             HE   ATT          NEY      GENERAL
                          OFTEXAS




                             November 4, 1969


Honorable Preston Smith               Opinion No-M-504
Governor of Texas
Austin, Texas                         Re:    Term of office for members
                                             of the Texas Board of
                                             Licensure for Nursing Home
                                            Administrators created by
                                             the provisions of Senate
                                            ,Bill 388, Acts 61st Leg.,
                                             Regular Session, Chapter
                                             411, page 1356, and related
                                             questions.
Dear Governor Smith:

     Your request for an opinion reads as follows:

          "The Sixty-First Legislature, in its Regular
    Session enacted Senate Bill No. 388 entitled the
     'Texas Board of Licensure for Nursing Home
    Administrators' and Senate Bill No. 667, entitled
    the 'State Board of Examiners of Psychologists'.

          "In the creation of these Boards, the respective
    acts provide for overlapping three-year terms of office.
    Attorney General Opinion No. M-463, dated September 4,
    1969, held that such terms of office were not authorized
    by Article 16, Section 30 or Article 16, Section 30a
    of the Texas Constitution.

          "In this regard, would you kindly render this office
     an opinion in reference to the following:




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Honorable Preston Smith, page 2 (M-504)


          "1.    May the members of both of these boards be
                 appointed under the authority of Article 16,
                 Section 30, of the Constitution, for a
                 two-year term of office?

          "2 .   Senate Bill 388 provides for a nine-
                 member Board and contains a provision for
                 two-ex-officio members. Does this act mean
                 that there are nine appointed members plus
                 two ex-officio members?

          "3 .   Or does Senate Bill 388 provide for seven
                 appointed members with the two ex-officio
                 members completing the nine-member Board?"

     In Attorney General's Opinion M-463 (1969) this office
stated that Section 4 of Senate Bill 667, Acts of the 61st
Legislature, Regular Session, 1969, Ch. 713, p. 2059 (Article
4512c, Vernon's Civil Statutes) prescribing the terms of office
for members of the Texas State Board of Examiners of PSyChOlOgiStS
for three years is in violation of Section 30 of Article XVI
of the Constitution of Texas. Attorney General's Opinion M-463
upheld the remaining provisions of Senate Bill 667.

     Subdivision 4 of Section 3 of Senate Bill 388, Acts of the
61st Legislature, Regular Session, Chapter 411, page 1356,
(Article 4442d, Vernon's Civil Statutes), provides as follows:

          "(4) Initial appointments to the board shall
     be as follows:  three (3) members for a term of
     three (3) years: three (3) members for a term of two
     (2) years, and one (1) member for a term of one (1)
     year, and thereafter the terms of all appointed members
     shall be for three years unless the appointment is for
     an unexpired term only. Vacancies on the board shall
     be filled in like manner as initial appointments are
     made."




                            -2416-
Honorable Preston Smith, page 3 (M-504)


     Section 30 of Article XVI of the Constitution of Texas pro-
vides that the duration of all offices not fixed by this Con-
stitution shall never exceed two years. Section 30a of Article XVI
of the Constitution of Texas provides:

           "The Legislature may provide by law that the
     members of the Board of Regents of the State
     University and boards of trustees or managers of
     the educational, eleemosynary, and penal institu-
     tions 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 boards
     to be elected or appointed every two (2) years in
     such manner as the Leqislature may determine;,
     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." (Emphasis added.)

     Subdivision 4 of Section 3 of Senate Bill 388 does not comply
with Section 30a of Article XVI of the Constitution of Texas and
since the terms fixed by Subdivision 4 are not authorized by any
other constitutional provision such subdivision is void insofar
as the term of office specified therein exceeds two (2) years.
Attorney General's Opinion M-463.

        Likewise, members of the Texas State Board of Examiners of
PSyChOlOgiStS    appointed pursuant to the provisions of Senate Bill
667 with the exception of the initial appointment are appointed
for a two year term as provided therein. Section 30 of
Article XVI, Constitution of Texas, prohibits terms of office
not otherwise fixed by the Constitution from exceeding two years.
It does not however prohibit the Legislature from providing terms
of office for less than two years. Therefore the initial
appointments will be for the terms specified in Section 4 of
Senate Bill 667 insofar as said terms do not exceed two years.
Two members therefore will be initially appointed for a term
of one year and the remaining four members will be appointed for
an initial term of two years.




                            -2417-
Honorable Preston Smith, page 4    (M-584)


     It also follows that members of the Texas Board of Licensure
for NUrSing Home Administrators appointed pursuant to the pro-
visions of Senate Bill 388 are appointed for a two-year term
except for the initial appointment.  The initial appointment will
be for terms of office as provided in Subsection 4 of Section 3
of Senate Bill 388 insofar as the terms of office of the initial
appointments do not exceed two years. Six members therefore will
be initially appointed for a term of two years and one member
will be appointed for a term of one year. Thereafter all members
will be appointed for terms of two years unless the appointment
is an unexpired term only.

     In response to your sycond question, Subdivision 1 of
Section 3 of Senate Bill 388, Acts of the 61st Legislature,
Regular Session, provides:

           "(1) There is hereby created the Texas Board of
     Licensure for NUrSing  Home Administrators which shall
     consist of nine (9) members. The Commissioner of
     Public Welfare for the State of Texas, or his designee,
     and the Commissioner of Health of the Texas State
     Department of Public Health, or his designee, shall be
     ex officio members of the board.   Such designees shall
     be chosen from those representatives of the respective
     departments who are actively assigned to and are en-
     gaged in work in the nursing home field. One member
     shall be a physician duly licensed by the State of
     Texas, one member shall be an educator connected with a
     university program in public health or medical or nursing
     home care administration within the State of Texas, and
     five members shall be duly licensed nursing home
     administrators (with the exception of the initial
     appointees as hereinafter provided for) of the State
     of Texas." (Emphasis added.)

     An analysis of Subdivision (1) reveals that the board shall
consist of nine members.  It provides that the Commissioner of
Public Welfare, or his designee, shall be one ex officio member:




                          -2418-
Honorable Preston Smith, page 5     W-504)


the Commissioner of Health, or his designee, shall be one ex
officio member, another member shall be a physician, another
member shall be an educator connected with a university program
in public health or a medical or nursing home administration
within the State of Texas and five other members shall be duly
licensed nursing home administrators (with the exception of
initial appointees), making up the total of the nine member
board.

     Therefore, it is our opinion that the nine member board
includes the two ex officio members.  In answer to your question
No. 3, therefore, Senate Bill 388 provides for seven appointed
members and two ex officio members completing the nine member
board.

                            SUMMARY

               Members appointed to the Texas State Board
          of Examiners of Psychologists pursuant to the
          provisions of Senate Bill 667, Acts of the 61st
          Legislature, Regular Session, 1969, Ch. 713,
          p. 2059, and members appointed to the Texas Board
          of Licensure for Nursing Home Administrators
          pursuant to the provisions of Senate Bill 388,
          Acts of the 61st Legislature, Regular Session,
          1969, Ch. 411, p. 1356, serve for a term of two
          y?ars prescribed by Section 30 of Article XVI
          of the Constitution of Texas except for the initial
          appointments.    The Texas Board of Licensure for
          NUrSing   Home Administrators consists of seven
          appointed members and two ex officio members,
          completing the nine member board.
                                          f
                                     Very truly yours,




                                             General of Texas




                           -2419-
Honorable Preston Smith,.page 6 (M-504)


Prepared by John Reeves
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Kerns Taylor, Chairman
George Kelton, Vice-Chairman
Harold Kennedy
HOughtOn Brownlee, Jr.
Sarah E. Phillips
Bill Corbusier
Jack Dillard

MEADE F. GRIFFIN
Staff Legal Assistant

NOLA WHITE
First Assistant




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