                   ‘i




                                              The Attorney          General of Texas
                                                                August 9, 1983
    JIM MATTOX
    Attorney General


                                             Honorable Gary Thompson               Opinion No. m-55
    Supreme      Court Building
    P. 0. BOX 12546
                                             Chairman
    Austin.    TX. 78711. 2548               County Affairs Committee              Re: .Whether a" outgoing board
    51214752501                              Texas House of Representatives        of directors of Lavaca Hospital
    Telex    9101674-1367                    P. 0. Box 2910                        District may take any action
    Telecopier     5121475-0266
                                             Austin, Texas   78769                 after the annual election and
                                                                                   prior to canvassing votes for
    1607 Main St.. Suite 1400                Honorable Brad Wright                 the election
    Dallas. TX. 75201.4709                   Chairman
    2141742.6944                             Committee on Public Health
                                             Texas House of Representatives
    4624 Alberta        Ave., Suite    160
                                             P. 0. Box 2910
    El Paso. TX.        79905.2793           Austin, Texas   78769
    9151533.3484
P                                            Dear Representative Thompson and Representative Wright:
    ,220 Dallas Ave.. suite           202
    Houston.     TX. 77002-6986
                                                    You have inquired about the validity of actions taken by the
    7131650-0666                             board of directors of the Lavaca Hospital District at a meeting held
                                             on April 4, 1983. This hospital district was created by House Bill
                                             No. 509, enacted in 1975. Acts 1975, 64th Leg., ch. 16, 91, at 23.
    606 Broadway.          Suite 312
                                             See V.T.C.S. art. 4494q. The essential facts, as set forth in a
    Lubbock.  TX.         79401-3479
    8061747-5236
                                             letter   from Representative Wright, are as follows:

                                                         The Lavaca Hospital District is governed by a"
    4309 N. Tenth, Suite 6                            elected board of directors of seven members who
    McAllen.     TX. 78501.1665                       serve for two year staggered terms; four of which
    5121662.4547
                                                      are elected in odd-numbered years, and three are
                                                      elected in even-numbered years.       The question
     200 Main Plaza. Suite 400                        posed herewith involves actions on old business
     sari Antonio, TX. 76205-2797                     that were taken by the board of directors on April
     5121225.4191
                                                      4, 1983.    The April 4 board actions on old
                                                      business included the approval of minutes and a
     An Equal opportunityi                            resolution that was the culmination of several
     affirmative        Action   Employer             years of study and effort by the then-current
                                                      board, earlier boards of directors, and the
                                                      board's physician recruitment comnlittee. The
                                                      board voted (5 for, 1 against, 1 abstaining) to
                                                      authorize the making of a recruitment offer to a
                                                      physician needed by the community who had been
                                                      recruited    for   some    time    to    come   to
                                                      Hallettsville. . . .




                                                                          p. 229
                                                                 .


Honorable Gary Thompson
Honorable Brad Wright
Page 2       (JM-55)




            Any business transacted by the Lavaca Hospital
         District according to the hospital's legislative
         enactment, must be by a vote of at least 5 to 2.
         Article 4494q, ch. 16 (H.B. NO. 509. 64th
         Legislature, Regular Session, 1975) V.T.C.S. The
         question about the legality of the business
         conducted by the board on April 4 has been raised
         by three new board members.         The   business
         transacted by the old board about which questions
         have been raised was conducted on April 4, 1983,
         after the election of new officers but prior to
         the canvassing of the votes, the qualification of
         the newly elected board members and their swearing
         I", which occurred at the April 4 meeting after
         old business was transacted.

     The question presented is as follows:

         Was the action by 5 out of 7 incumbent members of
         the Lavaca Hospital District on April 4, 1983, in
         conducting old business which consisted of the
         approval of minutes from the previous meeting, and
         the approval of an offer to be made to recruit a
         physician to practice in the community, a lawful
         or an unlawful exercise of their power as
         directors when the action was taken after the
         election of three new board members but prior to
         their being qualified, the votes being canvassed,
         and their being sworn in as new board members?

We conclude that this action was legally taken.

     Article XVI, section 17 of the Texas Constitution, the so-called
"holdover" provision, provides that:

         All officers within the State shall continue to
         perform the duties of their offices until their
         successors shall be duly qualified.

As this office said in Attorney General Opinion V-760 (1949):

          The purpose of [this] constitutional provision is
          to insure, in so far as possible, that there be no
          cessation in the functions of government. It
          continues the officer in the office with all the
          powers incident thereto until his successor has
          duly qualified. Jones v. City of Jefferson, 66
          Tex. 576, 1 S.W. 903; State v. Jordan, 28 S.W.Zd
          921 (Cl". App. 1930, writ dism'd); 34 Tex. Jur.
          373, Officers, Sec. 31; 46 C.J. 968, Officers,
          Sec. 110; annotation 74 A.L.R. 486.
.



    HonOrable   Wad     Wright
    Page 3            (JM-55)




    See also, s.    Pyote Independent School District v. Estes. 390 S.W.Zd
    ~(1Tex.i".   App. - El Paso 1965. writ ref'd n.r.e.); Attorney General
    Opinions M-857 (1971); V-868 (1949).

         The directors of the Lavaca Hospital District are clearly
    "officers" within the meaning of article XVI, section 17. Under this
    co"stit"tio"al provision, officers who hold over until their
    successors have duly qualified are de jure officers. Attorney General
    Opinion M-857 (1971) and authorities cited therein. Thus, until their
    successors duly qualified for office on April 4, the directors of the
    Lavaca Hospital District who were not reelected on April 2 were &
    ~    officers and were therefore legally entitled to exercise all of
    the rights and perform all of the duties associated with their office.
    In our opinion, these rights and duties clearly include the right to
    take the actions in question here.

         It has been suggested that the actions of the board at the April
    4 meeting were illegal because section 4(c) of House Bill No. 509
    provides that the ten" of office of each director shall automatically
    expire on the date on which the director's successor is elected. It
    has been argued, in other words, that section 4(c) provides that the
    term of office of each director shall run from election day to
    election day, and, therefore, that after April 2, the board "ceaseId]
    to function as a decision making body and exist[edl only to fulfill
    its ministerial function of canvassing the votes and declaring the
    results of the election." Brief of Lavaca County Attorney, at p. 2.
    We disagree.

         Section 4(c) does provide for one or two year terms for each
    original director of the district. These terms expired on the first
    Saturday in April of either the first or second year following the
    creation of the district.     Section 4(c) also provides that the
    original directors' "[sluccessors shall be elected. . . for two-year
    terms." It is therefore clear that the terms of office of the
    directors who were not reelected on April 2 ended on that date.

         It does not follow, however, that after April 2, these directors
    were powerless to do anything other than canvass the votes and declare
    the results of the April 2 election. To accept this argument would be
    to conclude that for approximately two days, there was an insufficient
    number of directors clothed with the power to take official action.
    If this were true, the board could not have governed the district
    during that two day period -- even if, during that interim, an
    emergency had arisen and official action had become necessary.

         The purpose of article XVI, section 17 of the constitution
    obviously was to cover such situations as this. This provision was
    designed to ensure an orderly transition and to avoid an interruption
    in governing authority. Even though section 4(c) of House Bill No.
    509 provides that the terms of office of directors of the hospital
    district officially run from election day to election day, directors



                                     p. 231
Honorable Gary Thompson
Honorable Brad Wright
Page 4      (JM-55)




who are not reelected continue to serve as & lure officers until
their successors have duly qualified for office. Put another way,
section 4(c) cannot, in light of article XVI, section 17, be read
literally to create a hiatus in governing authority.

     It has also been suggested that the actions of the board at the
April 4 meeting were illegal because, under the Election Code, the
only function which the board could perform at that meeting was to
canvass the votes and declare the results of the April 2 election.
Again, we disagree.

     The Election Code does require the board of directors to meet on
"the Monday next following the day of election or sooner" to, inter
&,    "open the election returns and canvass the result." Elec. Code
art. 8.34.   See also Elec. Code art. 8.29a. However, neither these
provisions of the code nor any other statute or bylaw to which our
attention has been directed stipulates that this is the only action
that may legally be taken at that meeting. Such a construction,
moreover, would create the same problem discussed above: a period of
time, albeit a short one, would exist during which the board could not
legally do anything other than deal with election matters. As we have
noted, article XVI, section 17 exists to insure that no such time
period can exist.

     In sunsnary,we conclude that (1) no statute or bylaw of which we
are aware provides that, at the April 4 meeting, the board could &
canvass the votes of the April 2 meeting and declare the results of
that election; (2) if such a provision did exist, its validity would
be dubious in light of article XVI, section 17 of the constitution;
(3) although the terms of office of the directors who were not
reelected on April 2 officially expired on that date, these directors
continued to seTYe as &       jure officers until their successors
qualified for office on April 4; and therefore (4) the actions taken
by the board on April 4 were legal.

                             SUMMARY

             The directors of the Lavaca Hospital District
          who were not reelected on April 2~ did not act
          illegally in considering old business of the
          district at a meeting held on April 4 prior to the
          qualification of their successors as director*

                                       Jtz7-

                                                MATTOX
                                        Attorney General of Texas




                              p. 232
.   .


        Honorable Gary Thompson
        Honorable Brad Wright
        Page 5       (JM-55)




        TOM GREEN
        First Assistant Attorney General

        DAVID R. RICHARDS
        Executive Assistant Attorney General

        Prepared by Jon Bible
        Assistant Attorney General

        APPROVED:
        OPINION COMMITTEE

        Rick Gilpin, Acting Chairman
        Jon Bible
        David Brooks
        Colin Carl
        Jim Moellinger




                                       p. 233
