                      The Attorney                General of Texas
                                           June   9,   1981
MARK WHITE
Attorney General


                   Mr. Don R. Stiles                               Opinion No. ~~-355
                   Executive Director
                   Texas Adult Probation Commission                Re: Term of office of members of
                   P. 0. Box 12427                                 Texas Adult Probation Commission
                   812 San Antonio, Suite 400
                   Austin, Texas 78711

                   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 of article 42.121 provides that:-

                                   The commission shall consist of three judges of the
                               district courts of Texas and two citizens of Texas 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 2.03 provides 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 six years.

                                   (b) The appointing authority shall draw lots to
                               determine which members serve two, four, and six-
                               year terms.

                   The first meeting of the commission             was called in September,   1977, ss
                   required by section 2.06faX

                         You have requested our opinion regarding these questions:




                                                       p.   1179
Don R. Stiles - page 2     @w-355)



                   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             42.12 of the Code of Criminal
   Procedure. Section 3 of the 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 42.121 and the amendments to section 10 of 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 on June 10, 1977, the effective date of the 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 is silent
    as to 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 a term of office is subject to doubt, the interpretation which would limit such term
    to the shortest time should be followed. It then stated that:

                 [Ii t would appear that a. . . commission. . . created by a. . .
                 statutory    enactment. . . would come into existence on the
                 effective date of the. . . enactment. . . [II t 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 would not of itself seem to affect the
                 time at which the term of office 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 is controlling, 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 of the term of office of




                                                P. 1180
Don R. Stiles - page 3   (~~-355)



                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
                is reaffirmed in this 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 in Attorney General Opinion N-338).

         The Texas Adult Probation Commission is governed by a multi-membered board
   with staggered terms of office. Accordingly, absent any indication that the legislature
   intended otherwise, we conclude that the commencement date of the terms of office
   of the initial appointees to the commission was June 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 42.121 which 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.

          We answer this question in the negative. We believe 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 of an office is distinct from the tenure of an
              officer, “the term of office” is not affected by the holding over
              of an incumbent beyond the expiration of the term for which he
              was appointed; and a holding over does not change the length of
              the term, but merely shortens the term of his successor.’

  See also Spears v. Davis, 398 S.W. 2d 921 (Tex. 1966).       Based upon this quotation,
  Attorney General Opinion M-338 concluded that:

              The fact that an appointment           was not made on the
              commencement date of the term of office would not change the
              length of the term, but it would merely shorten the length of
              time that the individual so appointed could serve in the 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 on June 10, 1977.




                                        p. 1181
Don R. Stiles - page 4   (~~-355)



   The terms of office of the next succeeding commission members commenced, or will
   commence, two, four, and six 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 of Texas

JOHN W. FAINTER, JR.
First Assistant Attorney General

RICHARD E. GRAY III
Executive Assistant Attorney General

Prepared by Jon Bible
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Susan L. Garrison, Chairman
Jon Bible
Rick Gilpin
Barton Boling
Bruce Youngblood




                                            p.   1182
