TEE ATTORNEY GENERAL
OF TEXAS
June 5, 1987
Mr. Bob E. Bradley Opinion No. JM-720
Executive Director
Texas State Board of Re: Whether section 4(d) of article
Public Accountancy 41a-1. V.T.C.S., makes a member of
1033 La Posada, Suite 340 the State Board of Public Accountancy
Austin, Texas 78752 ineligible for reappointment
Dear Mr. Bradley:
You ask whether a member of the Board of Public Accountancy is
barred from reappointmrnt by the following provision of The Public
Accountancy Act of 1979:
A board member who has served as a member for
six consecutive years shall not be eligible for
reappointment until two years shall have elapsed
between the end of the term of his last prior
appointment and the beginning of the term of a new
appointment.
V.T.C.S. art. 41a-1. 54(d). See Attorney General Opinion C-171 (1963).
The term of office of a board member is six years. V.T.C.S. art.
41a-1, 14(a).
The board member you inquire about was appointed by the governor
to the Board of Public Accountancy on May 12. 1981, to a term ending
on January 31. 1987. Thus, he had served as a board member for iess
than six consecutive years when his term came to an end on January 31,
1987. Section 4(d) of article 41a-1, V.T.C.S., did not therefore
render him ineligible for reappointment upon the expiration of his
term.
The board member's term has already ended, and he has continued
to serve in a holdover capacity as required by article XVI, section
17. of the Texas Constitution. We will consider whether this service
will affect his eligibility for reappointment. Article XVI. section
17, of the Texas Constitution provides as follows:
All officers within this State shall continue
to perform the duties of their offices until their
successors shall be duly qualified.
Tex. Const. art. XVI, 517. See also V.T.C.S. art. 41a-1, 54(a) (each
board member shall continue until a succsssor is appointed). The
purpose of section 17 is "to prevent a break in the public service and
p. 3348
Mr. Bob E. Bradley - Page 2 (m-720)
to insure continuity by requiring all officers, after their respec-
tive terms of office had expired" to continue to serve until their
successors had qualified. Underwood v. Childress Independent School
District, 149 S.W. 773, 774 (Tex. Civ. App. - Amarillo 1912, writ
dism'd). While the officer is holding over, there is a vacancy in
office which may be filled by the appropriate authority. State v.
Catlin, 19 S.W. 302 (Tex. 1892).
In our opinion, the "six consecutive years" in article 41a-1,
section 4(d), must be served in a six year term. The gap of two years
required between six year terms served by one person is measured from
the end of one term to the beginning of another, suggesting that the
legislature had in mind a six year term, and not six years served
partially as an officeholder and partially as the holdover occupant of
a legally vacant office. Moreover, the prohibition in section 4(d)
was adopted only two years after board members' terms were lengthened
from two to six years, with a transition period requiring two or four
year terms for some board members. Acts 1961, 57th Leg., ch. 289, 53,
at 608, 609; Acts 1959, 56th Leg., ch. 493, 91, at 1082. Thus, the
legislature may have used the language "six consecutive years" instead
of "a six year term" to include board members who had served six years
in two or three terms. Service by the board member after January 31,
1987. in a holdover capacity will not be considered in determining
whether he may be reappointed to the board.
If the board member is reappointed, he will hold office for a
term beginning on February 1, 1987, and ending on January 31. 1993.
Ills tenure of office during the second term would be six years,
whether he was reappointed on February 1, 1987. or after May 12, 1987
following service in a holdover capacity. Our conclusion that the
board member's service in a holdover capacity does not contribute to
his "six consecutive years” service provides for consistent treatment
of board members. Those whose reappointment is delayed through the
governor's inaction will be treated consistently with those who are
reappointed upon the expiration of their terms. Our construction thus
reaches a fair result without undermining the purposes of section 4(d)
of article 41a-1, V.T.C.S.
SUMMARY
Section 4(d) of article 41a-1, V.T.C.S.. The
Public Accountancy Act of 1979, applies to board
members who have served a full six year term and
bars them from reappointment to the board until
two years have elapsed from the end of that term.
JIM MATTOX
Attorney General of Texas
p. 3349
Mr. Bob E. Bradley - Page 3 (~~-720)
JACK HIGHTOWEB
First Assistant Attorney General
MARY KELLER
Executive Assistant Attorney General
JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Susan L. Garrison
Assistant Attorney General
p. 3350