i 

Honorable T. J. Crowe, Secretary 

Texas State Board of Medlcal Examiners 

Texas Bank Building 

Dallas, Texas 

Dear Sir: Opinion No. O-3183 

Re: Who are the properly authoria+d members of the 

Texas State Board of Medlcal Examiners to issue valid 

medical certificates? 

Your request for an opinion from this department has been rcceived and considered. We quote from your request: 

“The terms of office of four members of this board 

expired th$ year. Two of them, Drs. Buie and Connally 

were re,appointed, and Dr. W. ‘C. Morrow, thdthird man 

was rea$#olnted to serve out the unexpired term of Dr. 

Buie, who was given a six-year term. 

“One of the two new appointees, Dr. Crabb, of Fort 

Worth, was confirmed by the Senate the day follpwing the 

close of the June examination meeting, the other%ominee, 

Dr. Sparks of Dallas up to this writing has not been confirmed by the Senate. 

“All of the examinations were conducted by the then 

existing members of the board, who are now grading the 

papers of the examlneer Ln their respective subjects, and 

it is the general averages made oa such gradlng that awards 

of license will be made by the Board on July Zlst, and unlees your department rules otherwise, the members of the 

board who examined the clasres In each of the 12 eubjectr 

who should sign the license certificates, dated aa of July 

tlst, aotwithstanding commission may have been issued 

to two new members in the meantime. Is this the correct 

procedure, in view of the fact that the board Lntends, as 

usual, to reorganize after the work of Its predecessor has 

been finished. , 

“If the board should proceed otherwise, will you kindly 
Honorable T. J. Crowe, page 2 (Opinion No. O-3183) 

direct its action in completton of the June examinations 

and the issuance of valid license certificates, ln order 

to avoid subsequent question of the legality of its closing official duties,” 

We also quote from your supplemental request as follows: 

“Referring to your letter of July 5th, concerning 

our request for an opinion, No. O-3183 assigned to 

Walter Koch, this is to advise you that the license certificates referred to therein are due to be issued on 

Sunday, July 2Oth, which is the date set for completion 

of the work of the June examinations, and we should 

have your opinion before the board on that date, in order 

to determine by whom the license certificates earned by 

the examinees of said examination shall be signed. 

“In this connection I might mention that none of the 

new appointees have up to this time presented to the board 

the commission issued to them by the Secretary of State 

authorizing them to assume the duties of board members. 

It is presumed they will do so in the meeting of the 2Oth, 

as above mentioned.” 

The 42nd Legislature, Regular Session; 1931, enacted House 

Bill No. 7, which Act is generally referred to as tie “Medical Practice 

Act of Texas.” The Act is carried in Vernon’s Civil Statutes under Chapter 6 of Title 71, as Articles 4495 and 4498, and as Article 739 of Vernon’s 

Penal Code of Texas. The Act became effective April 13, 1931. 

Article 4495 reads, in part, as follows: 

“The Texas State Board of Medical Examiners shall 

consist of twelve men, learned in medicine, legal and aq-., 

tlve practitioners in the State of Texas, who shall have 

resided and practiced medicine in this State, under a diploma from a legal and reputable college of medicine of 

the school to which said practitioner shall belong, for 

more than three years prior to their appointment on said 

Board. n . Within thirty days after this Act becomes 

effective, the members of the first Board, as provided in 

this Act, shall be appointed by the Governor of the State. 

Of the members first appointed, four shall serve for a 

term of two years, or until their successors shall be 

appointed and qualified; four shall serve for a term of 

four years, or until their successors shall be appointed 

and qualified; and the remaining four members shall 

serve for a term’of six years, or until their suhessors 

shall be appointed and qualified. Thereafter, at the ex- 
Honorable T. J. Crowe, page 3 (Opinion No. O-3183) 

, 

piration of the term of each member, of the Board 

first appointed, his successor shall be appointed by 

the Governor of the State, and shall serve for a term of 

six years, or until his successor shall be appointed and 

qualified. . ” 

Pursuant to the authority vested in the Governor by the above 

Statute, appointments were made to the places created on the Texas State 

Board of Medical Examiners. The letter submitting the names of the 

appointees issued by the Governor under the Act, specified the date of 

termination of the respective terms of office provided for and doubtless 

calculated each of them from the effective date of ‘the Act, to-wit, April 

13, 1931. A further examination of the submission of appointments of 

the subsequent Governors of this State show that the date of the expiration of eaoh term of office of an appointee to said Board was calculated 

and the date of expiration of the term of office was destgnated as April 

13, of each respective year. 

The records of the Secretary of State show that on December 

30, 1936, Dr. N. D. Buie was appointed to fill the unexpired portion of a 

six year term to expire April 13, 1943. 

On June 2, 1941, Governor W. Lee’G’Daniel submitted the 

following to the 47th Legislature: 

“I ask the advise, consent and confirmation of the 

Senate to the following appointment: 

“To be members of the Board of Medical Examiners 

for six years expiring April 13, 1947, 

Dr. H. F. Connally of Waco, McLennan County 

(re-appointment) 

Dr. Sam F. Sparks, of Dallas, Dallas County 

(to succeed Dr. R. H. Peterson) 

Dr. M. H. Crabb, of Ft. Worth, Tarrant County 

(to succeed Dr. W. C. Morrow) 

Dr. N. D. Buie of Marlin, Falls County 

(to succeed Dr. M. M. Brown). 

“To be a member of the Board of Medical Examiners 

to fill the unexpired term of Dr. N. D. Bule, appointed to 

a six year term: Dr. John A. Hart, of Beaumont, Jefferson 

County, (term expires April 13. 1943):’ 

On June 5, 1941, the Governor submitted to the 47th Legislature 
Honorable T. J, Crowe, p,age 4 (Opinion No. O-3183) 

the following: 

“I am sorry to inform you that Dr. John A. Hart 

of Beaumont will be unable to accept appointment on 

the Board of Medical Examiners and, therefore, I am 

withdrawing his name for confirmation.” 

On June 16, 1941, the same Governor submitted to the Senate 

of the 47th Legislature the following: 

“I ask the advise, consent and confirmation of 

the Senate to following appointments: 

“TO be a member of the Board of Medical Examiners, term to expire April 13, 1943: Dr. W. C. Morrow 

of Greenville, Hunt County.” 

The records of the Secretary of State also show that the appointees 

referred to were confirmed by the Senate as fol.lows: 

Dr. Buie, June 18, 1941; 

Dr. Connally, June 18, 1941; 

Dr. Crabb, June 18, 1941; - 

Dr. Sparks, July 3, 1’94 1; 

Dr. Morrow, June 18, 1941. 

The same official records show that each of the above named Doctors were 

duly issued commissions on June 18, 1941, with the exception of Dr. Sparks, 

The records do not sho&, whether or not his l:ommission has yet beenissued. 

We now consider when the new appol?‘ees, whom we have referred 

to, become members of the Texas State Boa:?d cf Medical Examiners. 

Under Article 16, Section 17, of OX- Texas Constitution, all officers within the State shall continue to perform the duties of office until their 

successors are duly qualified. This constitutional provision is applicable to 

members of the Texas State Board of Medical Examiners. An incumbent who 

holds over continues in office with all the powers incident thereto until a successor has duly qualified. He is a de jure and not a de facto officer. Though 

his term has expired, he may continue to perform the duties of the office. 

34 Tex. Jur. 373. 

Under the laws of this State we are of the opinion that member of 

the Texas State Board of Medical Examiners, under the factsfiubmitted by 
. ‘- 

Honorable T. J. Crowe, page 5 (Opinion No. O-3163) 

you, has duly qualified when: (1) He-has been duly appointed by the 

Governor; (2) his appointment to the office has been duly confirmed by 

the Texas Senate; (3) a commission of office has been duly issued by 

the Governor and attested by the Secretary of State; (4) the appointee 

has taken the required constitutional oath of office in the county of his 

residence as required by law (Art. 4496, V.A.C.S.). We find no statute 

requiring members of the Board to execute an ,official bond. When all 

of these requisites are shown we believe the appointee has duly qualified for the office to which he was appointed and becomes invested with 

all the rights and prlvileges pertaining to said office and is entitled to 

exercise the duties imposed upon his. 

As a corresponding proposition, we are of the opinion that, 

in the absence of a statute to the contrary, all rights and duties of the 

predecessor in office terminate upon the qulification of the new officer. 

From a discussion of the foregoing principles of law, which 

we think are applicable to your proposition, you are respectfully advised 

that it is our,opinion, that Drs. R. H. Peterson, W. C. Morrow, M. M. 

Brown, who have been succeeded on the Board, as hold overs from and 

after April 13, 1941, could legally perform official duties as members 

of said Board until such time as their successors have duly qu,alified in 

the manner heretofore discussed. Any official acts performed by either 

of them, within the scope of their lawful duties, under such circumstances 

would be proper and legal. However, after their respective successors 

have duly qualified we believe their official status ceases to exist and that 

their acts performed thereafter would have no legal status as being acts 

performed by them as members of the Texas State Board of Medical 

Examiners. It is also our opinion that their successors, upon becoming 

duly qualified, would succeed to all powers and duties incumbent upon 

them as members of said Board. 

The status of Dr. H. F. Connally who was appointed to succeed 

himself, would not be changed by such appointment and his acts would be 

official, as a hold over, until such time as he qualified to succeed himself. 

When Dr. N. D. Buie accepts his new appointment by qualifying 

for the six year term on the Board, he would, in our opinion, contemporaneously, by implication, resign from his former status as a member of the 

Board. 34 Tex. Jur. 351. 

Dr. W. C. Morrow seems to have been re-appointed not to 

succeed himself for a six year term but for the unexpired term of Dr. N. 

D. Buie, which expires on April 13, 1943. 

You *are, therefore, advised that the only authorized members 

of the Board who have authority to perform any official act, as members 

thereof, are those who, at said time, are lawfully holding office. If none of 

the newly appointed members have, at the time of the meeting referred to 
Honorable T. J. Crowe, page 6 (Opinion No. 3183) 

in your inquiry, duly qualified in-the manner heret.ofore discussed, 

then they are not at that time authorized to perform any official act 

and approve or sign any certificate. T,he proper persons, under those 

facts, would be the old members of the Board who are holding over 

until their successors are duly qualified. However, If oxi the date of 

your meeting any new member has duly qualified, which fact you can 

ascertain fromhim, then such duly qualified member is the proper one 

and only one to perform an? official act. 

We are not unmindful of th.e practical situation involved and 

the problem confronting the Board;; However, the law, as we have expressed it, is clear and the Legislature has not made any provision to 

cover instances where only a portion of an official act has been completed before the termination of a member’s official status. The problem, under the presently existing law, is one to be solved by the genius 

of the Texas State Board of Medical Examiners. 

We trust that in this matter we have fully answered your 

inquiry. 

APPROVED JUL 18, 1941 

/s/ Gerald C. Mann 

Very truly yours, 

A+TORNEYGENERALOFTEXAS 

ATTORNEY GENERAL OF TEXAS By /s/ Harold McCracken 

Ha:rol.d McCracken 

HM:db:ps Assistant 

APPROVED OPINION COMMITTEE 

By BWB Chairman