# 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. Box12427 812SanAntonio, Suite 400 Austin, Texas 78711 Re: Term ofoffice 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 ofarticle 42.121provides that:-

The commission shall consist of three judges ofthe district courts ofTexas and two citizens ofTexas 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 2.03provides 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 sixyears. (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 Youhave requested our opinion regarding these questions:

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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 42.12of the Code of Criminal Procedure. Section 3ofthe 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 42.121and the amendments to section 10of 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 onJune 10,1977,the effective date ofthe 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 issilent asto 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 aterm ofoffice issubject to doubt, the interpretation which would limit such term to the shortest time should be followed. It then stated that:

[Iit would appear that a. .. commission.

.. created by a. .. statutory enactment.
. . would come into existence on the effective date ofthe.

..enactment.
.. [IIt 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 wouldnot ofitself seem to affect the time at which the term ofoffice 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 iscontrolling, 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 ofthe term ofoffice of

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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 isreaffirmed inthis 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 inAttorney General Opinion N-338). The Texas Adult Probation Commission is governed by a multi-membered board with staggered terms ofoffice. Accordingly, absent any indication that the legislature intended otherwise, we conclude that the commencement date of the terms of office ofthe initial appointees to the commission wasJune 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 42.121which 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. Weanswer this question inthe negative. Webelieve 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 ofan office isdistinct from the tenure of an officer, “the term of office” is not affected by the holding over of an incumbent beyond the expiration ofthe term for which he wasappointed; and aholding over does not change the length of the term, but merely shortens the term ofhis successor.’ See also Spears v. Davis, 398 S.W. 2d 921(Tex. 1966). Based upon this quotation, Attorney General Opinion M-338concluded that:

The fact that an appointment was not made on the commencement date ofthe term ofoffice wouldnot change the length of the term, but it would merely shorten the length of time that the individual soappointed could serve inthe 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 onJune 10,1977.

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The terms of office of the next succeeding commission members commenced, or will commence, two, four, andsix 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 ofTexas JOHN W.FAINTER, JR. First Assistant Attorney General RICHARD E.GRAY III Executive Assistant Attorney General Prepared byJon Bible Assistant Attorney General APPROVED: OPINION COMMITTEE Susan L.Garrison, Chairman Jon Bible Rick Gilpin Barton Boling Bruce Youngblood

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