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                   THE      ATJXBRNEY             GENERAL
                                   OF   TEXAS




        Honorable Preston Smith                 Opinion No. M-371
        Governor, State of Texas
        State Capitol Building
        Austin, Texas 78713.                    Re: Term of office of the
                                                    members of the Board of
                                                    Regents of The University
        Dear Governor Smith:                        of Texas.

                  Your request for an opinion from this office      poses
        the following questions:

                  "1* The calendar date on which terms of office
             of members of the Board of Regents of The University
             of Texas commence and terminate.

                  "2D Did my predecessor in office have the power
             and authority to appoint Frank C. Erwin, Jr., Dan
             Williams, and Jenkins Garrett as members of the Board
             of!~Regentsof The University of Texas for six-year
             te<xmsto expire on January 10, 19751

                  "3 D If my predecessor in office did not have the
             power and authority to make such appointments, are
             same null and void?

                  “4 * If same are null and void, is Senate consent
             necessary to withdraw same, or may the Governor of
             Texas nominate and appoint,three members to the Board
             of Regents of The University of Texas?"

                  In 1858 the 7th Legislature of the State of Texas
        placed the control, management and supervision of The University
        of Texas in a board composed of the Governor of Texas, the
        Chief Justice ,of the Supreme Court of Texas, and eight others
        to be appointed by the Governor with the ccmsent of the +enate
        to hold office for four years and until,their succeeaors'were
        qualified.

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Ron. Preston Smith, page 2   (M-371)

          The first Board of Regents for The University of
Texas was created in 1881 by the enactment of Chapter 75, Acts
of the 17th Legislature, Regular Session, 1881, page 79. Sections
1, 5 and 6 provide as follows:

         "Section 1, Be it enacted by the Legislature
    of the State of Texas, that there be established
    in this State, at such locality as may be determined
    by a vote of the people, an institution of learning,
    which shall be called and known as The University of
    Texas D The medical department of the university shall
    be located, if so determined by a vote of the people,
    at a different point from the university proper, and
    as a branch thereof: and the question of the location
    of said department shall be submitted to the people
    and voted on separately from the propositions for the
    location of the main university. The nominations and
    elections for the location of the medical department
    shall be subject to the other provisions of this act,
    with respect to the time and manner of determining
    the location of the university.



         "Set, 5. The government of the university shall
    be vested in a board of regents, to consist of eight
    members selected from different portions of the state,
    who shall be nominated by the governor, and appointed
    by and with the advice and consent of the Senate,

         "Sec. 6,  The board of regents shall be divided
    into classes, numbered one, two. three and four, as
    determined by the board at their first meeting: shall
    hold their office two, four, six and eight years
    respectively, from the time of their appointment. From
    and after the first of January, 1883, two members shall
    be appointed at each session of the Legislature to
    supply the vacancies made by the provisions of this
    section, and in the manner provided for in the preceding
    section, who shall hold their offices for eight years
    respectively."



                             -1830-
Hon. Preston Smith, page 3 (M-37i)


          In 1900 the Supreme Court of Texas in Kimbrouoh v.
Barnett, 93 Tex. 309, 55 S.W. 120, held that terms of office for
more than two years violated the provision8 of Section 30 of
Article XVI of the Constitution of Texas.

          From the facts furnished this office by you, after the
decision in Kimbroush v. Barnett, m,      the entire membership
of the Board of Regents was appointed every two years.

          In 1912, Section 30a of Article XVI of the Constitution
of Texas was adopted and it provides as follows:

         "The Legislature may provide by law that the
    members of the Boardsof Regents of the State University
    and boards of trustees or managers of the educational,
    eleemosynary, and penal institutions of the State, and
    such boards as have been, or may hereafter be established
    by law, may hold their respective offices for the term
    of six (6) years, one-third of the members of such board@
    to bs elected or aooointed everv two (2) vears in such
    manner as the Legislature mav determinq: vacancies in such
    offices to be filled as may be provided by law,~and the
    Legislature shall enact suitable laws to give effect,to
    this section," (Rmphasis added.)

          Pursuant to Section 30a the Legialature in 1913 enacted
Senate Bill 203, Acts of the 33rd Legislature, Regular Session,
Chapter 103, page 191, which provides, in part, as follows:

         "Sec. 2.  The members of the governing board of
    eac,hof the State institutions of higher education
    mentioned in Section 1 shall be selected from different
    portions of the State, and shall be nominated by the,
    Governor and appointed by and with the advice and consent
    of the Senate, In event of a vacancv on said board. the
    Governor shall fill said vacancv until the convening of
    the Leqislature and the ratification bv the Senate. The
    members of each of said boards who shall be in office at
    the time this Act takes effect shall continue to exercise
    their duties until the expiration of their respective terms,
    gs shall be determined accordinq to requirements of Section
    3 of this Act, and additional members shall be appointed
    Jn the manner prescribed herein to fill out the membership
                           -1831-
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Ron. Preston Smith, Page 4   (M-371)

     herein prwided   for.

          "Sec. 3. The following members of the several
     governing boards shall be divided into equal classes,,
     numbered one, two and three, as determined by each
     board at its first meeting after this Act shall become
     a law, these classes shall hold their offices two,
     four and six years respectively, from the time of
     their appointment, And one-third of the membersh&
     of each board shall hereafter be aovointed at each
     resular session of the Leaislature to supply the
     vacancies made by the provisions of this Act and
     in the manner provided for in Section 2, who shall
     hold their offices for six years, respectively. The
     duties of the several governing boards shall be
     determined by law heretofore enacted or that may
     hereafter be enacted, no changes in the said duties
     being made by this Act." (Bm@haais added,)

          Senate Bill 203, Acts of the 33rd Legislature, Regular
Session, 1913, was codified in the 1925 revision as Articles
2584 and 2907,                                                             /.

          Article 2584 reads as follows:

          "The government of the University of Texas &all
     be v@ated in a Board of Regents composed of nine per-
     sons. They shall elect a chairman from their number
     who shall serve at the pleasure of the board, The
     State Treasurer &all be the treasurer of the University.
     The board shall have the right to make and use a common
     seal and may alter the same at pleasure,"

          Article   2907 reads as follows:

            "Each member of the governing board of the
     aivereity of Texas, the Agricultural and Mechanical
     College, of the normal colleges, and of the College
     of Industrial Arts, shall be a qualified voter, and
     shall be selected from different portions of the
     State,    One-third of the membership of each such board
     shall be biennially nominated by the Gwernar and
     appointed by and with the advice and consent of the Senate,

                             -1832s
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         Pr;ston smith, page 5 (M-371)
    Horn..


         and shall hold their office% for six years,
         respectively."

              Section 2 of the Final Title to the 1925 revision
    contain% a repealing clause reading as follars:

              "Sec. 2. Repealing Clause. - That all
         civil statutes of a general nature, in force when
         the Revised Statutes take effect, and which are
         not included herein, or which are not hereby expressly
         continued in force, ar.ehereby repealed."

              In construing the effect of revisions, the Court ,in
    American Indenmitv Co.. v. Citv of Austin, 112 Tax. 239, 246.
    S.W. 1019 (1923) held:

              "Section 43 having given the Legislature authority
         to revise the laws, without, within itself or by any
         other section of the Constitution, having prescribed
         the method of revision or without having limited the
         legiolative power, except in so far a% thi% power is
         linritedin the enactment of any other law, the
         Legislature has plenary authority to revi%e, and
         may do so in its own way and to any extent, pro-
         vided, always, the substance of the propo%ed revieion
         i% not otherwise prohibited by the Con%titution. It
         may do so by omitting laws from the,Code, which, when
         done, under the regaling clause, are repealed. ,'~It
         may do so by changing words or phrase8 for ,the purpoee'
         of harmony or brevity, without in fact changing the
         meping, or it may do so by the incorporation of new
         and material matter in the revision. The term 'revise'
         ia broad enough to permit the amendment of existing
         law% or statutes in these several w~y%~"
           !'
              Since the 1925 revision (with regard to terms of office
    for merabersof the Board of Regents) merely states that one-
    third-f the membership shall be biennially appointed by the
    Govern& and appointed by and with the advice and consent of
    the Senate and shall hold their offices for six years respectively,
    it is necessary that thie office first determine whether the
    1925 revision changed the terms of office of the membership
    of the Board of Regents of the University of Texas.. We think

                               -1833-
Hon. Preston Smith, page 6    (M-371)



not. The Board of Regents was not abolished, reorganized,
or in any other manner changed by the 1925 revision.

          It is our opinion that the term of office of the
Board of Regents is to be determined from the proper construction
of the 1913 Act rather than the 1881 Act for the following
reason%:

         The 1881 Act prescribed terms of office
    which violated Section 30 of Article XVI of the
    Constitution of Texas, Kimbrouqh v, Barnett, supra.

             The 1913 Act reorganized the Board so as to
     comply with the provisions of Section 30a of
     Article    XVI of the Constitution of Texas adopted
     the previous year,

          Section 2 of the 1913 Act provided that members
     of the Board wbo shall be in office at the time this
     Act take% effect shall continue to exercise their
     duties until the expiration 'of their re%pective terms
     as shall be determined "according to the requirements
     of Section-3 of this Act." Se&ion 3 divides the Board
     into equal classesand provides that one-third of the
     membership of each Board shall hereafter be appointed
     at each regular session of the Legiarlature,
                                                            1
          For all of tbe foregoing reasons, it i% our opinion
that the 1913 Act is the Act of the Legislature which determines
the terms of office of members of the Board of Regents of the
University of Texas.

             The proper construction of this Act (Senate Bill 203,
Acts of the 33rd Legislature, regular session, 1913. Chapter
103, page 191) is not free of doubt. Several different dates h%ve
been urged in various briefs submitted to this office, each
presenting a reasonable construction of its provisions. In the
past this office has not construed such provisions uniformly.
See Attorney    General's Opinion No, 2583 (1925) and Attorney
General'% Opinion No. 2908 (19331,



                             - 1834     -
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Non. Preston Smith, page 7 (M-371)


          A review of the various appointments and confirmations
of members of the Board of Regents of the University of Texas,
in our opinion, fail to reveal a consistent construction of
this Act by the various Governors of the State. With the
foregoing in mind, we will attempt to give a construction to
the 1913 Act as will carry out the evident purpose of the
Legislature.

       *Y In Attorney General's Opinion H-296 (1968) it is
     stated:
          II
           . . .where a controversy arises as to the
     duration of a term of office, the earliest dates for
     cmncement    and termination of the term should be
     adopted, in order to return the selective power to
     thoee exercising same at the earliest opportunity.
     Wrisht v. Adamg 45 Tex. 134 (1876); accord, Dobkin%
     v. Reecg, 17 S.i.2d 81 (Tex.Civ.App. 1929, error ref.)”

          While no specific calendar data is specified.by~the
Legislature, it expressly provided that the members of the
Board of Regents shall hereafter be appointed at each regular
session of the Legislature and that one-third of the membership
is to~be appointed every two years in compliance with.the   ,.
provisions of Section 30a of Article XVI of the Constitution of
Texas. See Attorney General's Opinion M-360 (1969). ,,.

           Since the appointments must be made *at each regular
session of the Legislature" the phrase "from the time of appoint-
ment" cannot be construed to allow the Governor to change the
terms of office by delaying appointment% and disregard the pro-
visions of Article XVI, Section 30a of the Con%titution of Texas.
Attorney General's Opinions H-338 (1969) and U-360 (1969) and
authorities cited therein.
       -,.
           We reject the contention that the phrare “from the
time of-their appointment" in Section 3 of the 1913 Act merely
refers to a past event, for the reason that the members of the
Board of Regent% in office at its firet meeting after the effective
date of the 1913 Act were not appointed on the %%me date.




       si
                             - 1835   -
Eon. Preston Smith, page 8       (M-371)



          We reject the theory that the terms of office
begin "from January 1, 1883" for the reason that such theory
is based upon a construction of the 1881 Act, which Act is
not controlling for reasons previously stated.

          We reject the theory that the termination date of the
terms of office is January 10 for the reason that such theory
is based on language contained in various executive appointments
rather than on a construction of legislative enactments.

          We reject the "effective date of the Act" theory for
the reason that such theory does not give effect to the expressed
legislative intention that appointments are to be made during
each regular session of the Legislature.

          We have concluded that the proper construction requires
that the terms of office must begin "at each regular session
of the Legislature", In view of the fact that the term of office
must begin "at each regular session of the Legislature," the
earliest date for commencement and termination of the terms is
the first day of each regular session of the Legislature.
Attorney,General"s Opinion M-296 (1968);Wrisht V, Adams, 45 Tex,
134 (1876): Dobkins v. Reece, 17 S,W,Zd 81 (Tex.Civ,App. 1929,
error ,ref.)s

          You are accordingly advised that the date on which
terms of office of the Board of Regents of the University of Texas
commences and terminates is the date of the convening of a
regular session of the Legislature, to wit: The second Tuesday
in January, as provided in Article 5422, Vernon's Civil Statutes,
which was enacted pursuant to Section 5, Article III, Constitution
of Texas.

          Since Section 4 of Article IV of the Constitution of
Texas pr&ides that the Governor shall be installed on the first
Tuesday after the organization of the Legislature, Governor
John Connally had the power and authority to appoint Frank C,
Erwin, Jr., Dan Williams and Jenkins Garrett members of the
Board of Regents of the University of Texas for six year terms to
expire on the convening of the regular session of the Legislature
in 1975.


                             -   1836      -
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        Ron. Preston Smith, page 9     (N-371)



                  In view of our answer to your first two questions,
        it is unnecessary to answer questions three and four.

                                SUMMARY

                  The six year terms of office for members of the
             Board of Regents of the University of Texas begin and,
             end with the convening of a regular session of the
             Legislature, one-third thereof to be appointed each
             two years.

                                            Youpg very truly,




                                            Attor ky General of Texas
                                                 t
        Prepared by John Reeves
        Assistant Attorney General

        APPROVED:
        OPINION CCMMITTEE

        Ferns Taylor, Chairman
        George Relton, Vice-Chairman
        Roger Tyler
        Houghton Brownlee
        Bill Corbusier
        John Grace

        W. V. Geljpsrt
        Staff Legal Assistant
               '4




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