                               OFFICE      OF   THE   ATTORNEY         GENERAL    OF TEXAS
          I                                                                                        ..’
                                                          AUSTIN
                 GROVER    SELLERS                                                       ._
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                 The State-;ard or'mbalming
    .m           Austin      - Texas
                                        '.                         ,
                 Denti~en:                       :           dttention:           Mr. Xhas. B. Cook,
                              ~~                I     .:                       ,. secretary
                                                                                          n




                         Yourrequest r0r an opini
                 the above subject natter ~bs as fo




                              the Boar


                                                                   rm; 'however,this



                                                 t Goorth,Texas                     Bday31, 1945
                                                 tin, Texas                         Nay-31, 1947
                                                 cKinney, Texas~                    May 31; 1947
                                                  Bowle, Texas                      my    3415x8
                                                 , Dallasi.Texas                    May 31, 1949
                                           , Lamsa, Texas                           May 31, 1949
                         Would it be legal for the Governor to make either
                 a three-year or a six-yeezap~ointient, May 31, 19451"

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          The State Board Of mbelmlng - Rage 2
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                  The rule governing the tenure dr.en officer Is,
          that where a statute creates an offloe and prescribes the
          length or the term or the incumbent,without fixing the
          date;,of-thebe&Ming   or termination of such term, the
          date of the first aorointment determines the beginning of
          the tenure of such appointee and all successivetenures.
          .(SeeOpinion Ho. o-5096)
                 The legislativegenealogy or the State &ard of         '
          Embalming Is as r0110ws:                        ..
                  Senete.Blil76; Chapter XCV, or the &neral Lawi
          or the 28th Legislature (1903) first establishedthe Board:
                   *There is hereby established end created a
              Board to be knotinas-the State~Boerdof Bnbalm-
              ing. The said Board shall.consistor rive (5)
              MeGbere to be appointed by~the State Health-O?-         .'
              ricer, end all vacancies.occurringIn the Board
              shall be filled by the St::,te Health Orricer for
              the unexpired terzn.'The term of eech.mesbercf
_.            said Board shall be for two years, except those
              which~are first appointed, who shall serve as
              roiiows:    One ror one yeer, two'ror-*o years
              and two for three years. the State Health Of-
              ,ficer shall designate the number of years~in
              .ht.s appointment each member shall serve. The
              members or said Board shall be.practlcalem-
              balmers,~havlngexperience in said business and
              the care or and the disposition ot dead.hu5e.n
              bodies. The members of said Board shall be
              altizsns of this iState.-All eligible for se-
              appointment: The appointing officer shall re-
              move~any member or said Board for neglect of
              duty, incompetencyor eproper~conduct.          .'~~
               ~ ,?TheBoard shall be appointed on or be-    ~,
              ror the 1st day or June, 1903, and all vacan-
              oies occurring thereafter,by the expiration
              of their respe6tive terms of'office shall be
              rilled annually thereafter on the aforesaid
              date."
                   Senate Bill No. 182,'Cha ter 324, of the Regular
          Session of the 44th Legislature 71935) wended S. B. No. 76,
          as rou05vs:
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          ,:*TheState Board or Babalming shall oonslst
   .:
    .:  oi’rive~ (5) members, whc shall be appointed by
     .~~the State Board 09 Health. and who shall bc ll-           ._.   ‘~1.
 I,..:  oedaed embalmers, experletkd In said business,
   ...‘.F.
.Y ~.   and the care and disposition of dead huxau Mdies.
        TheTterms or orrlce or the Wesent membera o’ithe
        Board shall not be erfected by this Act but as
     -.‘theterms or otrloe of the present members expire
:       after the efieotive date or this Act, suoce3aor.3          c
                                                                        <
        shall.be appointed ior the following terms: :Two    ,.
        (2) for a period of two (2) years; two (Z),tOr a
 ._‘:.perkador rour (4) years, and one (1) ror a period
        of-skx (6) years, the first vacenciesto.be rllled
     :’by. ap lntments for two.(2) years aad the next iOr               >.~
        four p”
              a) years and thF;next for six (6) years. The              $
        appointees shall serve for the term designated in
.,::if:
      1 their eppolntment,~ or until their suooessors shall
    ~’ be appointed and shall have qualiried, unless soon-
        er r@noved rOr oause.R
       Xnally, Senate Bill Ho. 276 or the 46th Legislature,
Regular Session, provides:           .,._,‘.
     ;
         The’ State Board or.&nbalming shall consist ‘:
     ei .six’(6) members who shall be llccnsed~embalm-
     era experienced, in the buaineas and in the care
     and disposition oi dead human bodies. -.The~mem-
     hers of said IBoardholding office at the time ot    .     ’     1.
     the effective date or this Act shall.continue‘to :        s   ..
     hold ortlce ror the duration of the text Zor whi’oh      .~ ...”
                                                                    1::
     they.were eppotited. Any vacancies existing on           a     i
     ,the.Board at.the time’of the ,effeo~tive
                                             date of
     this Aot shall be filled by the Qvernor of Texas
     subject to confirmationby the ,Senate,and the.~.
     Governor shall thereaftor’havethe power to fill
     veoanoles OE the Board as they occur, and shell
     In ap&olnt,i.ngsaid members so designate their
     terms that txo (2) places on the iWrd.shall be-
     come vacant eaoh tw (2) years. The term or or-
     fioe ot each member shall be skx (6) years, All
     apEointmentsshall be cenflrmed by a tw+thlrds
     vote of the senate of .Tesas. Any vacency in an unexpired
     term ~ahallbe tilled by apFolntment oi the Goyernor
     rar the unexpired term.*                     .
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                  or, Senate Bill 276_became
                                           _ erfectlve September~
                                                          ~.       22
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          1939, at.which time there existed a vacancy on the Board (the
          sixth newly created member) .and the Governor was for the first
   :    : time authorized to make an appointment. Prior to that time
'F+Y '- ~Ahere was no vacancy (sixth) to be filled. Eevertheless,it
        ~.appears’from the records of the Searetary or’state that on
          June 16. 1939. Governor O’Daniel atteanted to anmint Mr. Rav
          QOwderVof Jort ‘.iorth.,
                                 ior a six-year term, expiring Crap31,:
          1945;  Aocording to the records of the Secretary of State’s
         ‘ortloe,at the time or the errective date or Sena’tefill NO.
          276, the Board consisted of A, B. Rogers, whase term would ex- ”
         ,plreBay 31, 1943, George Loudermilk, whose term would expire
         Hqy 31, 1943, Z. B. Ham, whose term would expire Bay 31, 1940,
          Charles B, Cook, whose term would expire Bay.31, 1940, and ..‘,:yr
                                                                               i:
         R; L. Burgess, zhose term would expire iSa1942.     .
                                                                               .,.?
             _ Prior to the eriective date or suoh Bill, therefore,
        the Board legally con&&ted only of the above-nemed rive mem-
        ber -f Rogers, Loudermilk,,Eem,Cook and burgess,w+th expira-
        tions as a’uoveshown.
                  By and -largeit was the &ntenti&n of the~.Leglslature
         in Senate Bill No. 276, creating a six-member Boards,~that*two
         (2) placed, on the Board shall!beuomeYaoant ‘eachtwo’(2) years.*
            . -!
                  The only way to give effect to that intention (and the
        proper way; vrethink) Is to treat the attempted appointment of
        Mri Crowder as void landor no errectPunti1the effective date
        of Senate Bill 276, at which time it should be given the effect
        of,a vaoancy appoinjnnent  terminatingwith the term or Idr.Burgess,’
         on, to-wit, Yay 31, 1942,~at which time the position was open
        ior a full six-year term ripe ‘for appointment. Sinoe,no such
   .
         appofntmentat that time BBS made, it would follvw that=.
        Crowder has ‘sincesaid time held over under Section-17, or
        Article XVI, or the Constitutionproviding that, *Ail orrlcers
        within this State shall &ontinue to perform the duties ot their
        offices until their suaeffssorsshall be d&y qualified.” His
        oi$icial .actsat aU’tii&s.in this OOMeCtiOlj    have been per-
        rectly legal, buf there exists a vacancy ror the balance of                 ..
        the term expiringMay 31, 1942. From this it follows the
        Governor may make such appointmentfor such vacancy at ,any
        time:


                                         ATTORNEY GEiJEML OF TUM
        AF?ROVBDRAY 16, 1945’
                                         BY     _.
        Carlos Ashley   (9)                             Ooie Speer
                                                  ,:.   :.Assistant
        FIRST ASSISTANT                            ,:,,,.
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