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                            March 9, 1953

       Hon. Henry B. Hardt, President
       Board of Examiners in the Basic Sciences
       407 Perry-Brooks Building
       Austin, Texas             Opinion NO. s-16
                                  Re: Eligibility of a board
                                      member to continue serv-
                                      ing after terminating the
                                      employment with an insti-
                                      tution of higher learning
                                      which was required to
                                      qualify for appointment
       Dear Sir:                      to this office.
                   Your request for an opinion reads in part as
       follows:
                 "This is a request for information con-
            cerning eligibility of a member of The Texas
            State Board of Examiners in The Basic Sci-
            ences.


                 "One of the members of the original
            Board appointed by Governor Shivers in 19%
            was Dr. Ophelia C. Wesley of Daniel Baker
            College. Her first appointment was for a
            two year term. At the expiration of the
            two year term she was re-appointed by
            Governor Shivers for a six year term. A
            few weeks ago she severed connections with
            Daniel Baker College, and is at present
            not connected with~a college or university.
            My question now is, is she still eligible
            to be a member of the Board? Her services
            are quite satisfactory and we will be glad
            to have her continue to be a member of the
            Board, if it is permissible under the law."
                 Qualifications of the Board of Examiners in
       the Basic Sciencesare prescribed in Section 3 of Article
                                                           1 .




Hon. Henry B. Hardt, page 2 (s-16)


459Oc, Vernon's Civil Statutes, which provides in part
as follows:
          I, . e . The members of the Board shall
     be selected because of their knowledge of
     the basic sciences named in this Act, and
     each member shall be a professor,-or an
     assistant or associate professor or an
     instructor on the faculty of the University
     of Texas, the Agricultural and Mechanical
     College of Texas, the Texas Technological
     College, Baylor University, Southern Met&
     odist University, Texas Christian University,
     St. Edwards University, Rice Institute,
     Southwestern University, or any other insti-
     tution or college located within the State
     of Texas of equal academic standing and
     facilities for instruction. Each member
     shall have resided in the State of Texas
     not less than one (1) year next preceding
     his appointment. No member of the Board
     shall be actively engaged in the practice
     of the healing art or any branch thereof,
     nor possess or have in the past possessed a
     license to practice the healing art or any
     branch thereof, nor be employed by any
     medical branch of any school or college."
          Under the provisions above quoted, each mem-
ber is specifically required to be a professor, assist-
ant, associate professor or an instructor on the faculty
of a college within the State of Texas. The sole ques-
tion for our determination is whether this eligibility
requirement applies only to the time of appointment or
if it is of a continuing nature. Although we have been
unable to find any Texas case on this question, it is
stated in 8% A;L.R. 82%, that "Eligibility to public
office is of a continuing nature, and must subsist
at the commencement of the term, and during the occu;
panty of the office." State ex rel. Coe v. Harrison,
217 Ala. 80 114 So. 905 (1927); Jeffries v. Rowe, 63
Ind. 592 (197%); State ex rel. Johnston v. Donworth,
127 MO. App. 377, 105 S.W. 1055 (lgO'();Corn.v. Yeakel,
13 Pa. Co. Ct. 615 (18%); State e; rel. Fugina v.
;i;;w~) ;;: W;;.p;a 2;C@31ij1;49Eq3
                                 ( 926); Brown v.*Woods,
                                  Contra: Plunkett v.
Miller, 162'Miss. 149, '137So. j37 (1931).
Hon. Henry B. Hardt, page 3 (s-16)


          It is seen by the above quoted authorities '~'
that it is the general rule in other jurisdictions that
an officer vacates his office whenever he becomes in-
eligible to hold the office, for eligibility require-
ments are of a continuing nature. This rule is in ac-
cordance with the general policy in this State in regard
to the residence requirement set out in Section 14 of
Article XVI of the Constitution of Texas which states:
          "All civil officers shall reside wlth-
     in the State; and all district or county
     officers within their districts or counties,
     and shall keep their offices at such places
     as may be required by law; and failure to
     comply with this condition shall Vacate the
     office so held*" (Emphasis added.)
          Since Dr. Ophelia C. Wesley is no longer con-
nected with a college or university, it is our opinion
that she is not now eligible to be a member of the
Board of Examiners in the Basic Sciences.
                        SUMMARY
          Each member of the Board of Examiners
     in the Basic Sciences is required by Sec-
     tion 3 of Article 459Oc, Vernonss Civil
     Statutes, to be a professor, assistant, as-
     sociate professor, or an instructor in the
     faculty of a college located within the
     State of Texas at all timeb during his or
     her term of office.
                                     Yours very truly,
APPROVED:                            JOHN BEN SHEPPERD
                                     Attorney General
J. C. Davis, Jr.
County Affairs Division
C. K. Richards
Reviewer                             "&Reti
                                              Assistant
Robert S. Trotti
First Assistant
John Ben Shepperd
Attorney General
JR:am
