision which Is silent as to the commencementdate of such term of office, Is fixed by the effective date of the legislative enactment OF constitutional provision creating such office In those Instances where the board, agency, commission or committee Is a ,multi-member body and the statutory or constitutional provision provides for staggered terms of office, Indicating an implication that the terms of office should commenceon the’effectlve date of the statutory or constitutional provision. In those Instances where the statutory or constitutional provision does not provide for a staggered term of a multi-membership body, the commencementdate of the term of office Is fixed by the date. of appointment of the Initial appointee. Amendmentsto the.statutory or constitutional prov-ksions ” creating a board, agency, commission or committee do,not chahge :the commencementdate of the terms of office of the membersof such board, agency, commission or committee unless such amendment clearly has as its purpose such a change. 

# Y BP s very truly,

I .Prepared by George M. Kelton Assistant Attorney General

-1669-Hon. Preston Smith, page‘13 (M-338)

APPROVED: OPINIONCOMMITTEE Kerns Taylor, Chairman Roger Tyler John,Qrace Monroe Clayton Fielding Early IiAW!RORNE

PHILLIPS Staff Legal Assistant

-16'10-