‘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.ment of’ the term of 

office of members of 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.. .’ 

.‘You have requested the opinion ‘of th-is. ofX$e’.. upon ,.the 

,following~ que,qtlont%:‘, 

“1.. Where a 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 members to be appotited by the 

Governor for a definite term,‘when doea the 

term .of office, of’ each member begin ahd end, 

when the Constitution or Act oreatlng same, 

does not speolfloally 80 provide? 

“2 . Where a board, agency, commisalon ore 

conunitte~e of 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 membere to be appointed’ by, the,: . . 

Governor for a definite term,, with the. advice 

and consent of the Senate, when does the te’rm 

of office of.eaoh member begin and end, when 

the Conatitutlon or Aot creating same doee ‘, 

not 8peolflcall.y 80 provide? 

.’ 

-1658'- 

.~' ~. ', 

. 

:. ." 
.’ . 

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

“3 . Where a 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 members to 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, when does the term of office 

of each member begin and end, when the Constltutlon or Act creating same does not specifically so provide? 

“4. Where a 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 members recommended 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, 

when does the term of office of each member 

begin and end, when the Constitution or Act 

creating same does 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 many of 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 commencement date 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 

when the term of office will commence. The questions 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 ,,,., ,‘J iii:> :,,. ,, 

,’ ,~~‘, 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 30 of Article XVI of the 

Constitution 0,f Texas; 

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 made between.the phrase', 'term 

of office' and an lndl.vldual~s tenures of,offlce; 

'The DeriOd of time desinnated as a'term of of- ', 

ffce may not 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 

.cixnmencement date gf the term of the office or membership to which 

he, has ,been appointed; The, indlv~lduaPs tenureof office.,in a. 

particular office may coincide with the term of pffice of the 

position to which he, has been,appointed, but In some instances 

It will not. An officer Is entitled to hold the.office until 

his successor is elected or appointed and qualifies. Article 18 

V.C.S. 

In determining the commencement date 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 atie at 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, ,page 4 (Ept 338) 

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. Where this is the case, it is believed 

t,o be 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, when the 

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 ~the people, at the.earliest period the 

power and authority to refill it." (Emphasis 

added.) 

The court in the case of Dobkins v. Reece, 17 S.W.2d 

81 (Tex.Clv.App. 1929, error ref.), stated In its opinion that: 

When the 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, 19 P.2d 241; Chamski 

Mich. 238, 284 N.W. 711; Lowrie. v. 

Mich. 63, 276 N.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 Maddox v. York, 54 S.W. 24 (??ex.Clv.App. 1899, aff. 55 

S.W. 1133); Mechem on 390, P. 255. w of Public Offices and Officers, .Section 

The foregoing cases clearly reveal that It has long been 

recognized In Texas, as well as many other jurisdictions, that 

where there exists uncertainty as to the term of office of a 

particular position, the courts will favor tin Interpretation 

which limits the term to the shortest time and returns the elective 

or appolntive power to be once again exercised. Such being the 

case, It would seem to 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 Supreme Court of Texas stated that: 

~ "The 160th Judicial District was"creat&d.b%. 

an Act of the ,55th Legislature and came Into e&atence on the effective day of the Act, that Is, 

ninety days after May 23, 1957, the day upon'which .' 

the I&gl,slature adjourned e D . ~ 

.~.. II e * 0 0 

"Under the Texas constitution, the office 

of diatr'ict judge Is an electlve.posltion, with, 

the exception that the Governor may fill vacancies 

by aoooititment until the next nene.ral election, 

Ai a‘hsual thing when a dlstrl& court is,,cr&at.&d' 

there la-a vacancy In the office of judge to be, 

filled by gubernatorial appointment. However, 

when and 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 seem to 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 may be vacancies exls'tlng in positions on the boards, 

agencies,, commissions or committees, If the appointing power does 

not make the appointments on the effective date of enactment or 

~provision creating the position, this would not of Itself seem to 

affect the time at which the term of office commenced. A somewhat 

analogous situation is commented upon 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 f is successorT 

The same reasoning would apply to the questions here presented. The fact that an appointment wasnot made on 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 on which the staggered terms of 

members of the State Judicial Qualifications:Commission commenced 

and terminated. In passing upon this question it was stated that: 

A term 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' 

may be readily ascertained. Bruce v. Matlock, 

113 S.W. 990 (Ark.Sup. 1908). Boyd V. Huntington; 

ll'P.2d 383 (Callf.Sup. 19321; PeQple 

,106 P.2d 635 (Calif. Dist. App. 1940).". (Emphasis. 

added. ) 

-1663- 
. 

Hon. Preston Smith, page 7 (M-338) 

While the foregoing comment8 would likewise seem to support 

a rule of construction that the term of office of an individual 

serving on an agency, board, commission or committee of the State 

of Texas, created by an enactinent wholly silent concernln&the 

commencement date of such term of office, begins with the effectlve~ date of the enactment, the SupFme Court of Texas In Spears 

ifx%z%: 

398 S.W.2d 921 (Tex.Sup. 1966), made the following 

The relators oontend that.the general 

rule aa’& the commencement of terms Is that, 

IThe term 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 

we are in agreement wrth this contention and If we were to 

consider the constitutional provision relating 

to Senator8 by Itself, we would have no difficulty 

In saying that the usual senatqlal term extended, 

four yerl;rs from the day of the general ‘election 

* . . . s (Emphasis added. ) 

While the foregoing statement was made by the Supreme’ 

Court in its ~opinion, it should ,be noted that the court did ‘.‘~’ ‘:’ 

not base its decision in the case on this point and therefore 

the statetnent Is judfofal’,dlcta rather than an actual holdfng 

of -the court 0 In addition, SoeaPs v. Davis, supra, ,dealt w,ith 

Teleotive. offices rather ‘than appolntlve offices; 

Of even greater significance in discussing Sm 

18 the reference made to 67 C.J.S. Officers, rJ 45, wherein 

%?%stated that z 

,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 

added Q ) 

Among the 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 when the term-of office donimenced 

as to a member of the estate Chiropratlc Board. The statu'te 

creating the board provided for staggered board membership. 

Such appointments were to be made bv the Governor within 

sixty hays from the effective date of the act. The court 

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. The court 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 members first appointed, 

one shall be appointed for a term of one year, 

two for two years, and two for three years.' 

The statutes there did provide, however, for 

staggered terms and for rotation In office and 

It was necessary to determine the date of the 

commencement of the term8 in order to carry out 

'the legislative intent. Under the situation . . 

prese2atedy statutes before it, the court con- .: 

eluded that the terms commenced on 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 We may imply 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. 

"As we read the statute under consideration, 

we believe that it contains a definite impli- '. 

cation that the terms of the original boards members should commence upon the date of the first 

appointments rather than upon the effective date 

of the act 0 e D .'I (Emphasis added.) 

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

In the case of Boyd v. 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 had before it the question o 

mln ng the ate of commencement of the term of office of the 

member8 of the dental examiners board. The issue was whether 

the commencement date of the terms of office was the date of 

appointment or the effective date of the act. The court in 

holding that the effective date of the act controlled the 

,commenoement of the termof office of the members ,of the 

board .8tated: 

"The Governor who appointed petitioner was ~' 

limited In his appointment to the duration of the 

term fixed by law, and the naming of any period,be5 

ond 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 on August 8, his,appoin$-~. 

ment on November 9, 1927, was but for an unexpired 

.term. 

"The law is well established that a term 

benins not necessarily from the date of the 

suit may properly be inferred from the construe- : 

tion of the statute a8 a whole . . . The statutes 

here in question does fix the date of the 

commencement of 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. 

-16660 
Hon. 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 two member8 shall 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. A contrary holding would result in a destruction of any effect of the provision." (Emphasis added.) 

The only case authority by a Texas Court called to our 

attention involving the point Is Spears v. Davis, m, 'whlch~ 

quoted statement by the Supreme Court 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 

commencement of 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 and Attorney General'8 

Conference Opinions 2572 (1924) 2913 t 1933 1 and Conference, Opinion dated January 23, 1950. In accord, 43 Am. JUP. 15, Public 

OffQers; Sec. 155, and cases there cited. 

A8 can 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 on a State agency, board,;oommissionor committee commences on a date determined bye the, 

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 Supreme Court'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 

~would favor permitting the effective date of the enactment to 

determine the commencement of the term of office in the absence 

of any provision settingforth the commencement date 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, we are 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 temn of 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 commencement date 

of subsequent terms of office fn such 

position. 

It should be noted at this point that there may be lnstances where the legislative enactment or constitutional provision creating offices on a board, agency, commlsslon or 

committee of the State of Texas has been amended since its 

initial enactment. We are of the opinion that an amendment to 

the statutory OF constitutional provlslon creating an agency, 

board, commission or committee does not change the commencement date of,the terms of office of the members on such agency, 

board, commlsslon or committee unless such amendment clearly 

-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); Manry v. McCall, 

.2d 348 (Tex.Clv.App. 1929). 

Prior opinions are overruled In sofar as they are In conflict 

herewith. 

SUMMARY 

The commencement date 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 commencement date 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 commence on 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 commencement date of the term of office Is fixed by the date. 

of appointment of the Initial appointee. 

Amendments to the.statutory or constitutional prov-ksions ” 

creating a board, agency, commission or committee do, not chahge 

:the commencement date of the terms of office of the members of 

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: 

OPINION COMMITTEE 

Kerns Taylor, Chairman 

Roger Tyler 

John ,Qrace 

Monroe Clayton 

Fielding Early 

IiAW!RORNE PHILLIPS 

Staff Legal Assistant 

-16'10-