             TEE     ATTORSEY            GENERAL
                        OF TEXAS


                        October    15,    1990




Mr. Fred S. Brinkley, Jr., R.Ph.         opinion No. JM-1233
Executive Director/Secretary
Texas State Board of Pharmacy            Re: Application of a provi-
8505 Cross Park Drive, Suite 110         sion in article     4542a-1,
Austin, Texas 78754-4594                 V.T.C.S., the Texas Pharmacy
                                         Act, limiting the eligibil-
                                         ity of board members to two
                                         terms (RQ-2129)
Dear Mr. Brinkley:
     You have requested our opinion regarding the eligibili-
ty of a member of the Texas State Board of Pharmacy to serve
another term.
     You explain that a particular individual was appointed
to a full term on the Board of Pharmacy in 1973 and reap-
pointed in 1979.    In 1981, the legislature enacted the
following provision as part of amendments to the Texas
Pharmacy Act:
           (c) A member of the board may not serve
        more than two consecutive full terms.     The
        completion of the unexpired portion of a full
        term does not constitute a full term for
        purposes of this section.
V.T.C.S. art. 4542a-1, 5 10(c). The member in question was
reappointed to the board in 1985. You suggest that he is
eligible to be reappointed in 1991, because the 1981-85
period constitutes %ompletion of the unexpired portion of a
full term," and the appointments in 1985 and 1991 should be
construed as the beginning dates of his allotted full terms.
You contend that to consider the member's prior service at
the time the statute was amended in 1981 would constitute a
retroactive application of the statute.
     It is certainly the settled rule that 'Iastatute is
presumed to be prospective in its operation unless expressly
made retrospective."    Texas DeD’t   of Pu li    Safetv
Sefcikikt;51S.W.2d 239, 24ia (T;;. tip. - Sa: Aztonio 198:;
no       . Furthermore,                retrospective if it




                                  P. 6561
Hr. Fred S. Brinkley, Jr., R.Ph. - Page 2   (JM-1233)



'changes the consequences of acts completed before its
effective date'." pt               568 ;iat$z~- 253, 255
(D.N.H. 1983).               even  a             that  is
retroactively applied is Aot unlawful Qolely   because it
upsets otherwise settled expectations." w
Products Co.cal      553 PensigrU3M , 775 F.2d 24, 27 (2d
Cir. 1985).
     1,nPerrv v. O'FBEEBLL; 212 P.2d 848 (Colo. 1949), a
state constitutional amendent imposed a requirement that
five additional points be added to the final scores of
veterans who sat for state civil service examinations.    A
non-veteran who had taken the examination prior to the
amendment brought suit, claiming that the addition of five
points to the scores of veterans would amount to a retroac-
tive application of the amendment. The court declared:
       An act is not retroactive if it applies to
       persons who presently possess a continuing
       status even though a part or all of the
       requirements to constitute it were fulfilled
       prior to passage of the act or amendments
       thereto.
&,at   852 (guoting Albriahf
men,                82 P.2d 765, 771 (Cola. 1938)).   Anal-
agously, in the situation you present, most of the member's
"requirements . . . were fulfilled prior to passage of the
act." This fact alone does not mean that the statute is
retroactive if his prior service is considered in deter-
mining his future eligibility.
     Likewise, Anders v. Countv Council for Richland County
325 S.E.Zd 538 (S.C. 1985), considered the status of aA
individual who had been hired as a chief investigator for a
solicitor under a statute which provided a means for chal-
lenging employment terminations by an elected official.
Subsequently, a statute was enacted which declared that
employees of a solicitor serve at his pleasure. The inves-
tigator brought suit, contending that application of the
ntermination at will" statut,eto his situation would give
that law retroactive effect. The court concluded that this
was not a case of retroactive application:
       Public officers are created for the benefit
       of the commonwealth, incumbents have     no
       contract or property rights in them, and,
       unless it be otherwise provided by      the
       Constitution, they are subject entirely to
       legislative control. Hence, subject to the



                             P- 6562
Mr. Fred S. Brinkley, Jr., R.Ph. - Page 3   (JM-12331



        Constitution, the General Assembly may fix
        the term, prwide for removal, abolish the
        office, reduce the term, and in every respect
        control the existence, powers, emoluments,
        and tenure of public officers.
&   at 539 (citing w       v. Citv of   Florence, 93    S.E.Zd
215, 220 (S.C. 1956)).
     In Open Records Decision No. 358 (1983), it was argued
that a change in the status of certain property tax infonna-
tion from mopenm to *closedn applied only to information
collected after the effective date of the statute.       The
opinion stated:
        The Open Records Act vests no right in anyone
        to have previously-disclosable information
        remain disclosable notwithstanding an inter-
        vening determination by the legislature that
        it should be withheld from public inspec-
        tion. . . . To be ~vested, a right must be
        something more than an expectation of the
        continuance of an existing law. It must have
        become an entitlement to the present or
        future enjoyment of property or the enforce-
        ment of a demand, or to a legal exemption
        from demands.
&   at 3.
     In the situation you pose, the member had no vested
right to his position on the Pharmacy Board. As the South
Carolina court noted, the legislature could have even
reduced his present term of service or abolished the office
entirely. &B    Attorney General Opinions JM-235 (1984):
H-955 (1977).
     Finally, we note that the legislature could have
entirely excluded from the application of section 10(c) all
members who were serving on the board at the time the
statute was amended. This approach was used in Amendment 22
of the United States Constitution, which limited the term of
office of the President of the United States to two terms,
but specified that it did "not apply to any person holding
the office of President when this article was proposed by
the Congress." Article 4542a-1, however, contains no such
grandfather clause.
     We conclude that a member of the State Board of Pharma-
cy who was appointed in 1973, and reappointed in 1979 and



                             P- 6563
Br. Fred S. Brinkley, Jr., R.Ph. - Page 4      (JM-1233)



1985, is not eligible to be reappointed to the board under
the terms of section 10(c) of article 4542a-1, V.T.C.S.,
which limits membership on the board to two full terms.


          A member of  the State Board of Pharmacy
       who was appointed in 1973, and reappointed in
       1979 and 1985, is not eligible to be reap-
       pointed to the board under     the  terms  of
       section 10(c) of article 4542a-1, V.T.C.S.,
       which was enacted in 1981 and which limits
       membership on the board to tw? full terms.




                                   JIU        MATTOX
                                   Attorney    General of Texas

HARY UBLmR
First Assistant Attorney General
Lou HccREARY
Executive Assistant Attorney General
JUDGE ZOLLIE STEAXLEY '
Special Assistant Attorney General
RENEA HICXS
Special Assistant Attorney General
RICE GILPIN
Chairman, Opinion Committee
Prepared by Rick Gilpin
Assistant Attorney General




                              p. 6564
