‘AITomNRY,aMcNIICRAI.      February 17, 1969      :,




     Honorable,’ Preston Smith.      :, ., ORlnlon ,No.” M-&g”
     Governor ‘of ,the .State of Texas ,,                    :.
     State Capitol .Building               Re.: Certain que&iohs re.lating
     Auetiii, Texas                             to the’ de.termtinatlon of the
                                                &mmence.ment of’ the term of
                                                office   of members of various
                                                boarda, wencies , c’ommls-
                                                slon.8 and commltteeg of’ the
                                                Sta$e. of Texas where pu;ch,
                                                term of offike     is not,speci-
                                                flcally.  prescribed   by
                                                atatute~ or the Cbqstitut+on
     Dear Oovbhor Smith:                        gf l&w3..                  .’
                 .‘You have requested   the opinion    ‘of th-is. ofX$e’.. upon ,.the
      ,following~ que,qtlont%:‘,
                 “1.. Where a board, ‘age.ncy~‘,c&nmisa’ion or .”
            commlttee~ of ‘the State of .Texa,a. ia created’ .bji:“.
            the.Constltut.lon   of the .Sta.td of Texas, or .by
            Act of the Texas Legislature,      the e,ame.Tao.be ‘,
            composed of members to be appotited       by the
            Governor for a definite     term,‘when doea the
            term .of office, of’ each member begin ahd end,
            when the Constitution    or Act oreatlng same,
            does not speolfloally    80 provide?
                 “2 . Where a board, agency, commisalon ore
            conunitte~e of the State of Texas la created by
            the Constitutlon,of    the: State of TBXBB,,or by,,
            Aqt ,of the Texas Iegialature,     the. same. ‘to be’
            composed of membere to be appointed’ by, the,:                   ..
            Governor for a definite     term,, with the. advice
            and consent of the Senate, when does the te’rm
            of office   of.eaoh member begin and end, when
            the Conatitutlon    or Aot creating same doee         ‘,
            not 8peolflcall.y   80 provide?

                                                                        .’

                                                                  .~'~. ',
                                 -1658'-                             .


                                                                             ."   :.
                                                                                         .’    .




Hon. Preston    Smith,     page 2        (M-338 )


             “3 . Where a board, agency, commission or
       committee of the State of Texas is created by
       the Constitution   ‘of the State’ of Texas, or by
     : Act of the Texas Legislature,     the same to be
       composed of members to be appointed by the
       Governor, with the advice and consent of the
       Senate, for a term falling     under the provisions
       of Article   16, Section 30, ‘Constitution  of the
       State of Texas, when does the term of office
       of each member begin and end, when the Con-
       stltutlon   or Act creating same does not specifi-
       cally so provide?
           “4. Where a board, agency, commission or
      committee of the State of Texas is created by
      the Constitution  of the State of Texas, or by
      Act of the Texas Legislature,   the same to be
      composed of members recommended by another
      board, agency, commission or committee of the
      State of Texas for a definite   term, but to be
      approved by the Governor of the State of Texas,
      when does the term of office   of each member
      begin and end, when the Constitution   or Act
      creating same does not specifically   so provide?”
            In connection with the foregoing   questions you have
mentioned that in certain instances your office      has beenunable,
 to determine the beginning and end of the term of many of the
,offioers  serving on various boards, agencies,   commissions and
 committees of ,the State of Texas.
           Each of the questions which you have posed pertain to
the determination   of the commencement date of the term o’f office
of various appointive   positions   on boards, agencies,   commissions
and committees of the State of Texas.        In each of the instances
the statute or constitutional     provision   creating such b~oard,
agency, commission or committee does not specifically,      set forth
when the term of office   will commence. The questions you have
posed differ   In only the following    respects:
           1.    Appointments          for a definite             term by the ,Governor;
           2.    Appointments for a definite                      term by the Governor
                 with the advice and consent                      of the Senate;,
                                      1,,,. ~_,y!‘c,~;,,;
                                                  %. ,,,
                 ,,,,I,, .’                          /ji”. ‘,f ,,,., ,‘J iii:> :,,. ,,
                    ,’ ,~~‘,i j,_ ‘,,‘,,-:lk&Z9i: T, :a’ ..,‘S,.,,,’




                                                                                         ...

                                                                                                   ,.,
                                                         ‘,




Hon. Preston      Smith,   page 3     (M- 3381,


             3.    Appointments by the Governor with the advice and
                   consent of the Senate for terms subject to the
                   provisions   of Section 30 of Article XVI of the
                   Constitution   0,f Texas;
             4.    Membership recommended by another board, agency,
                    commlsslon or committee with approval by the
                    Governor.
                                                                   ,.    "
                    In answering the foregoing   questionsit     maybe helpful
to lnltlally      refer to the statement of .the Supreme;Courtof           ~Texas
In the case of Spears v. Davis, 398,S.W,2d 921 ('I+.Sup.               1966),
which lsset       forth as follows:
                                                                 "., .; ,, ',
                    “In order to avoid confusion,   a clezir dis-~
              tlnctlon   must be made between.the phrase', 'term
              of office'   and an lndl.vldual~s tenures of,offlce;
             'The DeriOd of time desinnated     as a'term of of-            ',
              ffce may not and often does not ,colnclde with an
              individual ‘8 tenure of office    , . . . ” (Emphasis
             added, )
         me questions presented here do not necessarily              deal wlth~
 an Individual Is tenure of office       as. a. member..o.f.a .pasticu~lar.-.,board,
 agency, commission or committee, but are directed             so~lely ‘to ~the
.cixnmencement date gf the term of the office         or membership to which
 he, has ,been appointed;     The, indlv~lduaPs tenureof        office.,in    a.
 particular   office   may coincide    with the term of pffice        of the
 position   to which he, has been,appointed,       but In some instances
 It will not.      An officer  Is entitled    to hold the.office        until
 his successor     is elected  or appointed and qualifies.         Article    18
 V.C.S.
        In determining the commencement date of the term of
office   of a position   on a board, agency, commlsslon or committee
of the State of Texas oreated by either a statutory       or consti-
tutional   provision   which i&silent  as to Intent concerning when
the term of office     is to commence, a review of the authorities
disclose   that there atie at least two dates which are generally
to be considered     -- the date of the first appointnient to the
office,   and the effective   date of the statute or constltutlonal
provision   creating the office 0 See Attorney General’s Opinion
O-3584 (1941).



                                    -1660-
Hon.' Preston    Smith, ,page 4        (Ept 338)

       In the case of Royston           v. Griffin,      42 Tex. 566 (1875),
the ~court stated that:
               “It certainly   cannot be said that the language
         of the Act Is utterly     free from ambiguity or un-
         certainty.      Where this is the case, it is believed
         t,o be the.aoundeat rule of interpretation         in a
         republican    system of government, to abbreviate
         rather than prolong by construction,       official
         tenure.     In case of doubt, the preference       should,
         It Is thoug,ht, be Riven in favor of the speediest
         return of the right to fill     the office    to the ap-
         pointing power . . . .II (Emphasis added.)
         In the case of Wright v. Adams, 45 Tex. 134 (1876),               the
coul’t   stated ln'its opinion that:         :
              II. . .  It is believed,   moreover, to be a
         souhd,rule  of,constructlon,    which holds, when the
         duration or term of an office     which Is filled   by
         uouular elections    is a auestion-of   doubt or un-
         certainty,  that the interpretation     is to be fol-
         lowed which limits It to the shortest       time, and
         returns to ~the people, at the.earliest     period the
         power and authority to refill      it."   (Emphasis
         added.)
      The court         in the case of Dobkins v. Reece, 17 S.W.2d
81 (Tex.Clv.App.         1929, error ref.), stated In its opinion that:
                       When the duration or term of an
         office  is's question of doubt or uncertainty,
         the interpretation   should be followed which
         limits such office   to the shortest term.
         Wright v. Adams, 45 Tex. 134 . . . .'I
         In 67 CdJ.S.      1]44c, Officers,,it        is stated   that:
                               If the language of a statute or con-
         stltutlonal'provislon        specifying   the term of of-
         fice of an offlalal       is ambiguous, the lnterpreta-
         tlon which limits the term to the shortest time
         will be adopted."        (Citing in the footnote ARueler
                            217 Cal. 429, 19 P.2d 241; Chamski
                            Mich. 238, 284 N.W. 711; Lowrie. v.
                          Mich. 63, 276 N.W. 900; State ex rel
         Bonner, Governor v. District          Court of First Judicial
.      ,




    Hon. Preston   Smith,   page 5 '(M- 338)

           Dist. in and for Lewis and Clark Counties,          206 P.2d
           166; Dobkins v. Reece, Clv.App., l'i:S.W.@d         81,
           error ref e ) e ”

    See alsO Maddox v. York, 54 S.W. 24 (??ex.Clv.App. 1899, aff. 55
    S.W. 1133);  Mechem on  w of Public Offices and Officers,   .Section
    390, P. 255.
            The foregoing    cases clearly   reveal that It has long been
    recognized    In Texas, as well as many other jurisdictions,       that
    where there exists uncertainty        as to the term of office   of a
    particular   position,    the courts will favor tin Interpretation
    which limits the term to the shortest time and returns the elective
    or appolntive    power to be once again exercised.      Such being the
    case, It would seem to necessarily        follow that the courts would
    favor an interpretation       which commences the beginning of the term
    of office   at the earliest     possible  date because this would result .'
    in the speediest     return of the right to fl,ll the office     to the    1
    appointing power.                                                       .'
           In the case of Eades v. Drake, 160 ,Tex. 381, 332 S.W.2d
    553 (l%O),   the Supreme Court of Texas stated that:
              ~ "The 160th Judicial   District   was"creat&d.b%.
           an Act of the ,55th Legislature     and came Into e&at-
           ence on the effective    day of the Act, that Is,
           ninety days after May 23, 1957, the day upon'which               .'
           the I&gl,slature adjourned e D . ~
                                                          .~..
                IIe * 0 0

                  "Under the Texas constitution,      the office
           of diatr'ict   judge Is an electlve.posltion,        with,
           the exception that the Governor may fill           vacancies
           by aoooititment until the next nene.ral election,
           Ai a‘hsual thing when a dlstrl&          court is,,cr&at.&d'
           there la-a vacancy In the office         of judge to be,
           filled    by gubernatorial  appointment. However,
           when and after a general election         takes place,
           the term of a district     judse'ia    flxed,at-four
           years by the constitution.          (Emphasis added.)        (
            Applying the reasoning of the foregoing     case to the present
    situation,    it would appear that a board, agency, commission or
    committee created by a constitutional     provision   or statutory en-


                                     -1662-
Hon.   Preston Smith,   page 6   (M- 338)

actment of the Legislature      would come into existence        on the
effective     date of the constitutional      provision   or statutory   en-
actment.      In turn, it would likewise seem to follow that any
appointlve     positions  upon a board, agency, commission or committee
would come into existence      on the effective       date of the statutory
enactment or ConStitutional       provision,    unless otherwise provided.
While there may be vacancies exls'tlng         in positions   on the boards,
agencies,,    commissions or committees, If the appointing power does
not make the appointments on the effective            date of enactment or
~provision creating the position,        this would not of Itself      seem to
affect     the time at which the term of office        commenced. A somewhat
analogous situation      is commented upon in 67 C.J.S. 850, Officers,
where It is stated that:
            'Since the term of an office     is distinct  from
       the tenure of an officer,     'the term of office'    is
       not affected   by the holding over of an Incumbent
       beyond the expiration    of the term for which he was
       appointed;   and a holding over does ndt change the
       len th of the te?,     but merely shortens the;term
       of f is successorT
        The same reasoning would apply to the questions here pre-
sented.     The fact that an appointment wasnot made on the ,commence-
ment date of the term of office     would not change the lengfh,df'the
term, ,but'i,t would merely shorten the length of time that the in-
dlvidual,so    appointed could serve in the position..
       In Attorney General's Opinion M-296 (1968), the question
was presented as to the date on which the staggered terms of
members of the State Judicial   Qualifications:Commission  commenced
and terminated.    In passing upon this question it was stated that:
                     A term of office     is not necessarily
        measuiei i& the date of appointment thereto,         but
        rather by the date set by the act which brings           s.uch
       'office   into existence.     Even though no specific
        date is mentioned by such act, its’ terms pay be- ~’ ‘I’
         such, as is the case here, that a definite        date'
        may be readily ascertained.        Bruce v. Matlock,
         113 S.W. 990 (Ark.Sup. 1908). Boyd V. Huntington;
         ll'P.2d  383 (Callf.Sup.     19321; PeQple
        ,106 P.2d 635 (Calif.     Dist. App. 1940).".   (Emphasis.
        added. )


                              -1663-
.




    Hon. Preston   Smith, page 7 (M-338)

           While the foregoing   comment8 would likewise seem to support
    a rule of construction    that the term of office   of an individual
    serving on an agency, board, commission or committee of the State
    of Texas, created by an enactinent wholly silent     concernln&the
    commencement date of such term of office,     begins with the effec-
    tlve~ date of the enactment, the SupFme Court of Texas In Spears
               398 S.W.2d 921 (Tex.Sup. 1966), made the following
    ifx%z%:
                          The relators   oontend that.the general
           rule aa’& the commencement of terms Is that,
            IThe term of office    begins from the time, if’any,
           fixed by law, or where no time Is fixed,           on the
           day of election     or the date of appointment. 1
           67 C.J.S.   Officer-h                           e     ere
           is authority    to the oontia’8fl;. we ’are in agree-
           ment wrth this contention and If we were to
           consider the constitutional       provision    relating
           to Senator8 by Itself,      we would have no difficulty
           In saying that the usual senatqlal          term extended,
           four yerl;rs from the day of the general ‘election
            * ... s    (Emphasis added. )
        While the foregoing     statement was made by the Supreme’
    Court in its ~opinion,it should ,be noted that the court did ‘.‘~’‘:’
 not base its decision    in the case on this point and therefore
 the statetnent Is judfofal’,dlcta     rather than an actual holdfng
 of -the court 0 In addition,      SoeaPs v. Davis, supra, ,dealt w,ith
Teleotive. offices rather ‘than appolntlve     offices;
          Of even greater significance       in discussing     Sm
            18 the reference   made to 67 C.J.S. Officers,        rJ 45, wherein
    %?%stated      that z
                ,I       The general  rule Is ‘that8 where no
          time ia’fixed    by the constitution     or Statute.    the
          term begins, in-the case of elective        offices;    on
          the day of election,     and In the case of appolntl@e
          offices,   on the date of apoointment e I) . . ‘I (Emphasis
          added Q)
    Among the case8 cited In aup ort of the statement iS the .oaae’ Oz
    People v; Morris,, 41 Cal,2d i: 30, ,106 P.2d 635 (3940).



                                  -1664-     ’
                                                                            .




Hon. Preston   Smith,   page 8 (M-338)

        In the case of People v. Morris, m        the .co,urt had
before it the question of when the term-of office      donimenced
as to a member of the estate Chiropratlc   Board.   The statu'te
creating   the board provided for staggered board membership.
Such appointments were to be made bv the Governor within
sixty hays from the effective    date of the act.   The court ln
its opinion stated that:
                       Perhaps the leading case in this
         urisdl&ion      Is Boyd v. Huntington, 215 Cal..473,~
       J 1 P,2d
             'I0 383, which case has been discussed at
       length by both parties.         The court was there
      ,dealing with the two statutes relating           to the ~ :,
       board of dental examiners.         Neither of said
       statutes    contained the provision      found in the'~
      'statute here directing        the appointment of the : ,::,
       b,oard by the governor 'within sixty days' anid ~~".
       providing that 'Of the members first         appointed,
       one shall be appointed for a term of one year,
       two for two years, and two for three years.'
       The statutes      there did provide,    however, for
       staggered terms and for rotation         In office   and
       It was necessary to determine the date of the
       commencement of the term8 in order to carry out
      'the legislative       intent.   Under the situation           ..
       prese2atedy       statutes before it, the court con-         .:
       eluded that the terms commenced on the effeCtive
       date of the act, It was there said                    DThe
       law is well established        that a term*beg;ns not           '.
       necessarily     from the date of appointment, but          ".
       from the time fixed by the lawmakers for it to;
       begin. t We may imply from the language of the :
       court that the time of the commencement of a
       term under any given statute is to be determined
       by the intent of the lawmakers as found from a
       consideration      of such statute as a whole.
           "As we read the statute under consideration,
      we believe that it contains a definite   impli-      '.
      cation that the terms of the original   boards mem-
      bers should commence upon the date of the first
      appointments rather than upon the effective     date
      of the act 0 e D .'I (Emphasis added.)




                                  -1665-
Iion; Preston   Smith,   page 9   (M-338 )


       In the case of Boyd v. Huntington,,.215 Cal. 473, 11 P.2d
383 (Cal.Sup.Ct.   1932 , referred    to by the courkin   Pe;p;;t;ri
bk~Z?f;iS~SUP?.,  the court had before it the question o
mln ng the ate of commencement of the term of office        of the
member8 of the dental examiners board.       The issue was whether
the commencement date of the terms of office      was the date of
appointment or the effective    date of the act.     The court in
holding that the effective    date of the act controlled    the
,commenoement of the termof    office   of the members ,of the
board .8tated:
            "The Governor who appointed petitioner     was ~'
      limited In his appointment to the duration of the
      term fixed by law, and the naming of any period,be-
        ond such term Is to be regarded as aurplusage.
      56 C.J., p. 965. Since the term of an office         18’ ‘,
      distinct   from the tenure of an officer,     the 'term     :
      of office'    is not affected   by a holding over of an
      Incumbent beyond the expiration      of the term for
      which he was appointed,      and a holding over does
      not change the length of the,term,       but merely
      s'hortens the term of the suoces8or.       A88uming,
      therefore,    t&t the term to which petitioner      was
      appointed began and ended on August 8, his,appoin$-~.
      ment on November 9, 1927, was but for an unexpired
      .term.
            "The law is well established  that a term
       benins not necessarily   from the date of the




       suit may properly be inferred from the construe-            :
       tion of the statute        a8 a whole . . . The statutes
       here in question does fix the date of the
       commencement of the terms as August 6, 1915, the
       effective    date of the act, and the rotation       in
       office    or classification      provided for therein In
       our opinion definitely        fixes and establishes   the
       end thereof.


                              -16660
Hon. Preston   Smith,   page 10   (M- 338)

            ?Phe classification      or provision    for rotation
      in office   in the statutory      declaration     that not.
      more than the terms of two member8 shall expire
      in any one year has for it8 purpose the fixing
      of the term, and It cannot be given except by a
      holding that the beginning and expiration            dates
      of the terms are so fixed and'that all term8 run
      with the office.        A contrary holding would re-
      sult in a destruction       of any effect     of the pro-
      vision."   (Emphasis added.)
         The only case authority    by a Texas Court called to our
attention    involving  the point Is Spears v. Davis, m,         'whlch~
quoted statement by the Supreme Court of Texas is considered as.~,
judicial    dicta as distinguished    from'mere oblter c]$ci+',   15'Tex.
Jur.. '2d '588, Courts, Sec. 130; p.595, .Courts, See,., J35.L,.,.4.3
such Itcannot      be ignored.   In addition,   there is~ amplepre-
cedent by prior Attorney General's Opinions to support the
position    that the term of office     of a person serving onan
agency, board, commission or committee commences upon the date of
appointment of the initial      appointee In instances where the
commencement of the term cannot be determined from the language
of the enactment.      Attorney General's Opinions O-3584 (1941)j
o-2805 (1941),     O-4903 (1943), O-5169 1945 and Attorney General'8
Conference     Opinions 2572 (1924) 2913 t 1933 1 and Conference, Opin-
ion dated January 23, 1950.        In accord, 43 Am. JUP. 15, Public
OffQers;     Sec. 155, and cases there cited.
        A8 can be seen from the cases cited by the texts in.Corpus
Juris Secundum'and American Jurisprudence,      the authorities   are
somewhat in conflict     a8 to whether the term of office    of an in-
dividual serving by appointment on a State agency, board,;oom-
missionor      committee commences on a date determined bye the,
effective     date of the enactment creating  the position   or on the
date of the initial     appointment to the posftion,   or the date of
qualification     by the appointee,
        Except for the Supreme Court's statement in Spears v. Davis
and the long line of Attorney General Opinions above cited,        we
would not hesitate    to adopt a better rule of construction    which
~would favor permitting    the effective   date of the enactment to
 determine the commencement of the term of office      in the absence
 of any provision  settingforth      the commencement date of the term
 of office.   In addition,   by using the effective   date of enact-
ment, as the determining factor in setting the commence~ment-date:

                              -1667-
Hon. Preston    Smith, page 11    (,l& 338)

of terms of office   where the statutory  OP constltutlonaI.    pro-
VISIOniS silent    thereon, determination  of such commencament
date can be more accurately    and easily made. Certainly be-
cause of this conflict    of authorities, clariflcatlon    by the
Legislature  would be extremely helpful,   and, in fact,     it is a
virtual necessity   If absolute legal certainty     Is to be assured.
         In the absence of legislation,      however, and In an effort
to Peconclle    the aforementioned    conflicts,   we are of the
opinion that the following      rules will eliminate most of the
conflicts:
       (1)   Insituatlonswhere      the enactment creating
             boards, agencies,     commissions and committees
             provides for a multi-member board with
             staggered terms of office,      It appears that
             the legislature,     In the absence of anything  '~
             to the contrary,     Intended that the commence-
             ment date of the temn of offlee      of such
             appointlve   positions    will be the effective
             date of the enactment creating such posl-
             tlon.    This was so held in Attorney General's
             Opinion No. M-29$ (1968) and that Opinion is
             reafflrmed   In this connection.
       (2)   In Instances where the enactment creates a.
             single position     and does not provide for a
             definite  beginning    date for the commence-
             ment of the term of office,     the term beglns
             on the date of appointment of the initial
             appointee to such position,     and thereafter
             such date will govern the commencement date
             of subsequent terms of office     fn such
             position.
        It should be noted at this point that there may be ln-
stances where the legislative       enactment or constitutional pro-
vision creating offices      on a board, agency, commlsslon or
committee of the State of Texas has been amended since its
initial   enactment.    We are of the opinion that an amendment to
the statutory    OF constitutional    provlslon creating an agency,
board, commission or committee does not change the commence-
ment date of,the     terms of office   of the members on such agency,
board, commlsslon or committee unless such amendment clearly


                               -1668-
.Hon. Preston       Smith,     page 12’ (M-338    )

has as its     purpose        such a change.  See State ex rel -McCall v.
         16 S.W.2d 809 (Corn.          Sup. 1929); Manry v. McCall,
m       .2d 348 (Tex.Clv.App.          1929).
       Prior       opinions    are overruled     In sofar   as they are In conflict
herewith.


                                     SUMMARY
         The commencement date of the term of office           of an lndivi-
 dual serving on a board, agency, commission or committee of the
 State of Texas, created by a statutory          or constitutional      pro-.
 vision   which Is silent as to the commencement date of such term
 of office,   Is fixed by the effective       date of the legislative         en-
 actment OF constitutional     provision     creating such office        In those
 Instances where the board, agency , commission or committee Is a
,multi-member body and the statutory         or constitutional       provision
 provides for staggered terms of office,          Indicating    an implica-
 tion that the terms of office      should commence on the’effectlve
 date of the statutory     or constitutional      provision.      In those
 Instances where the statutory      or constitutional        provision    does
 not provide for a staggered term of a multi-membership body,
 the commencement date of the term of office           Is fixed by the date.
 of appointment of the Initial      appointee.
         Amendments to the.statutory or constitutional    prov-ksions ”
 creating a board, agency, commission or committee do, not chahge
:the commencement date of the terms of office      of the members of
 such board, agency, commission or committee unless such amendment
 clearly   has as its purpose such a change.
                                                  Y   s very truly,
                                                 BP

               I




.Prepared by George M. Kelton
 Assistant Attorney General




                                     -1669-
Hon. Preston   Smith,   page‘13   (M-338)

APPROVED:
OPINIONCOMMITTEE
Kerns Taylor, Chairman
Roger Tyler
John ,Qrace
Monroe Clayton
Fielding Early
IiAW!RORNEPHILLIPS
Staff Legal Assistant




                                   -16'10-
