The Attorney General of Texas 

June 9, 1981 

MARK WHITE 

Attorney General 

Mr. Don R. Stiles 

Executive Director 

Opinion No. ~~-355 

Texas Adult Probation Commission 

P. 0. Box 12427 

812 San Antonio, Suite 400 

Austin, Texas 78711 

Re: Term of office of members of 

Texas Adult Probation Commission 

Dear Mr. Stiles: 

Senate Bill No. 39, which became law in 1977, created the Texas Adult 

Probation Commission. Acts 1977, 65th Leg., ch. 343, !3l, at 910. See Code 

Grim. Proc. ‘art. 42.121. Section 2.02 of article 42.121 provides that:- 

The commission shall consist of three judges of the 

district courts of Texas and two citizens of Texas who 

are not employed in the criminal justice system to be 

appointed by the Chief Justice of the Supreme Court 

of Texas and three judges of the district courts of 

Texas and one citizen of Texas not employed in the 

criminal justice system to be appointed by the 

presiding judge of the Texas Court of Criminal 

Appeak. 

Section 2.03 provides that: 

(a) The first members appointed to the Board shall 

serve terms of two, four, and six years respectively, 

and until their successors are appointed. Thereafter 

each member shall serve for six years. 

(b) The appointing authority shall draw lots to 

determine which members serve two, four, and sixyear terms. 

The first meeting of the commission was called in September, 1977, ss 

required by section 2.06faX 

You have requested our opinion regarding these questions: 

p. 1179 
Don R. Stiles - page 2 @w-355) 

1. When do the terms of the first and succeeding 

commission members begin and end? 

2. Do the succeeding members of the commission serve 

until their successors are appointed? 

Section 2 of Senate Bill No. 39 amended article 42.12 of the Code of Criminal 

Procedure. Section 3 of the bill provided that: 

Section 4.05 of Article 42.121, Code of Criminal Procedure, 

1965, as amended, and Section 2 of this Act take effect on 

September 1, 1978. 

Thus, section 4.05 of article 42.121 and the amendments to section 10 of article 42.12 

took effect on September 1, 1978. The remaining sections of article 42.121, including 

sections 2.02 and 2.03, took effect on June 10, 1977, the effective date of the act. 

In Attorney General Opinion M-338 (1969), this office observed that authorities 

have generally held that, in determining the commencement date of the term of 

office of a member of a commission created by a statute, when the statute is silent 

as to said date, two dates are to be considered: the date of first appointment to the 

office, and the effective date of the statute creating the office. See also Attorney 

General Opinion O-3584 (1941). The opinion cited cases holding that when the duration 

of a term of office is subject to doubt, the interpretation which would limit such term 

to the shortest time should be followed. It then stated that: 

[Ii t would appear that a. . . commission. . . created by a. . . 

statutory enactment. . . would come into existence on the 

effective date of the. . . enactment. . . [II t would likewise seem 

to follow that any appointive positions upon a. . . 

commission. . . would come into existence on the effective 

date of the.. . enactment. . . unless otherwise provided. While 

there may be vacancies existing in positions on the. . . 

. . commm.sioIIs. . . 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. . . 

After reviewing prior Attorney General Opinions and cases which reached conflicting 

conclusions regarding the question of whether the date of first appointment or the 

effective date of an enactment is controlling, the opinion concluded that: 

(1) In situations where 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 term of office of 

P. 1180 
Don R. Stiles - page 3 (~~-355) 

such appointive positions will be the effective date of the 

enactment creating such position. This was so held in 

Attorney General’s Opinion No. M-296 (1968) and that Opinion 

is reaffirmed in this connection. 

Prior Attorney General Opinions in conflict with this holding were overruled. See also 

Attorney General Opinion H-955 (1977). Compare Spears v. Davis, 398 S.W. 2d 921 

(Tex. 1966). (Case discussed and distinguished in Attorney General Opinion N-338). 

The Texas Adult Probation Commission is governed by a multi-membered board 

with staggered terms of office. Accordingly, absent any indication that the legislature 

intended otherwise, we conclude that the commencement date of the terms of office 

of the initial appointees to the commission was June 10, 1977. 

Your first and second questions ako refer to the terms of office of succeeding 

appointees. The answer to the question of when their terms commence depends upon 

the effect of that portion of section 2.03. in article 42.121 which states;‘The first 

members appointed. . . shallserve. . . until their successors are appointed. Thereafter 

each member shall serve for six years.” (Emphask added). We must determine 

whether the legislature intended for the underlined language to apply only to the first 

appointees. 

We answer this question in the negative. We believe that the legislature intended 

that each appointee to the commission would serve until his successor was appointed, 

even though such appointment might not have been made by the time that the 

successor’s term of office commences. In this connection, we refer to the following 

statement in Attorney General Opinion M-338, which was taken from 67 C.J.S. 

Officers section 50: 

‘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 not change the length of 

the term, but merely shortens the term of his successor.’ 

See also Spears v. Davis, 398 S.W. 2d 921 (Tex. 1966). Based upon this quotation, 

Attorney General Opinion M-338 concluded that: 

The fact that an appointment was not made on the 

commencement date of the term of office would not change the 

length of the term, but it would merely shorten the length of 

time that the individual so appointed could serve in the position. 

In light of the foregoing discussion, we conclude that the terms of office of the 

first appointees to the Texas Adult Probation Commission commenced on June 10, 1977. 

p. 1181 
Don R. Stiles - page 4 (~~-355) 

The terms of office of the next succeeding commission members commenced, or will 

commence, two, four, and six years after that date, and will extend for six years. Both 

initial and succeeding appointees serve until their successors are appointed. 

SUMMARY 

Under article 42.121, Code of Criminal Procedure, the terms 

of office of the initial appointees to the Texas Adult Probation 

Commission commenced on June 10, 1977. The terms of office 

of the next succeeding appointees commenced, or will 

commence, two, four, and six years after that date, and extend 

for six years. Both initial and succeeding appointees serve until 

their successors are appointed. 

Very truly yours, 

MARK WHITE 

Attorney General of Texas 

JOHN W. FAINTER, JR. 

First Assistant Attorney General 

RICHARD E. GRAY III 

Executive Assistant Attorney General 

Prepared by Jon Bible 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

Susan L. Garrison, Chairman 

Jon Bible 

Rick Gilpin 

Barton Boling 

Bruce Youngblood 

p. 1182