Untitled Texas Attorney General Opinion

OFFICEoftheATTORNEY GENERAL
GREG ABBOTT

February 11,2003

The Honorable Jane Nelson Opinion No. GA-002 1
Chair, Sunset Advisory Commission
P. 0. Box 13066 Re: Implementation of 1999 amendments to
Austin, Texas 7871 l-3066 article XVI, section 30a, of the Texas
Constitution, which governs the membership
The Honorable Warren D. Chisum and terms of office of members of certain state
Vice Chair, Sunset Advisory Commission boards (RQ-0587-JC)
P. 0. Box 13066
Austin, Texas 7871 l-3066

Dear Senator Nelson and Representative Chisum:

In 1999, the Texas Legislature proposed and the voters of Texas ratified certain amendments
to article XVI, section 30a, of the Texas Constitution, which acts as an exception to the two-year
limit on terms of office for members of state boards or commissions that is imposed by section 30
of article XVI. You ask a series of questions regarding the proper construction and scope of the
amended section 30a.’ We will answer each of your questions in turn.

Background

Section 30 of article XVI of the Texas Constitution, an original part of the 1876 Texas
Constitution, provides that the term of office of all offices not otherwise fixed by the constitution
is two years. See TEX. CONST. art. XVI, 5 30. In 1894, the section was amended to permit the
legislature to set the terms of office for members of the Texas Railroad Commission at six years,
with the terms of office staggered. See id. In 1912, article XVI was amended by the addition of
section 3Oa, which originally permitted the legislature to set the terms of office at six years if one-
third of the members were appointed or elected every two years.2 This provision in effect required

‘See Letter from Honorable Jane Nelson, Chair, and Honorable Warren D. Chisum, Vice Chair, Sunset Advisory
Commission, to Honorable John Cornyn, Texas Attorney General (Aug. 1, 2002) (on file with Opinion Committee)
[hereinafter Request Letter].

‘Section 30a serves as an exception to section 30. Section 30 governs all “offices” whose terms are not
otherwise set in the constitution and, therefore, references made in section 30a to “members” of boards and commissions
refer to what essentially is a subset of “offices,” specifically members of state boards or commissions.

An Equal Employment Opportunity Employer . Printed on Recycled Paper
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the number ofboard or commission members to be divisible by three-the “divisible-by-three ruleY3
The purpose of section 3Oa, at least prior to its amendment in 1999, was to permit the legislature to
fix terms of office greater than the two-year limit imposed by section 30 of article XVI; thus, after
its enactment, the legislature was empowered to create boards or commissions whose members
served either six-year terms of office or terms of office of up to two years. As the Texas Supreme
Court said in Cowell v. Ayers, 220 S.W. 764 (Tex. 1920):

[W]e cannot ascribe to Section 30a any other meaning than as placing
it within the power of the Legislature to fix terms, at its discretion, for
the offices specified, of either six years or of any time not to exceed
two years.

The true and entire effect of section 30a is to enlarge the
legislative power over the tenure of certain offices. It was adopted to
enable the Legislature to exercise wider discretion over the terms with
which it deals.

Cowell, 220 S.W. at 766.

In 1999, section 30a was amended to permit the legislature to create boards or commissions
whose members serve terms of office of six years, with the boards composed of odd numbers of
three or more members with one-third, or as near one-third as possible, of the members to be elected
or appointed every two years, thereby effectively repealing the so-called divisible-by-three rule. A
second sentence was added to permit the legislature to provide by law that certain
boards may be composed of a number divisible by three. Section 30a of article XVI of the Texas
Constitution currently provides:

The Legislature may provide by law that the Board of Regents
of the State University and boards of trustees or managers of the
educational, eleemosynary, and penal institutions of the State, and
such boards as have been, or may hereafter be established by law,
may be composed of an odd number of three or more members who

3Prior to its recent amendment, section 30a of article XVI of the Texas Constitution provided:

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 institutions
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 Legislature 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.

Tex. H.R.J. Res. 9, 32d Leg., R.S., 1911 Tex. Gen. Laws 286.
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serve for a term of six (6) years, with one-third, or as near as one-
third as possible, of the members of such boards to be elected or
appointed every two (2) years in such manner as the Legislature 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. The Legislature may provide by law that a board
required by this constitution be composed of members of any number
divisible by three (3) who serve for a term of six (6) years, with one-
third of the members elected or appointed every two (2) years.

TEX. CONST.art. XVI, 8 30a.4 Because the legislature might have to increase or decrease the number
of members to appointed or elected boards as a consequence of the amendments to section 30a, you
ask a series of questions regarding its proper scope and construction.

I. Application of article XVI, sections 30 and 30a, of the Texas Constitution to advisory boards
and advisory commissions

You first ask whether advisory boards and advisory commissions fall within the ambit of
section 30 and the recently amended section 30a of article XVI. You do not ask us to consider any
specific advisory board or advisory commission; rather you ask about advisory boards or advisory
commissions generally.

Your question is prompted by the holding of an attorney general opinion, Attorney General
Opinion H-998 (1977), which, it has been suggested, appears to conclude that the fact that members
of an advisory board created by statute serve staggered six-year terms of office is, alone, sufficient

4Section 30a was amended by House Joint Resolution 29, section 2 of which added the following temporary
provision:

TEMPORARY PROVISION. (a) This temporary provision applies to the amendment to
Section 3Oa, Article XVI, of this constitution, proposed by the 7tjth Legislature, thatprovides that the
governing body of a state agency may be composed of an odd number of three or more members.
This provision expires September I, 2005.

(b) The legislature shallprovide by lawfor the change in composition of the governing body
of a state agency that is composed in accordance with Section 3Oa, Article XVI, of this constitution,
as added in 1912, but that is not composed in accordance with the amendment to that section. Laws
enacted by the legislature under this subsection shallprovide that the change in composition into a
form allowed under this constitution will take place not later than September I, 2003.

(c) The governing body of a state agency composed in accordance with Section 3Oa, Article
XVI, of this constitution, as added in 1912, but that is not composed in accordance with the
amendment to that section, may continue to act as the governing body until a quorum of the members
of the governing body who take ofice under a law adopted under Subsection (b) of this section have
qualtfied.

Tex. H.R. J. Res. 29, 76’h Leg., R-S., 1999 Tex. Gen. Laws 6606.
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to establish that members of the advisory board are public officers whose terms of office are
governed by sections 30 and 30a. You suggest, on the other hand, that members of advisory boards
are not “officers,” citing the definition of “officer” approved in Aldine Independent School District
v. Standley,280 S.W.2d 578,583 (Tex. 1955) (quotingDunbarv. Brazoria County,224 S.W.2d738,
740-41 (Tex. Civ. App. - Galveston 1949, writ ref d)). You maintain that Attorney General Opinion
H-998 has been effectively overruled by subsequent attorney general opinions. See, e.g., Tex. Att’y
Gen. Op. Nos. DM-218 (1993), DM-149 (1992), MW-415 (1981); Tex. Att’y Gen. LO-94-021.

We agree that members of advisory boards or advisory commissions are not “officers,”
generally, for purposes of sections 30 and 30a, provided, of course, that their duties truly are
advisory. We agree, not merely because Attorney General Opinion H-998, has been impliedly
overruled by subsequently issued opinions; we agree because Attorney General Opinion H-998 was
incorrectly decided insofar as it concluded that a member of an advisory board was an “officer” for
purposes of section 30a of article XVI. The Aldine case itself, which sets forth the relevant
definition of “officer,” does so for purposes of section 30 of article XVI; indeed, a line of cases
handed down prior to Aldine concluded that sections 30 and 30a reached only persons vested by law
with some portion of the sovereign functions of govemment to be exercised by them for the benefit
of the public. See, e.g., McDonald v. City ofDallas, 69 S.W.2d 175 (Tex. Civ. App.-Dallas 1934),
rev’d on other grounds,103 S.W.2d 725 (Tex. 1937); Kimbrough v. Barnett, 55 S.W. 120, 122
(Tex. 1900).

Attorney General Opinion H-998 concluded that advisory board members are “civil officers”
for purposes of the Texas Constitution, based upon a prior opinion, Attorney General Opinion H-877
(1976), which itself relied on an earlier letter advisory issued by this office, Letter Advisory 63
(1973). Letter Advisory 63 was expressly overruled in a later opinion, Attorney General Opinion
MW-415 (1981). Letter Advisory 63 drew the now-rejected distinction between “civil office” and
“public office” and indicated that one could be a “civil officer” even though one were not exercising
a sovereign function of the state independent of the control of others. It was precisely the failure of
Letter Advisory 63 to include the requirement that a civil officer, like a public officer, exercise
authority independent of the control of others that compelled its being overruled in Attorney General
Opinion MW-415 (1981).

Moreover, the authority on which Attorney General Opinion H-998 appeared to rely in
support of the proposition that advisory board members were “officers” for purposes of section 30a
of article XVI, namely Attorney General Opinion M-505 (1969), did not address the status of an
advisory board; rather, that opinion addressed whether the terms of office of ex officio members of
the Texas Civil Judicial Council, which was not an advisory board, were subject to the six-year term
of office requirement of section 30a. Therefore, the authorities on which Attorney General Opinion
H-998 relied in support of the proposition that advisory board members are “civil oflicers” for
purposes of section 40 of article XVI and “officers” for purposes of section 30a of article XVI, do
not, in fact, support that proposition.

As you note in your request letter, opinions issued by this office subsequent to the issuance
of Attorney General Opinion H-998 expressly conclude that members of advisory boards are not
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“officers ” for various purposes. See Tex. Att’y Gen. Op. Nos. DM-218 (1993) (for purposes of
article 5 190.6 of the Revised Civil Statutes (the Development Corporation Act of 1979)); DM-149
(1992) (for purposes of the Texas Open Meetings Act); Tex. Att’y Gen. LO-94-021 (for purposes
of a statute creating a water advisory committee). In concluding that members of a city’s advisory
boards are not “officers” for purposes of the Development Corporation Act of 1979, this office noted
that:

Under state law, a public officer generally has a fixed term and may
be removed only in accordance with the applicable provisions of law.
Aldine Indep. School Dist. v. Standley, 280 S.W.2d 578 (Tex. 1955).
In addition, a public officer is someone upon whom some sovereign
function of the government is conferred for the benefit of the public,
largely independent of the control of others. Id. at 583. An individual
who serves in a merely advisory capacity does not exercise sovereign
powers independent ofthe control of others and is therefore not an
of$cer. The determination whether members of a particular
municipal advisory board are officers depends upon the foregoing
factors and must be made on a case-by-case basis.

Tex. Att’y Gen. Op. No. DM-2 18 (1993) at 4 (emphasis added).

We reaffirm the rule of Attorney General Opinion DM-218 and conclude that, while a
member of an advisory board may have a fixed term and may be removed only in accordance with
applicable provisions of law, the fact that such a member does not exercise sovereign powers largely
independent of the control of others precludes such a person, in our view, from being deemed an
officer for purposes of sections 30 and 30a of article XVI. To the extent that Attorney General
Opinion H-998 stands for the proposition that members of advisory boards are “officers” for
purposes of section 30a of article XVI, it is overruled.

You also ask whether an advisory board or advisory commission that nevertheless exercises
what you term “incidental functions” that are “not purely advisory largely independent of the control
of the governmental entity it exists to advise but that [whose] incidental functions are few and de
minimis” may fall within the ambit of sections 30 and 30a of article XVI. See Request Letter, supra
note 1, at 3. It has been suggested that a line of attorney general opinions hold that various offices,
boards, commissions, or agencies having duties incidental to their primary advisory duties are subject
to a “de minimis” rule to the effect that incidental duties do not change the character of that office,
board, or commission from being merely advisory to governmental (or, in one case, from being a
member of one branch of government to another). See e.g., Tex. Att’y Gen. Op Nos. DM-430
(1997), DM-149 (1992), DM-49 (1991), JM-993 (1988), JM-578 (1986), JM-141 (1984), H-1221
(197X), M-l 36 (1967); Tex. Att’y Gen. LO-98-059, LO-95-039.

After examining each of the opinions and letter opinions cited, we conclude that none of
them stand for the proposition that a member of an otherwise advisory board or advisory commission
whose statute confers duties authorizing the member to exercise some “de minimis” sovereign
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functions of the state independent of the control of others somehow remains a member with only
advisory status and is not an “officer” for purposes of the Aldine standard. In several of the cited
authorities, members of boards or commissions that were advisory in name were deemed to exercise
sovereign functions of the state independent of the control of others and, therefore, were held to be
officers of board or commission that were, by law, not advisory. See Tex. Att’y Gen. Op. Nos. DM-
430 (1997) (modifying DM-149 (1992)), JM-993 (1988), H- 122 1 (1978); Tex. Att’y Gen. LO-98-
059, LO-95-039. Attorney General Opinion M-136 (1967), was impliedly overruled by a later
opinion, Attorney General Opinion DM- 149 (1992). Two of the cited authorities do not address this
issue at all. See Tex. Att’y Gen. Op. Nos. DM-49 (1991); JM-578 (1986). And the one opinion that
does invoke a “de minimis” standard, Attorney General Opinion JM-141 (1984), does so when
applying article II, section 1 of the Texas Constitution (the principle of separation of powers) to the
issues of dual office holding and conflicts of interest, an application of article II, section 1 of the
Texas Constitution that expressly has been rejected. See Tex. Att’y Gen. Op. No. JC-0216 (2000).

Nevertheless, echoing the rationales of the opinions cited, we conclude that one must look
to the constitutional or statutory provisions creating the board or commission and conferring
authority on it, in their entirety and on a case-by-case basis, to determine whether a board or
commission is denominated advisory and therefore falls outside the ambit of sections 30 and 30a.
Under the test of Aldine, if an advisory board or advisory commission, in fact, exercises some part
of the sovereign authority of the state largely independent of the control of others, that advisory
board or advisory commission is not truly advisory, regardless of whatever name the board or
commission is given. Because you do not ask us to address whether any specific advisory boards
or advisory commissions having incidental duties are truly advisory, we can offer no more specific
guidance.

II. Status of voting ex officio members in determining the number of members of a board or
commission for purposes of article XVI, section 30a of the Texas Constitution

An ex officio member of a board or commission is a person who holds that ex officio
membership by virtue of his holding another office. The ex officio duties do not constitute a separate
and distinct office; rather, they are additional duties imposed by virtue of that person holding another
particular office. See Irwin v. State, 177 S.W.2d 970, 973 (Tex. Crim. App. 1944); Jones v.
Alexander, 59 S.W.2d 1080, 108 l-82 (Tex. 1933). We understand you to ask whether voting ex
officio board members are counted in determining the number of members of a board for purposes
of section 30a. You suggest that several opinions from this office support the proposition that ex
officio members do not count in determining the number of members under section 30a. See
Request Letter, supra note 1, at 3. (citing Tex. Att’y Gen. Op. Nos. M-901 (1971), M-505 (1969)
M-504 (1969), M-305 (1968)). In fact, none of the opinions cited stand for the proposition that
voting ex officio members do not count in determining the number of members of a board for
purposes of the section 30a; rather, they conclude that voting ex officio members do count in making
that determination.

In Attorney General Opinion M-505, the issue addressed was whether the length of terms of
office of ex officio members of the Texas Civil Judicial Council, a body that comprises both
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appointed and ex officio members, violated the six-year term provision of section 30a. At issue in
the opinion was not whether the ex officio members should be counted for purposes of determining
the number of members under section 30a; rather, the issue was whether the six-year term-of-office
requirement of section 30a applied to the ex officio terms of office. Citing an earlier opinion of this
office, Attorney General Opinion S-94 (1953), which held that the dual-office-holding prohibitions
of sections 33 and 40 of article XVI do not apply to the performance of ex officio duties, the opinion
concluded that, because the ex officio duties are additional and do not have the effect of creating a
separate and distinct office, section 30a does not apply to the performance of those ex officio duties.
Tex. Att’y Gen. Op. No. M-505 (1969) at 2-4.

Attorney General Opinion M-504, while striking down certain term of office provisions in
a statute governing the Texas Board of Licensure for Nursing Home Administrators because such
provisions violated the six-year-term requirement of section 3Oa, expressly held that two ex officio
members of the then-nine-member board were to be counted and that the board comprised seven
appointed members and two ex officio members, in compliance with the divisible-by-three rule of
section 30a. See Tex. Att’y Gen. Op. No. M-504 (1969) at 3,5.

Attorney General Opinion M-901, did not hold that ex officio members do not count in
determining the number of members of a board for purposes of section 30a. See Tex. Att’y Gen. Op.
No. M-901 (1971). One sentence quoted from Attorney General Opinion M-901, taken out of
context, might arguably support such a construction, but a reading of the opinion, as a whole, does
not in fact support such a construction. The opinion addressed a bill that amended the statute
governing the aforementioned Texas Board of Licensure for Nursing Home Administrators to correct
the unconstitutional term of office noted in Attorney General Opinion M-504. The sentence in
Attorney General Opinion M-901 incorrectly described the effect of the amending statute at issue
in the opinion.

The one offending sentence in Attorney General Opinion M-901 stated: “In addition to
changing terms of office of the appointed members of the board, House Bill 1756 reduced the
membership of the board to six (6) appointed members and two (2) ex officio members.” See id.
at 3 (emphasis added). That sentence implied that the number of members of the board was reduced
by the amendment from nine to eight - six “regular” members and two voting ex officio members,
with the voting ex officio members not included in determining the number of members for purposes
of the divisible-by-three rule. Thus, the misstatement in the opinion implied that, in order for the
number of members of the board to comply with the divisible-by-three rule, one could not count the
voting ex officio members. If the two voting ex officio members were not counted, i.e., were
subtracted from the total of eight, the board was left with six members - a number that is divisible
by three.

The quoted sentence of the opinion incorrectly stated the effect of the amended statute, and,
as a result, was wrong to that extent. The amendment to the statute reduced the membership of the
board from a total of nine to a total of six appointed members, not eight, with two of those six
members being ex officio members; the two ex officio members were counted in computing the total
of members to be six. The offending sentence of Attorney General Opinion M-901 incorrectly
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described the effect of the statutory amendment, but the error did not result in the opinion reaching
an incorrect conclusion; the opinion did not address whether voting ex officio members should be
counted when applying the divisible-by-three rule.

Finally, Attorney General Opinion M-305, does not address ex officio members, but rather
addresses “superadded duties” conferred on a state district judge who also serves as a presiding
administrative judge. See Tex. Att’y Gen. Op. No. M-305 (1968) at 3.

The principal purpose of the 1999 amendment to section 30a was to prevent tie votes by
creating boards or commissions composed of odd-numbers of members and to permit the legislature
to increase or reduce the number of members of boards or commissions to numbers other than those
divisible by three. Hearings on Tex. H.R.J. Res. 29 Before the House Comm. on State Affairs,
76th Leg., R.S. (Mar. 8, 1999). The only difference between voting ex officio board members and
other members is in their manner of appointment. See, e.g., Grant v. United Gas Pipeline Co.,
457 S.W.2d 3 15,320 (Tex. Civ. App. - Corpus Christi 1970, writ ref d n.r.e.); Tex. Att’y Gen. Op.
No. DM-160 (1992) (modified by Attorney General Opinion JC-0580 (2002). As opposed to
members whose responsibilities are “advisory,” voting members, including voting ex officio
members, take official action that binds the board or commission on which they serve. As a
consequence, we know of no reason why the legislature that proposed and the voters who ratified
the amendment would want to exclude voting ex officio members in determining the number of
members of a board. Therefore, we conclude that voting ex officio members of boards and
commissions are to be included in determining the number of members for purposes of section 30a
of article XVI of the Texas Constitution.

III. Whether certain boards are “required by this constitution” for purposes of section 30a

We note at the outset that the amended section 30a provides the legislature with two options
when creating boards or commissions whose members’ terms are longer than two years. The first
option is set forth in the first sentence, which applies to “such boards as have been or may hereafter
be established by law,” and is broader in scope than the second option, which is set forth in the
second sentence and applies to boards or commissions “required by this constitution.” The second
sentence carves out a subset, as it were, from the set of all state boards or commissions - the subset
of boards or commissions “required by this constitution.” Thus, if the legislature chooses the first
option, it may do so for any board or commission, regardless of whether the board or commission
“is required by this constitution.” However, if the legislature chooses the second option, it may do
so only for boards or commissions “required by this constitution.” It should be noted, however, that,
merely because a board or commission is “required by this constitution,” the legislature is not
required to employ only the option set forth in the second sentence. The option is just that - an
option - and, the legislature may employ the first option when addressing boards or commissions
“required by this constitution.”

You ask whether the amended section 30a of article XVI applies to a list of specified state
agencies. See Request Letter, supra note 1, at 5-6. Our focus is on the proper construction of the
second sentence added to section 30a by the 1999 amendment: “The Legislature may provide by law
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that a board required by this constitution be composed of members of any number divisible by three
(3) who serve for a term of six (6) years, with one-third of the members elected or appointed every
two (2) years.” TEX. CONST. art. XVI, 8 30a. The threshold issue is the meaning of the phrase
“required by this constitution.” You ask whether the specific boards or commissions about which
you inquire fall within the ambit of the first sentence only of section 3Oa, which requires an odd
number of members, or fall also within the ambit of the second sentence of section 3Oa, which
permits the legislature to create a board having an even number of members divisible by three.

State boards or commissions may be affirmatively created by the constitution, required to be
created by the constitution, or authorized to be created by the constitution. See e.g., TEX. CONST.
art. III, 8 24a (creating the Texas Ethics Commission); id. article V, 8 l-a(2) (creating the State
Commission on Judicial Conduct); id. article VII, 5 8 (requiring the legislature to create a State
Board of Education); id. art. III, 6 47(e) (authorizing state to operate lotteries); id. art. III, 59
(authorizing legislature to pass laws as may be necessary to provide for a workers’ compensation
program)*

However, the mere mention of a board or commission in a constitutional provision does not
create that agency. See Cowell v. Ayers, 220 SW. 764, 765 (Tex. 1920). In Cowell, a statute
creating the State Board of Control and conferring authority on the board that effectively abolished
boards of managers of state asylums was challenged as violating article XVI, section 30a of the
Texas Constitution. It was urged that, because section 30a listed boards of managers of state
asylums as boards whose terms of office could be set at six years by the legislature, such boards of
managers were, in effect, created by the constitution, and that therefore, the legislature was without
authority to abolish those offices. See Cowell, 220 S.W. at 765. The Texas Supreme Court
acknowledged that the legislature was without power to abolish offices created by the constitution,
but it disagreed that section 30a created any office:

The Legislature is without power to abolish constitutional
offices, or to shorten terms of office which are fixed by the
Constitution. . . .

However, the mere mention of an office or of its term in a
Constitution lacks much of creating an office or prescribing the
duration for which it is to be held. . . .

Section 30a uses no language suitable to create offices or to
prescribe terms. The omission of language of this sort - too plain to
be misunderstood - becomes significant when we look to other
sections of the Constitution dealing with public officers. For
instance, we find in positive words that the executive and the judicial
and the legislative departments or power shall consist of, or be vested
in, named officials; that they shall be selected in a certain manner;
that they shall have definite terms; and that they shall perform certain
duties. As such language evidences an intent for the state to always
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have these officers and that they shall be secure in fixed terms, so the
failure to use language of like tenor strongly indicates a contrary
purpose.

Id.; see also City of Denison v. Mun. Gas Co., 3 S.W.2d 794,796 (Tex. 1928) (language in neither
article XVI, section 30, nor article X, section 2 of the Texas Constitution created the Texas Railroad
Commission; commission was created by statute and its creation was permissive).

The relevant sentence of section 30a that includes the phrase “required by this constitution”
was added as a floor amendment in the house and might be construed to refer only to those boards
or commissions affirmatively created by the constitution or, in the alternative, might be construed
to include those agencies that the constitution directs the legislature to create, in addition to those
affirmatively created. Based upon the Cowell court’s reliance on language in articles III, IV, and V
of the Texas Constitution, we have some guidance as to what sort of language will create an office.
See Cowell, 220 S.W. at 765. However, at issue is whether the amended section 30a is intended also
to apply to boards or commissions required to be created by the constitution. After examining the
scant legislative history, we conclude that section 30a is applicable to such boards or commissions.

The legislative testimony, while not dispositive in resolving the matter, does offer
illustrations of boards to which the legislature deemed section 30a to be applicable. The proposed
amendment to section 30a, as filed, passed the committee without change. On second reading on
the house floor, the sponsor of the amendment, Representative Gallego, in offering a “perfecting
amendment” to his own proposed amendment to section 30a, stated:

Currently, the constitution requires that we go on the number
of people on boards from three to six to nine to twelve. We can’t
ever do five members. We can’t ever do seven members. We can’t
do odd numbers of members like that. This [the proposed
amendment to section 3Oa] would allow us to do odd-numbered
boards. There’s a perfecting amendment that next makes sure that if
there is a current six-member board like the Retirement System or
Water Development Board or one of those agencies that has a six-
member board, we wouldn’t be changing that board automatically.

The amendment [to the proposed amendment to section 30a]
is the amendment I first talked to you about with respect to not
changing any of the membership or the numbers on the current
boards.

Debate on Tex. H.R.J. Rex 29, on the Floor of the House, 76th Leg., R.S. (Apr. 22, 1999).
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Because of the sponsor’s express reference to the retirement systems and the Water
Development Board, one of which is affirmatively created by the constitution and the others required
to be created by the constitution, we believe that the phrase “required by this constitution” is
intended to include both boards or commissions affirmatively created by the constitution and those
directed by the constitution to be created. We turn to the specific agencies about which you ask.

1. Board of Pardons and Paroles

The first sentence of subsection (a) of article IV, section 11 of the Texas Constitution
provides: “The Legislature shall by law establish a Board of Pardons and Paroles and shall require
it to keep record of its actions and the reasons for its actions.” TEX. CONST. art. IV, 8 11. No
language in that section specifies either the number or terms of office of members of the board.
Rather, by statute, the Board of Pardons and Paroles comprises eighteen members appointed by the
governor with the advice and consent of the senate, TEX. GOV’T CODEANN. 4 508.031 (Vernon
Supp. 2003), with each serving a six-year term, id. 8 508.037(a) (Vernon 1998). Clearly, the
constitution does not create the Board of Pardons and Paroles; by its terms, the constitution requires
the legislature to create the Board of Pardons and Paroles. Under our construction of the last
sentence of article XVI, section 30a, we conclude that the board is “required by this constitution”
for purposes of section 30a and that the board thereby falls within the permissive scope of the second
sentence of that section.

2. Board of Pardons and Paroles Policy Board

In addition to appointing members to the Board of Pardons and Paroles, the governor is
required to designate six members of the Board of Pardons and Paroles to serve as the Board of
Pardons and Paroles Policy Board, with service on the policy board an additional duty of office for
members of Board of Pardons and Paroles. Id. 5 508.036 (Vernon Supp. 2003). The members of
the Board of Pardons and Paroles designated as members of the policy board serve on the policy
board for six-year terms that are concurrent with their six-year terms on the board, with the service
of two members of the policy board expiring February 1 of each odd-numbered year. Id.

You appear to assume that the Board of Pardons and Paroles Policy Board is created pursuant
to section 11 of article IV of the Texas Constitution. See Request Letter, supra note 1, at 5.
However, the only board required to be created by article IV, section 11 is the Board of Pardons and
Paroles itself. The Board of Pardons and Paroles Policy Board is not “required” by article IV,
section 11.

Section 1 lB(a) of article IV of the Texas Constitution authorizes the legislature to

organize and combine into one or more agencies all agencies of the state that:

(1) have authority over the confinement or supervision of persons
convicted of criminal offenses;
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(2) set standards or distribute state funds to political subdivisions that
have authority over the confinement or supervision of persons convicted of criminal
offenses; or

(3) gather inforrnation about the administration of criminal justice.

TEX. CONST.art. IV, 8 1 lB(a). Even if we were to construe section 11B as providing the necessary
enabling language for the creation of the policy board, the language of section 11B does not
“require” the creation of the policy board. Nor can we find any other provision of the Texas
Constitution that does “require” the creation of the policy board. Therefore, we conclude that the
Board of Pardons and Paroles Policy Board is not “required by this constitution” for purposes of the
amended section 30a of article XVI of the Texas Constitution and thereby falls only within the scope
of the first sentence of that section.

3. State Medical Education Board

The first sentence of section 50a of article III of the Texas Constitution provides that “[tlhe
Legislature shall create a State Medical Education Board to be composed of not more than six (6)
members whose qualifications, duties and terms of office shall be prescribed by law.” TEX. CONST.
art. III, 5 50a. By statute, the board comprises six members with each serving a six-year term. See
TEX. REV. CIV. STAT. ANN. art. 4498c, 5 2 (Vernon Supp. 2003). Clearly, though the Texas
Constitution does not create the board, it does require the legislature to create it. TEX. CONST.art.
III, 5 50a. Therefore, we conclude that the State Medical Education Board is “required by this
constitution” for purposes of section 30a of article XVI of the Texas Constitution and thereby falls
within the permissive scope of the second sentence of that section.

4. Employees Retirement System of Texas

The board of trustees of the Employees Retirement System comprises six members, TEX.
GOV’T CODE ANN. 0 815.001 (Vernon 1994), with each serving a six-year term, id. $9 8 15.002,
815.003 (Vernon 1994 & Supp. 2003). At first blush, it would appear that the Texas Constitution
does not “require” the creation of the Employees Retirement System of Texas. Subsection (a)( 1) of
section 67 of article XVI provides that the legislature “may enact general laws establishing systems
and programs of retirement and related disability and death benefits for public employees and
officers.” TEX. CONST.art.XVI, 8 67(a)(l) (em ph asis added). However, subsection (b)(2) provides
in relevant part that “[tlhe legislature shall establish by law an Employees Retirement System of
Texas to provide benefits for officers and employees of the state . . . .” Id. art. XVI, 4 67(b)(2). We
believe that the legislative history surrounding the adoption and ratification of section 67 supports
the proposition that the Texas Employees Retirement System of Texas is “required” by the
constitution.

Section 67 was adopted in 1975 at the same time that several other sections of the
constitution were repealed. The bill analysis prepared for Senate Joint Resolution 3 stated:
The Honorable Jane Nelson and The Honorable Warren D. Chisum - Page 13 (GA-0021)

The proposed amendment is similar to the proposal which was
overwhelmingly approved during the 1974 Constitutional
Convention. The proposal combines the various detailed provisions
in the present constitution into a more concise provision, eliminates
rigidities which required constitutional amendments each time the
Legislature sought to improve retirement benefits, and strengthens
protections for members of existing systems.

SENATECOMM. ON CONSTITUTION
REVISION,BILL ANALYSIS,Tex. S.J. Res. 3, 64th Leg., R.S.
(1975).

As this office noted in an earlier opinion, the amendment enacting section 67 accomplished
two broad objectives. First, subsection (a) of section 67 is a grant of authority, conferring very
flexible power on the legislature to establish retirement and disability systems. Second, in addition
to the confer-r-al of flexible authority on the legislature set forth in subsection (a) of section 67,
subsections (b), (c), and (d) direct the legislature to establish or retain certain retirement systems.
Subsection (b) of section 67 directs the legislature to create state retirement and disability systems
for teachers, state officers, and state employees. See TEX. CONST.art. XVI, 8 67. See Tex. Att’y
Gen. Op. No. JM-1142 (1990) at 6.

With respect to the Employees Retirement System, the bill analysis declared: “Paragraphs
(1) and (2) of subsection (b) basically retain existing language in mandating the Legislature to
provide for the Teachers Retirement System and the State Employees Retirement System.” SENATE
COMM. ON CONSTITUTION REVISION,BILLANALYSIS,Tex. S.J. Res. 3, 64th Leg., R.S. (1975). We
believe that the language of subsection (b)(2) of section 67 “requires” the legislature to create the
Texas Employees Retirement System for purposes of section 30a of article XVI of the Texas
Constitution and that the System thereby falls within the permissive scope of the second sentence
of that section.

5. Texas Municipal Retirement System

The board of trustees of the Texas Municipal Retirement System comprises six members,
TEX. GOV’TCODEANN. 8 855.001 (Vernon 1994), with each serving a six-year term, id. 8 855.004.
Section (c) of section 67 of article XVI directs the legislature to provide for both local and statewide
retirement systems for local governments and provides in pertinent part:

(c) Local Retirement Systems.

(1) The legislature shall provide by law for:

(A) the creation by any city or county of a
system of benefits for its officers and employees;
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(B) a statewide system of benefits for the
officers and employees of counties or other political subdivisions of
the state in which counties or other political subdivisions may
voluntarily participate; and

(C) a statewide system of benefits for officers
and employees of cities in which cities may voluntarily participate.

TEX. CONST. art. XVI, 8 67(c). It is pursuant to subsection (c)(l)(C) that the Texas Municipal
Retirement System was created.

While it is true that subsection (c)(l)(C) d oes not mention the system expressly by name, the
subsection clearly directs the legislature to “provide by law” for such a system. Moreover, the bill
analysis for Senate Joint Resolution No. 3 declared that the legislature was required to create such
a system:

Paragraphs (l), (2), and (3) of subsection (c) require the Legislature
to provide for (a) the creation of separate local systems by cities and
counties, (b) a statewide system of benefits in which counties or other
political subdivisions can participate on a voluntary basis, and (c) a
statewide municipal system in which towns and cities can participate
on a voluntary basis.

SENATECOMM. ON CONSTITUTION
REVISION,BILL ANALYSIS,Tex. S.J. Res. 3, 64th Leg., R.S.
(1975). Consequently, we believe that subsection (c)(l)(C) of section 67 of article XVI “requires”
the legislature to create a municipal retirement system, by whatever name, for purposes of section
30a of article XVI of the Texas Constitution and that a municipal retirement system thereby falls
within the permissive scope of the second sentence of that section.

6. Texas Water Development Board

The Texas Water Development Board comprises six members, TEX. WATER CODEANN.
8 6.052 (Vernon Supp. 2003), with each serving a six-year term, id. 5 6.056 (Vernon 2000).
Subsection (a) of section 49-c of article III of the Texas Constitution affirmatively creates the Texas
Water Development Board:

The Texas Water Development Board, an agency of the State
of Texas, shall exercise such powers as necessary under this provision
together with such other duties and restrictions as may be prescribed
by law. The qualifications, compensation, and number of members
of said Board shall be determined by law. They shall be appointed by
the Governor with the advice and consent of the Senate in the manner
and for such terms as may be prescribed by law.
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TEX. CONST. art. III, 0 49-c. We conclude, therefore, that the board is “required” by the constitution
for purposes of section 30a of article XVI of the Texas Constitution and thereby falls within the
permissive scope of the second sentence of that section.

7. Texas Prepaid Higher Education Tuition Board

Section 19(a) of article VII of the Texas Constitution creates the Texas Tomorrow Fund, “a
trust fund dedicated to the prepayment of tuition and fees for higher education as provided by the
general laws of this state for the prepaid higher education tuition program,” with the state holding
the assets of the fund “for the exclusive purposes of providing benefits to participants and
beneficiaries and defraying reasonable expenses of administering the program.” TEX. CONST. art.
VII, 8 19(a). Subsection (c) of section 19 provides that “[alssets of the fund may be invested by an
entity designated by general law . . . .” TEX. CONST.art. VII, 8 19(c). Section 19 neither creates the
board nor requires the legislature to create it. Rather, section 19 authorizes the legislature to provide
by law for the administration of the constitutional fund? Consequently, we conclude that the board
is not “required” by the constitution for purposes of section 30a of article XVI of the Texas
Constitution and therefore, the board falls only within the scope of the first sentence of that section.
However, because the board currently comprises seven members, no action by the legislature is
necessary in order for the board to comply with section 30a.

8. Texas Higher Education Coordinating Board

Sections 5Ob-4 and 50b-5 of article III of the Texas Constitution authorize the Texas Higher
Education Coordinating Board “or its successor or successors” to issue and sell general obligation
bonds for certain amounts and for certain purposes. See TEX. CONST. art. III, 59 50b-4, 50b-5.
Section 50b-4 was proposed and ratified in 1995; section 50b-5, in 1999. The purpose of section
5Ob-4 was to “provide [] for the student loan program administered by the Texas Higher Education
Coordinating Board and [to] authorize the issuance of bonds.” HOUSECOMM. ON FINANCIAL
INSTITUTIONS, BILL ANALYSIS,Tex. H.R.J. Res. 50, 74th Leg., R.S. (1995). The purpose of section
5Ob-5 was to “authorize the Texas Higher Education Coordinating Board to create [sic] a general
obligation bond to finance educational loans for students.” SENATERESEARCH CTR.,BILLANALYSIS,
Tex. SJ. Res. 16, 76fh Leg., R.S. (1999). In other words, the purpose of the amendments was to
permit the state to incur debt that the state would not have otherwise been permitted to incur under
the constitution.

The constitution authorizes the board to do certain things, but does not “require” its specific
existence. Indeed, the text of the constitution itself recognizes that the board may not exist at some
time in the future, because both sections include the phrase “its successor or its successors.” No
language in either of the constitutional sections either creates the board or requires the legislature
to create the board; rather, the board is created by section 61.02 1 of the Education Code, a section
whose predecessor statute was first enacted in 1955. See Acts of May 17,1955, 54ti Leg., R.S., ch.

‘Chapter 54 of the Education Code establishes the Texas Prepaid Higher Education Tuition Board. See TEX.
EDUC. CODE ANN.5 54.6001 (Vernon Supp. 2003); 0 54.606 (Vernon 1996).
The Honorable Jane Nelson and The Honorable Warren D. Chisum - Page 16 (GA-002 1)

487,§ 2,1955 Tex. Gen. Laws 12 17. Section 6 1.022 of the Education Code creates the board, which
comprises eighteen members appointed by the governor with the advice and consent of the senate,
with each member serving a six-year term of office and with six members’ terms expiring every two
years. As Cowell declared and as we noted earlier, the mere mention of a board or commission in
a constitutional provision, without more, does not act to create that board or commission. See
Cowell, 220 S. W. at 765. Therefore, we conclude that the board is not “required by this
constitution” for purposes of section 30a of article XVI of the Texas Constitution and therefore, the
board falls only within the scope of the first sentence of that section.

IV. Whether the Texas Military Facilities Commission is subject to article XVI, sections 30
and 30a of the Texas Constitution

Finally, you ask whether the members of the Texas Military Facilities Commission are
subject to article XVI, sections 30 and 30a of the Texas Constitution. Your question is prompted
by a sixty-year-old Texas Supreme Court case and recent statutory changes to the composition and
terms of office of members of the commission. In Texas National Guard Armory Board v. McGraw,
126 S.W.2d 627 (Tex. 1939), the Texas Supreme Court held that the predecessor board to the Texas
Military Facilities Commission was “military” rather than “civil” in nature and thereby not subject
to sections 30 and 30a of article XVI. See McGraw, 126 S.W.2d at 632-33.

We think it is likely that, if the issue were again brought before the supreme court the court
would again hold that sections 30 and 30a of article XVI do not apply to the sole military appointee
to the Texas Military Facilities Commission. However, because of the changed qualifications for
and terms of office of the remaining civilian members of the commission, we believe that the court
would likely conclude that sections 30 and 30a do apply to the civilian members of the commission.
Because the lone military member serves as a voting ex officio member of the commission, we
believe that the commission as a whole would be held to be subject to section 30a.

In McGraw the supreme court concluded that members of the Texas National Guard Armory
Board held “military offices” and not “civil offices,” that sections 30 and 30a of article XVI
governed “civil offices” only, and that as a result, the term-of-office limitations set forth in sections
30 and 30a were not applicable to the board. See McGraw, 126 S.W.2d at 632-33. The statute
creating the board at that time provided that the three members of the Texas National Guard Armory
Board is composed of the three highest ranking active officers of the Texas National Guard who
“shall serve without compensation until their resignation in writing shall be accepted by the
Governor of Texas, or until death or removal for malfeasance.” Id. at 630.

In that case, it was urged that, because the board members serve until death or until they
resign or are removed for malfeasance, those provisions of the act creating the board violated the
term of office limitations of sections 30 and 30a of article XVI. See id. The Texas Supreme Court,
after reviewing the federal and state constitutional and statutory provisions authorizing the
establishment of federal and state military forces, concluded that sections 30 and 30a of article XVI
apply to civil offices only and not to military offices and that the positions established by the statute
creating the board create military offices and not civil offices. Id. at 632-33. Therefore, the court
concluded that sections 30 and 30a of article XVI do not apply to the board. See id.
The Honorable Jane Nelson and The Honorable Warren D. Chisum - Page 17 (GA-0021)

In 1997, the name of the Texas National Guard Armory Board was changed to the Texas
Military Facilities Commission. Act of May 29,1997, 75th Leg., R.S., ch. 1168,s 7,1997 Tex. Gen.
Laws 4405,4414. The commission currently comprises six members - one senior member of the
Texas National Guard, though not necessarily the highest-ranking member, and five members of the
general public - all six of whom are appointed by the governor with the advice and consent of the
senate. TEX. GOV’T CODEANN. $j435.004(a) (V emon 1998). The members of the commission
serve six-year terms of office, id. § 435.007, with vacancies filled in the same manner in which the
position was originally filled, id. 0 435.005, and grounds for removal of a member set forth by
statute. Id. 8 435.006.

You ask whether, because of the altered nature of the membership of the commission, i.e.
from exclusively military to predominantly civilian, and the imposition of six-year terms of office,
the holding of McGraw is still valid. See Request Letter, supra note 1, at 6. We believe that, if the
Texas Supreme Court were to revisit the issue as to whether sections 30 and 30a apply to the
commission, the court would rely on the same rationale it used in 1939, namely the importance of
military knowledge and experience, and hold that the sections do not apply to the lone military
member. However, because the rationale underlying McGraw would not apply to the remaining
civilian members of the commission, we believe that the court would likely hold that sections 30 and
30a apply to those members. Our earlier discussion regarding the status and authority of voting ex
officio members of boards and commissions noted that voting ex officio members differ only in
manner of appointment from other appointed or elected board or commission members and,
therefore, are necessarily included in determining the number of members of that board or
commission. Consequently, we believe that the commission as a whole would be subject to section
30a and that, for purposes of determining the number of members of the commission, the lone
military appointee would be included in the count. Furthermore, because the commission is
established by statute, it is not “required by this constitution” for purposes of section 30a, and
therefore, falls under the scope of the first sentence of that section.
The Honorable Jane Nelson and The Honorable Warren D. Chisum - Page 18 (GA-0021)

SUMMARY

Members of advisory boards and advisory commissions are not “officers” for
purposes of sections 30 and 30a of article XVI of the Texas Constitution. The
determination as to whether a board or commission is advisory, whether denominated
“advisory” or not, must be made by an examination of the constitutional and statutory
provisions creating the board or commission and conferring duties on them, taken in
their entirety, and on a case-by-case basis. Attorney General Opinion H-998 (1977)
is hereby overruled to the extent that it holds that a member of an advisory board or
advisory commission is an “officer” for purposes of sections 30 and 30a of article
XVI.

Voting ex officio members of boards or commissions are included in
determining the number of members of the board or commission for purposes of
section 30a of article XVI of the Texas Constitution.

The Board of Pardons and Paroles, the State Medical Education Board, the
Texas Employees Retirement System, the Texas Municipal Retirement System, and
the Texas Water Development Board are all “required by this constitution” for
purposes of section 30a of article XVI of the Texas Constitution, and the legislature
need not increase or decrease the number of members of those boards to comply with
section 30a. The Board of Pardons and Paroles Policy Board, the Texas Prepaid
Higher Education Tuition Board, and the Texas Higher Education Coordinating
Board are not “required by this constitution” for purposes of section 30a, and the
legislature must either increase or decrease the number of members of those boards
to comply with section 30a.

We believe that it is likely that, if the Texas Supreme Court revisited the issue
addressed in Texas National Guard Armory Board v. McGraw, 126 S.W.2d 627
(Tex. 1939), it would uphold its conclusion that sections 30 and 30a of article XVI
do not apply to the lone military member appointed to the Texas Military Facilities
Commission. However, based on the rationale of its holding in McGraw, it is likely
that the court would conclude that, because of the changed qualifications and terms
of office for civilian appointees to the commission, sections 30 and 30a do apply to
them. The lone military appointee to the commission would be included in
determining the number of members of the commission.

Very truly yours,

Attome G era1 of Texas
u
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BARRY R. MCBEE
First Assistant Attorney General

NANCY S. FULLER
Deputy Attorney General - General Counsel

RICK GILPIN
Deputy Chair, Opinion Committee

Jim Moellinger
Assistant Attorney General