Case Information
*1 OFFICE OF THE ATTORNEY GENERAL OF TEXAS ..’ I AUSTIN GROVER SELLERS *nuRNrr GcNaui ;.. ,.~ ‘,. ._ ‘. The State-;ard or'mbalming
.., ..y* Austin - Texas .m , '. Mr. Xhas. B. Cook,
Denti~en: dttention: secretary ~~ I .: n Yourrequest r0r an opini
the above subject natter ~bs as fo
the Boar
rm; 'however, this t Goorth, Texas tin, Texas Bday 31, 1945 Nay-31, 1947 cKinney, Texas~ May 31; 1947 Bowle, Texas my 3415x8 , Dallasi. Texas May 31, 1949 , Lamsa, Texas May 31, 1949 Would it be legal for the Governor to make either a three-year or a six-yeezap~ointient, May 31, 19451" *2 ’ i
The State Board Of mbelmlng - Rage 2
The rule governing the tenure dr.en officer Is, that where a statute creates an offloe and prescribes the length or the term or the incumbent, without fixing the date;,of-the be&Ming or termination of such term, the date of the first aorointment determines the beginning of the tenure of such appointee and all successive tenures.
.(See Opinion Ho. o-5096)
The legislative genealogy or the State &ard of ' Embalming Is as r0110ws:
Senete.Blil 76; Chapter XCV, or the &neral Lawi or the 28th Legislature (1903) first established the Board:
*There is hereby established end created a Board to be knotin as-the State~Boerd of Bnbalm- ing. The said Board shall.consist or rive (5) .' MeGbere to be appointed by~the State Health-O?- ricer, end all vacancies.occurring In the Board shall be filled by the St::,te Health Orricer for the unexpired terzn. 'The term of eech.mesbercf said Board shall for two years, except those which~are first appointed, who shall serve as One ror one yeer, two'ror-*o years
roiiows: and two for three years. the State Health Of-
,ficer shall designate the number of years~ in
.ht.s appointment each member shall serve. The
members or said Board shall be.practlcal em-
balmers, ~havlng experience in said business and the care or and the disposition ot dead.hu5e.n bodies. The members of said Board shall be
altizsns of this iState.- All eligible for se-
appointment: The appointing officer shall re- move~any member or said Board for neglect of
duty, incompetency or eproper~conduct. .'~~ ~ ,?The Board shall be appointed on or be- ~, ror the 1st day or June, 1903, and all vacan- oies occurring thereafter, by the expiration
of their respe6tive terms of' office shall be
rilled annually thereafter on the aforesaid
date."
Senate Bill No. 182,'Cha ter 324, of the Regular Session of the 44th Legislature 7 1935) wended S. B. No. 76, as rou05vs: *3 . ‘i _ F L
. : ,:*The State Board or Babalming shall oonslst .: : oi’rive~ (5) members, whc shall be appointed by . ._. ‘~1. .~~ the State Board 09 Health. and who shall bc ll- oedaed embalmers, experletkd In said business, I ,..: . ..‘.F.
.Y ~. and the care and disposition of dead huxau Mdies. TheTterms or orrlce or the Wesent membera o’i the Board shall not be erfected by this Act but as -.‘the terms or otrloe of the present members c after the efieotive date or this Act, suoce3aor.3 < shall .be appointed ior the following terms: : Two
(2) for a period of two (2) years; two (Z),tOr a ._ ‘: . perkad or rour (4) years, and one (1) ror a period
of-skx (6) years, the first vacenciesto.be rllled :’ by. ap lntments for two. (2) years aad the next iOr >.~ $ four a) years and thF; next for six (6) years. The p” appointees shall serve for the term designated in .,::if: 1 their eppolntment,~ or until their suooessors shall
~’ appointed and shall have qualiried, unless soon-
er r@noved rOr oause.R Xnally, Senate Bill Ho. 276 or the 46th Legislature, .,._ ,‘.
Regular Session, provides: The’ State Board or. &nbalming shall consist ‘: ei .six’ (6) members who shall be llccnsed~ embalm- era experienced, in the buaineas and in the care and disposition oi dead human bodies. -.The~mem- hers of said IBoard holding office at the time ot . ’ 1. the effective date or this Act shall. continue ‘to : s . . hold ortlce ror the duration of the text Zor whi’oh .~ ...” 1:: a i they. were eppotited. Any vacancies existing on ,the. Board at. the time’of the ,effeo~tive date of
this Aot shall be filled by the Qvernor of Texas subject to confirmation by the ,Senate, and the.~.
Governor shall thereaftor’have the power to fill veoanoles OE the Board as they occur, and shell In ap&olnt,i.ng said members so designate their
terms that txo (2) places on the iWrd.shall be- come vacant eaoh tw (2) years. The term or or- fioe ot each member shall be skx (6) years, All apEointments shall be cenflrmed by a tw+thlrds vote of the senate of .Tesas. Any vacency in an unexpired term ~ahall be tilled by apFolntment oi the Goyernor rar the unexpired term.* 1939, at.which time there existed a vacancy on the Board (the or, Senate Bill 276 became erfectlve September~ 22 _ _ ~. -.? sixth newly created member) .and the Governor was for the first : time authorized to make an appointment. Prior to that time
'F+Y '- ~Ahere was no vacancy (sixth) to be filled. Eevertheless, it
~. appears’ from the records of the Searetary or’state that on
June 16. 1939. Governor O’Daniel atteanted to anmint Mr. Rav QOwderVof Jort ‘.iorth., ior a six-year term, expiring Crap 31,: 1945; Aocording to the records of the Secretary of State’s ‘ortloe, at the time or the errective date or Sena’te fill NO.
276, the Board consisted of A, B. Rogers, whase term would ex- ” ,plre Bay 31, 1943, George Loudermilk, whose term would Hqy 31, 1943, Z. B. Ham, whose term would expire Bay 31, 1940, Charles B, Cook, whose term would expire Bay. 31, 1940, and . . ‘,:yr i: R; L. Burgess, zhose term would expire iSa 1942. . .,. ? _ Prior to the eriective date or suoh Bill, therefore,
the Board legally con&&ted only of the above-nemed rive mem- ber -f Rogers, Loudermilk,,Eem, Cook and burgess, w+th expira- tions as a’uove shown.
By and -large it was the &ntenti&n of the~.Leglslature in Senate Bill No. 276, creating a six-member Boards, ~that *two (2) placed, on the Board shall!beuome Yaoant ‘each two’ (2) years.*
. -! The only way to give effect to that intention (and the proper way; vre think) Is to treat the attempted appointment of Mri Crowder as void land or no errectPunti1 the effective date of Senate Bill 276, at which time it should be given the effect of,a vaoancy appoinjnnent terminating with the term or Idr. Burgess,’ on, to-wit, Yay 31, 1942,~ at which time the position was open ior a full six-year term ripe ‘for appointment. Sinoe, no such appofntment at that time BBS made, it would follvw that=. Crowder has ‘since said time held over under Section -17, or Article XVI, or the Constitution providing that, *Ail orrlcers within this State shall &ontinue to perform the duties ot their offices until their suaeffssors shall be d&y qualified.” His oi$icial .acts at aU’tii&s.in this OOMeCtiOlj have been per- rectly legal, buf there exists a vacancy ror the balance of the term expiring May 31, 1942. From this it follows the Governor may make such appointment for such vacancy at ,any time:
ATTORNEY GEiJEML OF TUM AF?ROVBD RAY 16, 1945’ BY Ooie Speer
Carlos Ashley (9) :. Assistant ,:. ,:,,,. .: FIRST ASSISTANT