i

Honorable T. J. Crowe, Secretary

Texas State Board ofMedlcal Examiners Texas **Bank** Building Dallas, Texas Dear Sir: Opinion No. O-3183 Re: Who are the properly authoria+d members ofthe Texas State Board ofMedl

### calExaminers 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 

### offour members of this board expired th$ 

### year. Two ofthem, Drs. Buie and Connally were re,appointed, and Dr. W. ‘C.

### Morrow, thdthird man was rea$#olnted to serve out the unexpired term ofDr. Buie, who was given **a six-year**  **term. “One**  ofthe two new appointees, Dr. Crabb, ofFort Worth, was confirmed by the **Senate** the day follpwing the close ofthe June examination meeting, the other%ominee, Dr. Sparks of Dallas uptothis writing has not been confirmed by the Senate.

“All ofthe examinations were conducted by the then existing members ofthe board, who 

### are now grading the papers ofthe examlneer Lntheir 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 

### ofthe board who examined the 

### clasres Ineach of the **12 eubjectr**  who should sign the license certificates, dated 

### aaof July tlst, aotwithstanding commission may have been issued to two new members in the meantime. Is this 

### thecorrect procedure, inview ofthe **fact** that the board Lntends, as usual, to reorganize after the work ofIts predecessor has been finished. ,

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

direct its action in completton ofthe June examinations and the issuance ofvalid license certificates, ln order to avoid subsequent question ofthe legality of its closing official duties,” We also quote from your supplemental request as follows:

“Referring toyour letter ofJuly 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 ofthe June examinations, and we should have your opinion before the board on that date, in order to determine bywhom the license certificates earned by the examinees ofsaid examination shall be signed.

“In this connection Imight mention that none ofthe new appointees have upto this time presented to the board the commission issued to them by the Secretary ofState authorizing them to assume the duties ofboard members. It is presumed they will do so in the meeting ofthe 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 ofTexas.” The Act is carried **in**Vernon’s Civil Statutes under Chapter 6ofTitle 71, as Articles 4495 and 4498, and asArticle 739 ofVernon’s Penal Code ofTexas. The Act became effective April 13, 1931.

Article 4495 reads, inpart, as follows:

“The Texas State Board ofMedical Examiners shall consist of twelve men, learned in medicine, legal and aq-., tlve practitioners inthe State ofTexas, who shall have resided and practiced medicine in this State, under a diploma from a legal and reputable college of medicine of the school towhich 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 ofthe State. Ofthe members first appointed, four shall serve for a term oftwo years, or until their successors shall be appointed and qualified; four shall serve for aterm of four years, or until their successors shall be appointed and qualified; and the remaining four members shall serve for aterm’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 ofeach member, of the Board first appointed, his successor shall be appointed by the Governor ofthe 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 ofMedical Examiners. The letter submitting the names ofthe appointees issued by the Governor under the Act, specified the date of termination of the respective terms ofoffice provided for and doubtless calculated each ofthem from the effective date of‘the Act, to-wit, April 13, 1931. A further examination of the submission ofappointments of the subsequent Governors ofthis State show that the date ofthe expiration ofeaoh term of office ofan appointee to said Board was calculated and the date ofexpiration ofthe term of office was destgnated as April 13, ofeach respective year.

The records ofthe Secretary ofState show that onDecember 30, 1936, Dr. N. D. Buie was appointed to fill the unexpired portion ofa six year term toexpire 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 ofthe Board ofMedical Examiners for six years expiring April 13, 1947,

Dr. H. F. Connally ofWaco, McLennan County

(re-appointment) Dr. Sam F. Sparks, ofDallas, Dallas County

(to succeed Dr. R. H. Peterson) Dr. M. H. Crabb, ofFt. Worth, Tarrant County

(to succeed Dr. W. C. Morrow) Dr. N. D. Buie ofMarlin, Falls County

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

“To be amember ofthe Board ofMedical Examiners tofill the unexpired term of Dr. N. D. Bule, appointed to asix year term: Dr. John A. Hart, ofBeaumont, Jefferson County, (term expires April 13. 1943):’ On June 5, 1941, the Governor submitted tothe 47th LegislatureHonorable T. J, Crowe, p,age 4 (Opinion No. O-3183)

the following:

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

ofBeaumont will be unable to accept appointment on the Board ofMedical Examiners and, therefore, Iam withdrawing his name for confirmation.” On June 16, 1941, the same Governor submitted to the Senate ofthe 47th Legislature the following:

“I ask the advise, consent and confirmation of the Senate tofollowing appointments:

“TO be a member ofthe Board of Medical Examiners, term toexpire April 13, 1943: Dr. W. C. Morrow ofGreenville, Hunt County.” The records ofthe Secretary ofState also show that the appointees referred towere 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, 1’941; Dr. Morrow, June 18, 1941. The same official records show that each ofthe above named Doctors were duly issued commissions onJune 18, 1941, with the exception ofDr. 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 ofthe Texas State Boa:?d cfMedical Examiners.

Under Article 16, Section 17, of OX-Texas Constitution, all officers within the State shall continue to perform the duties ofoffice until their successors are duly qualified. This constitutional provision is applicable to members ofthe Texas State Board ofMedical Examiners. An incumbent who holds over continues in office with all the powers incident thereto until a successor has duly qualified. He is ade jure and not ade facto officer. Though his term has expired, he may continue to perform the duties ofthe office. 34Tex. Jur. 373.

Under the laws ofthis State we are ofthe opinion that member of the Texas State Board ofMedical 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 ofoffice has been duly issued by the Governor and attested by the Secretary ofState; (4) the appointee has taken the required constitutional oath of office in the county ofhis 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 towhich 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 ofthe opinion that, in the absence of a statute to the contrary, all rights and duties ofthe predecessor in office terminate upon the qulification 

### ofthe new officer.

From adiscussion 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 ofsaid Board until such time as their successors have duly qu,alified in the manner heretofore discussed. Any official acts performed by either ofthem, 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 ofthe Texas State Board ofMedical Examiners. It is also our opinion that their successors, upon becoming duly qualified, would succeed toall 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 ahold 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 ofthe Board. 34Tex. 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 ofDr. N. D. Buie, which expires onApril 13, 1943.

You *are, therefore, advised that the only authorized members ofthe Board who have authority to perform any official act, as members thereof, are those who, at said time, are lawfully holding office. Ifnone of the newly appointed members have, at the time ofthe meeting referred toHonorable T. J. Crowe, page 6(Opinion No. 3183)

inyour 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, Ifoxithe 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.epractical 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 ofan official act has been completed before the termination ofamember’s official status. The problem, under the presently existing law, is **one**tobe solved by the genius of the Texas State Board ofMedical 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