HonorableL. J. Wardlaw,Commissioner LivestockSanitaryCommission 2005 W. T. WaggonerBuilding Fort Worth, Texas
Dear Sir: opinionHo. O-1210 Re: Chairmanshipof Livestock SanitaryCommission
We acknowledgereceiptof your letter of July 31, 1939, in which you requestan opinionof this Departmenton the questionof whether or not the Governorof Texas has the authorityto appointa Chairmanof the LivestockSanitaryCommissionto supersedethe Chairmanappointed by a previousGovernorfor a term of office of six years, only two of which have expired.
The followingstatementof the fact situationis condensed from your letter,and we state It here as the basis upon which this opin- ion will be rendered. On February24, 1937, GovernorJames V. Allred, by virtue of the authoritygrantedhim under Article7009, RevisedCivil Statutesof 1925, as amendedby Chapter131, Acts of the 45th Legisla- ture, appointedL. J. Wardlaw as a member of the LiveetockSanitaryCom- missionand designatedhim as Chairmanof the Commieaion. This appoint- ment was for a term of six years. The other two appointeesto the Com- missionwere Roy Jacksonfor a term of two years,and R. H. Martin for a term of four years. Said Roy Jackson'sterm of officeexpiredon May 21, 1939, thereafterGovernorW. Lee O'DanielappointedRoy Loventhal as a member of the Commissionto serve for a period of six years, and named Mr. LoventhalChairmanof the Commission. Thus the question arisesas to whetherthe Chairmanof the LivestockSanitaryCO~iSBiOn is L. J. Wardlaw or Roy Loventhal,and that issue appearsto be the only one which this Departmentis calledupon, at this time, to answer.
We have examinedthe authoritieesubmittedin your brief and we agree with you in the followingconclusionsof law:
1. When the Governor'sappointmentis dependentupon concur- rence of the Legislature,an officercannotbe removedsummarilyby the Governor.
2. When an office is createdfor a definiteterm; the appointee can only be removedfor cause establishedby court decree. - .
HonorableL. J. Wardlaw,page 2 (O-1210)
3. An office is not propertywithin the constitutional pro- vision8againstdeprivingpersonsof property.
4. The expirationof EZIIncumbent'eterm of office creates a vacancy.
It is well settledthat an officerwho holds his office for a term fixed by law cannotbe removedat the pleasureof the executive and that an appointeeholdingan officeunder such conditionscan only be removedfor cause establishedat a hearingat which he is given defi- nite notice and ample opportunityto appear and presenthis defense. See Upshaw YE. Booth, 37 Tex. 126; Ridgewayvs. City of Fort Worth, 243 9. W. 745, and authoritiesthereincited;Dorenfieldvs. State,73 S. W. (2~3)86; Honey vs. Graham,39 Tex. 11.
On January21, 1933, in an opiniondirectedto HonorableWill 1. Martin,Chairmanof the SenateCommitteeon Eominationsof the Gov- ernor,AttorneyGeneralJEIEB V. Allred held that neitherthe Governor nor eny of his successorshad any power over an appointmentonce been made and submittedto the Senatefor approvalunless such power was ex- ercisedwith Senatorialacquiescence.In this connection,AttorneyGen- eral Allred said: "The executivepower investedin the Governoris con- tinuousand knows neithernames, persons,or terms of office."
Article7009, RevisedCivil Statutesof 1925, as amendedby Acts of 1937, 45th Legislature,p. 253, Ch. 131, reads as follows:
"The Governor shall withinthirty (30) days after this Act becomes effectiveby, and with the advice and consentof the Senateappointthree (3) citizensof the State, as a Live Stock SanitaryCommissionof the State of Texas. The Governorshall designateone such member as a Chai-. Each commissionershall give a