Honorable Charles R. Barden        Opinion No. M-462
Executive Secretary
Texas Air Control Board            Re:   Status of ex-officio
1100 West 49th Street                    members of Tex~as Air
Austin, Texas 78756                      Control    Board under
                                         Sec. 2.02 of Chapter
                                         273, S.B. 48, page 817
                                         Acts of the 61st Leg.;
                                                 effective  Se tem-
                                         bR;f’i, 1969; Art. e 477-5,
Dear Mr. Barden:                         V.C.S.
        Your request for an opinion as to whether ex-
officio  members of the Texas Air Control Board can sit
and vote as members of the Board after September 1,
1969, has been received.
            It is our opinion that the offices       of the three
 ex-officio     members of the Texas Air Control Board who
 have previously      served under the Clean Air Act of Texas,
 1967 (Chapter 727, S.B. 237, page 1941, Acts of ‘the 60th Leg.
 Regular Session,      1967)   were abolished   by the amendatory
 revision     which became effective     September 1, 1969.     This
 new law abolishes      the old Texas Air Control Board and
 creates an entirely       new Board , six members of which are
 appointed by name with a designation          by the Texas
 Legislature     of the new term for each such member. One
 of these members, whose term Is described           in the new
,revlsionary     act, reslgned,(D.    0. Tomlin) and his office
 is now vacant.       The offices   previously   held by the
 three ax-officio      board members are now to be filled       by
 the Governor pursuant to provlslons.of          the amendatory act.
       These @x-officio members were described   In Section
3 of the 1967 law which is now~repealed as follows:
        “(D)   In addition to the six members
               appointed by the Qovernor as




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Hon. Charles    R. Barden, page 2,    (M-462)



               provided herein, the board shall
               also consist of the following
               state officers    each of whom
               shall be an ex-officio     member of
               said board during the time that
               he is serving in such other
               official   capacity,   to wit:  the
               State Commissioner of Health,
               the Executive Director of the
               Texas Industrial     Commission, and
               the Executive Director of the
               Texas Animal Health Commission,
               each of whom shall perform the
               duties required of a member of
               the board by this Act, as addition-
               al duties of his other office.”
        The pertinent parts of Section 1 of Article   4477-5,
Vernon’s Civil Statutes,   (Chapter 273 (S.B. 48), page 817,
Acts of the 61st Legislature,   Regular Session) effective
September 1, 1969, relating   to the new Texas Air Control
Board, read as follows:                                  3

               “Sec. 2.02.  The board 1s com-
                posed of nine members, chosen
                as follows:


               “Sec. 2.    The six members of the
                Texas Air Control Board appoint-
                ed or continued in office     under
                the provisions     of Section 3(A)
                of Chapter 727, Acts of the 60th
                Legislature,    Regular Session,   1967
                (Article   4477-5,   Vernon’s Texas
                Civil Statutes),     and who are In
                office   when this Act goes into
                effect,   shall continue in office
                as six of the nine members of the
                Texas Air Control Board, as
                follows:     Herbert C. McKee and
                Wendell H. Hamrlck, the presently
                serving   members appointed to a




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.




    Hon. Charles   R. Darden, page 3,    (M-462)



                   six-year   term in July, 1968,
                   shall serve for a period ending
                   September 1, 1973; Clinton H.
                   Howard and Henry J. LeBlanc, Sr.,
                   the presently     serving members
                   appointed to a six-year       term in
                   February, 1966, shall serve for
                   a period ending September 1,
                   1971; Herbert W. Whltney, the
                   presently serving member, ap-
                   pointed to a four-year       term In
                   February, 1966, shall serve
                   until September 1, 1969; and the
                   person appointed to fill        the
                   vacancy in the position       previous-
                   ly held by D. 0. Tomlin, who was
                   appointed in January, 1968, to
                   serve the balance of a four-year
                   term which began in August, 1965,
                   shall serve until September 1,
                   1969.    A person appointed as a
                   member following      the expiration
                   of the term of office      of a
                   member named In the procedlng
                   sentence shall serve during a
                   six-year   term as provided In
                   Section 2.03 of this Act*, The other
                   governor shall also appoint th
                   three members of the board, ase            I.


                    rovided in Section 2.02 of this
                    c e The terms of these three
                   members shall begin on September
                   1, lgbo, and one shall be ae-
                    ointed for a two-year term, one
                    or a four-year     term, and one for
                   a six-year    term.    A person appoint-
                   ed as a member following       the ex-
                   piration   of the term of office      of
                   each of these three members shall
                   serve during a six-year       term as
                   provided In Section 2.03 of this
                   Act."    (emphasis added).




                           -2290-
Hon. Charles   R. Barden, page 4,    (M-462)



        The three @x-officio    members of the Texas Air
Control Board (created by the 1967 law) were officers
of the State’because    they had tenure, duration and
duties which involved exercise      of some portion of the
sovereign power of the State of Texas in regard to
prevention-and   abatement of air pollution.     -Dunbar v.
Brazoria Count&$Ez     ;:W.‘2d 738 (Tex.Civ.App.,
error refuse-~,.  ~~~       Johnson, 141 S.W.2d 698 (Tex.
Civ.App.,   1940, error rei “us      47 Tex.Jur.2d 12,
Public Officers,   Sec. 2.
          There is nothing in the 1969 language of the
Texas Clean Air Act which saves or preserves the ex-
officio    offices  of the Texas Air Control Board.      These
offices    are abolished and those new offices     created by
Sec. 2.02, which the Legislature      did not appoint by
name, must be filled     by the Qovernor of Texas.      The
former members, sitting      in the capacity of ex-officio
members, are not now eligible      to sit or to vote; for
since the earliest     times in Texas, when the office
ceases to exist,     the right necessarily   ceases with it.
Anson Jones v. Shaw & Swisher, 15 Texas 577 (1855).
This rule is well stated in 47 Tex.Jur.ed,        80, Public
Officers,     Sec. 55, which reads as follows:
       “Where an office    is abolished all the
        rights appertaining    to it necessarily
        cease.     The incumbent is ousted though
        the term for which he was elected or
        appointed has not expired.         He ceases
        to be an officer    and can have no
        successor;    and the constitutional      pro-
        vision requiring officers       to continue
        to perform the duties of their offices
        until their successors       shall qualify
        does not apply to him where the duties
        of the abolished office       are devolved
        on some other office     ..,.   the only duty
        then remaining for him to perform is to
        turn over all official       books, papers and
        property in his possession...”
        The offices of ex-officio members have been
abolished under the amended statute, which operates to
take the place of the prior section providing for ex-
officio  members. 53 Tex.Jr.2d 136, Statutes,  Sec. 90;



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Hon. Charles   R. Darden, page 5,        (M-462)


82 C.J.S. 411,      Statutes,   Sec.   243; Attorney   General   Opn.
c-454 (1965).
         It is not intended by this opinion to preclude
the posalbility    of appointment by the Qovernor of the
individuals    who previously   occupied the offices   as ex-
officio   members, providing,     of course, that they are
eligible    and qualified   to hold one of the new offices
created by the statute,      subject to the provisions   of             ,.
Article   6252~ga, Vernon's Civil Statutes.
                            SUMMARY
               The office   of ex-officio  member
               of the old Texas Air Control
               Board has been abolished by the
               Texas Clean Air Act, which became
               effective   September 1, 1969.  Ex-
               officio   members whose offices are
               now abolished cannot sit or vote
               as such holdover board members.




 Prepared by Roger Tyler
 Assistant Attorney General
 APPROVED:
 OPINIONCOMMITTEE
 Kerns Taylor, Chairman
 George Kelton, Co-Chairman
 Houghton Drownlee, Jr.
 John Grace
 Scott Garrison
 Sarah E. Phillips
 MRADEF. GRIFFIN
 Staff Legal Assistant
 RAWTHORRE PHILLIPS
 Executive Assistant
 NOLAWRITS
~:First Assistant
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