i




    Honorable    T. J. Crowe,  Secretary
    Texas State Board     of Medlcal  Examiners
    Texas Bank Building
    Dallas,   Texas

    Dear     Sir:                                          Opinion No. O-3183
                                                           Re:   Who are the properly      au-
                                                                 thoria+d  members      of the
                                                                 Texas State Board of Medl-
                                                                 cal Examiners to issue valid
                                                                 medical  certificates?

                    Your request  for an opinion from this department                has been   rc-
    ceived     and considered.   We quote from your request:

                      “The    terms of office of four members   of this board
                expired    th$ year. Two of them, Drs. Buie and Connally
                were re,appointed,    and Dr. W. ‘C. Morrow, thdthird    man
                was rea$#olnted     to serve  out the unexpired term of Dr.
                Buie, who was given a six-year       term.

                      “One of the two new appointees,    Dr. Crabb, of Fort
                Worth,   was confirmed  by the Senate the day follpwing    the
                close of the June examination   meeting,   the other%ominee,
                Dr. Sparks of Dallas up to this writing    has not been con-
                firmed   by the Senate.

                       “All  of the examinations        were conducted       by the then
                existing    members     of the board, who are now grading            the
                papers of the examlneer           Ln their respective      subjects,  and
                it is the general     averages     made oa such gradlng that awards
                of license will be made by the Board on July Zlst, and un-
                lees your department          rules otherwise,      the members      of the
                board who examined         the clasres In each of the 12 eubjectr
                who should sign the license           certificates,    dated aa of July
                tlst,   aotwithstanding      commission        may have been issued
                to two new members          in the meantime.         Is this the correct
                procedure,      in view of the fact that the board Lntends, as
                usual, to reorganize       after the work of Its predecessor           has
                been finished.          ,

                      “If   the board   should   proceed   otherwise,    will   you kindly
Honorable      T.     J. Crowe,   page   2 (Opinion     No.   O-3183)




         direct   its action in completton      of the June examinations
         and the issuance      of valid license    certificates,    ln order
         to avoid subsequent      question   of the legality     of its clos-
         ing official   duties,”

                 We also      quote   from   your   supplemental        request   as follows:

                “Referring       to your letter of July 5th, concerning
         our request       for an opinion, No. O-3183 assigned       to
         Walter    Koch, this is to advise you that the license         cer-
         tificates    referred     to therein are due to be issued on
         Sunday, July 2Oth, which is the date set for completion
         of the work of the June examinations,            and we should
         have your opinion before           the board on that date, in order
         to determine        by whom the license     certificates  earned by
         the examinees         of said examination    shall be signed.

               “In this connection   I might mention that none of the
         new appointees    have up to this time presented    to the board
         the commission      issued to them by the Secretary    of State
         authorizing   them to assume the duties of board members.
         It is presumed    they will do so in the meeting   of the 2Oth,
         as above mentioned.”

               The 42nd Legislature,    Regular     Session;    1931, enacted House
Bill No. 7, which Act is generally     referred     to as tie “Medical     Practice
Act of Texas.”      The Act is carried   in Vernon’s      Civil Statutes under Chap-
ter 6 of Title   71, as Articles  4495 and 4498, and as Article         739 of Vernon’s
Penal Code of Texas.       The Act became     effective   April   13, 1931.

                    Article   4495 reads,    in part,   as follows:

                   “The    Texas State Board of Medical             Examiners       shall
            consist    of twelve men, learned          in medicine,      legal and aq-.,
            tlve practitioners        in the State of Texas,        who shall have
            resided     and practiced       medicine    in this State, under a di-
            ploma from a legal and reputable               college    of medicine     of
            the school to which said practitioner               shall belong,     for
            more than three years prior to their appointment                     on said
            Board.      n .   Within    thirty   days  after   this  Act   becomes
            effective,    the members         of the first Board,      as provided     in
            this Act, shall be appointed           by the Governor        of the State.
            Of the members         first appointed,      four shall serve for a
            term of two years,          or until their successors          shall be
            appointed     and qualified;       four shall serve for a term of
            four years,      or until their successors           shall be appointed
            and qualified;     and the remaining         four members         shall
            serve for a term’of          six years,    or until their suhessors
            shall be appointed         and qualified.     Thereafter,       at the ex-
Honorable         T.    J. Crowe,   page   3 (Opinion   No.   O-3183)
                                    ,



            piration   of the term of each member,        of the Board
            first appointed,    his successor    shall be appointed    by
            the Governor     of the State, and shall serve for a term of
            six years,    or until his successor     shall be appointed   and
            qualified.    . ”

                 Pursuant   to the authority     vested in the Governor        by the above
Statute,   appointments     were made to the places          created    on the Texas State
Board of Medical       Examiners.        The letter submitting       the names of the
appointees     issued by the Governor        under the Act, specified        the date of
termination      of the respective     terms   of office provided      for and doubtless
calculated    each of them from the effective           date of ‘the Act, to-wit,   April
13, 1931. A further       examination      of the submission       of appointments    of
the subsequent      Governors      of this State show that the date of the expira-
tion of eaoh term of office of an appointee            to said Board was calculated
and the date of expiration        of the term of office was destgnated          as April
13, of each respective       year.

             The records of the Secretary    of State show that on December
30, 1936, Dr. N. D. Buie was appointed    to fill the unexpired portion of a
six year term to expire April  13, 1943.

                 On June 2, 1941, Governor              W. Lee’G’Daniel      submitted   the
following     to the 47th Legislature:

                 “I ask the advise,          consent and confirmation        of the
            Senate to the following          appointment:

                    “To be members          of the Board of Medical       Examiners
            for    six years expiring       April  13, 1947,

                          Dr. H. F.   Connally    of Waco,     McLennan    County
                                       (re-appointment)

                          Dr.   Sam F.    Sparks, of Dallas, Dallas County
                                         (to succeed  Dr. R. H. Peterson)

                          Dr.   M. H. Crabb, of Ft. Worth, Tarrant   County
                                       (to succeed Dr. W. C. Morrow)

                           Dr. N. D. Buie of Marlin,   Falls County
                                      (to succeed   Dr. M. M. Brown).

                   “To be a member      of the Board of Medical  Examiners
            to fill the unexpired    term of Dr. N. D. Bule, appointed     to
            a six year term:      Dr. John A. Hart, of Beaumont,    Jefferson
            County, (term expires       April  13. 1943):’

                       On June 5, 1941, the Governor          submitted   to the 47th Legislature
Honorable      T.   J, Crowe,    p,age 4 (Opinion        No.   O-3183)




the following:

                  “I am sorry to inform you that Dr. John A. Hart
            of Beaumont   will be unable to accept appointment    on
            the Board of Medical   Examiners    and, therefore, I am
            withdrawing   his name for confirmation.”

             On June        16, 1941, the same           Governor    submitted        to the Senate
of the 47th Legislature        the following:

                 “I ask the advise,        consent and confirmation             of
            the Senate to following        appointments:

                 “TO be a member   of the Board of Medical  Exami-
            ners, term to expire April   13, 1943: Dr. W. C. Morrow
            of Greenville, Hunt County.”

                The records    of the Secretary            of State also       show   that the appointees
referred     to were confirmed     by the Senate           as fol.lows:

                          Dr. Buie,       June    18, 1941;

                          Dr.    Connally,       June   18, 1941;
                                                                           -
                           Dr.   Crabb,      June 18, 1941;

                          Dr. Sparks,        July 3, 1’94 1;

                           Dr. Morrow,        June      18, 1941.

The same official  records  show that each of the above named Doctors      were
duly issued commissions    on June 18, 1941, with the exception   of Dr. Sparks,
The records  do not sho&, whether  or not his l:ommission    has yet beenissued.

                 We now consider  when the new appol?‘ees,    whom we have                       referred
to, become       members of the Texas State Boa:?d cf Medical   Examiners.

               Under Article     16, Section 17, of OX- Texas       Constitution,    all offi-
cers within the State shall continue to perform          the duties of office until their
successors    are duly qualified.     This constitutional     provision    is applicable     to
members     of the Texas    State Board of Medical      Examiners.      An incumbent who
holds over continues     in office with all the powers      incident thereto      until a suc-
cessor   has duly qualified.     He is a de jure   and not a de facto officer.         Though
his term has expired,      he may continue    to perform     the duties of the office.
34 Tex. Jur. 373.

                  Under the laws of this State we are of the opinion that member                       of
the Texas      State Board of Medical   Examiners,   under the factsfiubmitted by
.   ‘-




         Honorable    T.   J. Crowe,   page   5 (Opinion    No.   O-3163)



         you, has duly qualified     when:      (1) He-has been duly appointed           by the
         Governor;     (2) his appointment        to the office has been duly confirmed            by
         the Texas Senate;      (3) a commission        of office has been duly issued by
         the Governor     and attested    by the Secretary        of State;    (4) the appointee
         has taken the required       constitutional     oath of office     in the county    of his
         residence   as required     by law (Art. 4496, V.A.C.S.).             We find no statute
         requiring   members      of the Board to execute         an ,official   bond. When all
         of these requisites     are shown we believe          the appointee      has duly quali-
         fied for the office   to which he was appointed           and becomes       invested   with
         all the rights and prlvileges       pertaining     to said office and is entitled        to
         exercise   the duties imposed       upon his.

                       As a corresponding    proposition,    we are of the opinion that,
         in the absence   of a statute to the contrary,   all rights and duties of the
         predecessor    in office terminate  upon the qulification   of the new officer.

                         From    a discussion     of the foregoing       principles   of law, which
         we think are applicable        to your proposition,       you are respectfully       advised
         that it is our,opinion,     that Drs. R. H. Peterson,           W. C. Morrow,      M. M.
         Brown, who have been succeeded              on the Board,      as hold overs from and
         after April    13, 1941, could legally       perform     official   duties as members
         of said Board until such time as their successors                  have duly qu,alified    in
         the manner heretofore         discussed.      Any official     acts performed      by either
         of them, within the scope of their lawful duties, under such circumstances
         would be proper       and legal.    However,      after their respective       successors
         have duly qualified      we believe     their official    status ceases     to exist and that
         their acts performed        thereafter    would have no legal status as being acts
         performed     by them as members           of the Texas State Board of Medical
         Examiners.       It is also our opinion that their successors,             upon becoming
         duly qualified,     would succeed      to all powers     and duties incumbent        upon
         them as members         of said Board.

                         The status of Dr. H. F. Connally  who was appointed to succeed
         himself,    would not be changed by such appointment      and his acts would be
         official,   as a hold over, until such time as he qualified   to succeed himself.

                      When Dr. N. D. Buie accepts   his new appointment  by qualifying
         for the six year term on the Board, he would, in our opinion,  contemporan-
         eously, by implication, resign from his former   status as a member   of the
         Board.   34 Tex. Jur. 351.

                      Dr. W. C. Morrow     seems to have been re-appointed                   not to
         succeed himself  for a six year term but for the unexpired    term                 of Dr. N.
         D. Buie, which expires   on April   13, 1943.

                      You *are, therefore,    advised   that the only authorized       members
         of the Board who have authority     to perform     any official  act, as members
         thereof, are those who, at said time, are lawfully        holding office.     If none of
         the newly appointed   members     have, at the time of the meeting        referred   to
Honorable      T. J. Crowe,     page   6 (Opinion     No.   3183)




in your inquiry,    duly qualified   in-the manner heret.ofore       discussed,
then they are not at that time authorized         to perform    any official    act
and approve     or sign any certificate.      T,he proper   persons,    under those
facts, would be the old members          of the Board who are holding over
until their successors     are duly qualified.      However,    If oxi the date of
your   meeting   any new member       has duly qualified,    which fact you can
ascertain    fromhim,   then such duly qualified      member     is the proper one
and only one to perform      an? official    act.

               We are not unmindful       of th.e practical      situation   involved  and
the problem     confronting   the Board;;    However,     the law, as we have ex-
pressed   it, is clear and the Legislature       has not made any provision           to
cover instances     where only a portion      of an official      act has been com-
pleted before    the termination     of a member’s      official     status.   The pro-
blem, under the presently       existing   law, is one to be solved by the genius
of the Texas State Board of Medical          Examiners.

                 We trust     that in this   matter    we have      fully    answered   your
inquiry.

                                                        Very     truly      yours,
APPROVED         JUL   18, 1941
                                               A+TORNEYGENERALOFTEXAS
/s/   Gerald     C. Mann

ATTORNEY         GENERAL        OF TEXAS       By     /s/   Harold McCracken
                                                            Ha:rol.d McCracken
HM:db:ps                                                             Assistant


APPROVED       OPINION  COMMITTEE
            By BWB Chairman
