                               The Attorney        General of Texas
                                                 )ecamber 2, 1985
JIM MA-i-l-OX
Attorney General


Supreme Court Building         Honorable Lloyd Cxiss                     Opinion No.   JM-389
P. 0. BOX 12548                Chairman
Austin, TX. 78711. 2548        Committee on Labor, and Employment        Ret   Whether the city of
512/475-2501                      Relations                              Galveston may remove persons
Telex 9101874.1367
Telecopier 51214750266
                               Taxas House of RsFKeSentetiVaS            appointed to a city board,
                               P. 0. Box 2910                            and related questions
                               Austin, Texas   78769
714 Jackson. Suite 700
Dallas. TX. 752024508          Dear Representative Criss:
214l742.6944

                                    You ask whetF.er the city of Galveston may enact a valid ordinance
4824 Alberta Ave.. Suite 180   which changes the terms of office for members of the city's boards and
El Paso, TX. 79305-2793        agencies. You inquire particularly about the city's authority to
915/533-3484                   change the terms of office of the Park Board of TNstees established
                               pursuant to article 6081g-1, V.T.C.S.
1001 Texas. Suite 700
Houston, TX. 77002-3111             Galveston is s home rule city. You state that the Galveston city
713!223-5958                   code initially provided a two year term of office for the Park Board
                               of Trustees, begtnning September 1 and ending two years later.
                               Recently, Galvestm enacted an ordinance which altered the terms of
606 Broadway. Suite 312
Lubbock, TX. 79401.3479
                               office for the city's various boards and agencies so that all terms
806/747-5238                   would begin on June 1. This ordinance also shortened the terms of
                               present members of the Park Board of TNstees.   Those terms scheduled
                               to expire September 1, 1985, were shortened to expire June 1, 1985.
4309 N. Tenth, Suite S         Terms scheduled to expire on September 1, 1986, are set to expire on
McAllen, TX. 78501-1885
512lSS2-4547
                               June 1, 1986. Ycsu Btate that the city of Galveston wishes to know
                               whether it can :restNcture the terms of office of city boards,
                               specifically the lPark Board of Trustees, to provide for uniform
200 Main Plaza, Suite 400      transition of membership. You ask the following questions:
San Antonio, TX. 782052797
5121225.4191
                                            1. Toes the city of Galveston have the
                                         authority to shorten terms of office of the Park
An Equal OpportunitYI                    Board o,E TNSteeS in order to effectuate a re-
Affirmative Action Employer              StNCtWing    of the terms of office of all city
                                         offices?

                                            2. If not, does the city of Galveston have the
                                         authority, implied or     expressed, to remove
                                         appointt,d board members at will and without
                                         showing good cause?



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Eonorable Lloyd Criss - Page 2 (JM-389)




             3. Does article XVI, section 27 of the Texas
          Constitution appl,y to appointed officials as well
          as to those elrfcted; and are there any other
          statutes or prorisions that would require the
          replacements   far    the  removed   or   resigned
          appointees to fill out only that portion of the
          unexpired terms of the removed or resigned
          appointees or may they serve their full two year
          terms beginning with their appointment date?

     As a home Nle city, Galveston has full power of local self-
government. It may enact suy charter provision or city ordinance not
inconsistent with the const.itution or general law. Tex. Const. art.
XI, 55; V.T.C.S. arts. 1165, 1175, 1176; State ex rel. Rose v. City of
La Porte, 386 S.W.2d 782 ('Iex.1965); City of Eouston v. State ex rel.
City of West University Elate, 176 S.W.2d 928 (Tex. 1943), appeal
dism'd, 322 U.S. 711 (194rqqo     substantial federal question). The
home rule power of Galveston over the Park Board of Trustees must be
exercised consistently  with article 6081g-1, V.T.C.S. This statute
authorizes home rule cities with a population in excess of 40,000
persons to create a "Pars Board of Trustees" for the purpose of
acquiring, improving, equipping, maintaining, financing or operating
public parks. V.T.C.S. art. 6081g-1, 511, 2. The board has numerous
express powers, including the power to issue revenue bonds.        -Id.
97(k). Section 3 fixes the,tNstees' terms of office:

             Sec. 3. The Park Board of Trustees shall be
          composed of ni.ne members      appointed by   the
          governing body of such city, one of whom shall be
          a member of such governing body. Such tNstees
          shall serve for ;rterm of two years from the date
          of their appointment and any vacancies shall be
          filled by appoirz=t    of the governing body of
          such c@y;    provided that five tNstees     first
          appointed shall serve for initial terms of two
          years and four 'trustees first appointed shall
          serve for initia::terms of one year, such initial
          terms to be des:;f;natedby the governing body of
          such city. . . . (Emphasis added).

     With the exception of the initial one year term for part of the
board, the statute establishes a two year term, to begin on the date
of the first appointment. See generally Spears v. Davis, 398 S.W.2d
921 (Tex. 1966). Section 8 of article 6081g-1, V.T.C.S., provides
that

          [tlhis Act shall be cumulative of all other laws
          and of all Home-Rule Charter provisions, but this




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     Honorable Lloyd Criss - Page:3   (m-389)

..




               Act shall take precedence in the event of con-
               flict.

     The term of office and commencement date established by section 3 of
     article 6081g-1, V.T.C.S., take precedence over any conflicting
     charter provisions. Therefore, the city of Galveston does not have
     authority to shorten the terms of office of the .Park Board of
     Trustees, nor has it authority to change the previously determined
     date on which the terms b@n.     See Spears v. Davis, 398 S.W.2d 921
     (Tex. 1966); cf. Attorney Gene=        Opinion B-955 (1977) (absent
     legislative direction. Texas Youth Council may reduce chairman's term
     by resolution). The city of Galveston does not have authority to
     shorten the terms of office of the Park Board of Trustees established
     under article 6081g-1, V.T.C.S. See also Tex. Const. art. XI, 85 (no
     home rule charter or ordinance passed thereunder shall contain any
     provision inconsistent with the constitution or general laws of the
     state).

          You next ask whether, the city of Galveston has authority to
     remove appointed board members at will and without showing good cause.
     A home rule city may remove a city officer pursuant to applicable
     statutes and charter provisions. For example, the Housing Authorities
     Law permits the mayor to remove housing commissioners for ineffici-
     e*cy, neglect of duty, or :misconduct. V.T.C.S. art. 1269k, 5§5, 7;
     see White v. Bolner, 223 8.W.2d 686 (Tex. Civ. App. - San. Antonio
     1949, writ ref'd). The courts have upheld city charter provisions
     authorizing a city to remove an officer by recall election. Banner v.
     Belsterling. 138 S.W. 571 i:Tex.1911). aff'g, 137 S.W. 1154 (Tex. Civ.
     APP. - Dallas 1911). In City of San Benito v. Cervantes, 595 S.W.2d
     917 (Tex. Cl". App. - Ea&and     1980, writ ref'd n.r.e.). the court
     upheld the city commissioner's dismissal of the city manager at will
     and without cause, pursuant to the following charter provision: "He
     shall be r-able    at the vi11 of the city commission on thirty days'
     notice." City of San Benils)v. Cervantes, 595 S.W.2d at 918.

          To determine whether s particular city officer is removable at
     will and without good cause, it is necessary to examine the statutes
     and valid charter provisions applicable to that office. You have
     specifically inquired only about the Park Board of Trustees; there-
     fore, we will not attempt to deal individually with each of the
     numerous boards and agencies affected by the new city ordinance.

          As already determined in answer to your first question, the city
     of Galveston does not have authority to remove members of the Park
     Board of Trustees by reducing the term of office to less than two
     years. See Bonner v. Belsterling. 137 S.W. 1154 (Tex. Civ. App. -
     Dallas 1911). aff'd 138 S.V. 571 (Tex. 1911) (stating in dicta that
     officer may be removed by abolishing office or by legal action
     declaring it vacant). Art::cle6081g-1, V.T.C.S., does not contain any




                                       p. 1782
Honorable Lloyd Criss - Pags 4   (J-M-389)




provision for removing a mamber of the Park Board of Trustees from
office for the remainder cf his unexpired term. A brief which you
submitted with your opinicn request states that the Galveston City
Charter contains only one provision on r-al,       which reads as
follows:

          An9 member of the council or elected or appointed
          officer ore emplo:rae of the city who shall will-
          fully violate any provision of this charter shall
          be guilty of mn:lfeasance in office and upon
          conviction thereof shall forfeit his office or
          employment and may be punished by a fine not
          exceeding Two Hundred Dollars ($200.00) for each
          offense.

Galveston City Charter, art. 14. 54.         This provision does not
authorize the Galveston city council to remove members of the Park
Board of Trustees or any other officer at will and without good
reason. The city may not employ a method of removal which is not
authorized by statute or charter provision. See generally City of
Austin v. Thompson, 219 S.W.:Ld57 (Tex. 1949) (city charter provisions
on filling vacancies in office must be followed by city council). We
answer your second question :Lnthe negative.

     Our answers to your :iirst two questions render it unnecessary
that we address your third question.

                             SUMMARY

             The city of G,r:Lvestondoes not have authority
          to shorten the two year term of members of the
          Park Board of Tzustees established by the city
          pursuant to articlte6081g-1, V.T.C.S. No statute,
          city ordinance or 'charterprovision authorizes the
          city of Galveston to remove members of the Park
          Board of TNSteeS .atwill and without good cause.




                                        JIM     MATTOX
                                        Attorney General of Texas

JACK HIGHTOWHR
First Assistant Attorney Gea'eral




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Honorable Lloyd Criss - Page 5   (3-i-389)




MARY KELLER
Executive Assistant Attorney General

ROBERT GRAY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Susan L. Garrison
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Rick Gilpin. Chairman
Colin Carl
Susan Garrison
Tony Guillory
Jim Moellinger
Jennifer Riggs
Nancy Sutton
Sarah Woelk




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