.’
Honorable Ereston Smith Opinion No. M-505
Governor of Texas
Capitol Building Re: Construction of House Bill
Austin, Texas 895, Acts of the 6lst Legis-
lature, Regular Session,
Chapter 812, page 2425, re-
lating to the Texas Civil
Dear Governor Smith: Judicial Council.
Your request for an opinion asks the following ques-
tions relating to terms of office of members of the Texas
Civil Judicial Council:
,.. "1. Does Section 2, in providing for four
(4) year terms for two Justices of the Courts of
Civil Appeals and two presiding judges of the
administrative judicial districts violate Article
16, Section 30 of the Texas Constitution?
"2. If so, are the above four (4) year terms
authorized by Article 16, Section 30a of the Texas
Constitution?
“3. If there is a conflict with either of
the above Constitutional provisions, may the
above appointlve members of the Civil Judicial
COunCil be aDDOinted for two
the authority-of Article 16,
Constitution."
Section 2 of House Bill 895, Acts of the 61z.t #Legis-
lature, Regular Session, Ch. 812, P. 2425, amends Section 3 of
Article 2328a, Vernon's Civil Statutes, so as to provide in part
as follows:
"Sec. 3. The ex officio members of the
Council shall consist of the following: (1)
the Chief Justice of the Supreme Court of Texas,
who shall remain a member as long aa he holds
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Hon. Preston Smith, page 2 (~-505)
the position of Chief Justice; (2) two Justices
of the Courts of Civil Appeals, to be designated
by the Governor for overlapping four-year terms,
one to be designated in January, 1971, for a
four-year term and one to be designated in
January, 1973, for a four-year term with the
replacement in each case to be designated by
the Governcr in January of odd-numbered years;
(3) two presiding judges of the administrative
judicial districts, to be designated by the Gov-
ernor for four-year terms, one to be designated
in January, 1971, for a four-year term and one
to be designated in January, 1973, for a four-
year term, with the replacement in each case to
be designated by the Governor in January of odd-
numbered years; (4) the Chairman and the Immediate
past Chairman of the Senate Jurisprudence Committee;
and (5) the Chairman and the immediate past Chairman
of the House Judiciary Committee. . . .'
Ex-officio members of a board do not hold separate
and distinct offices. Rather, the same constitutes additional
duties Imposed upon an officeholder. Attorney General's Opinions
S-94 (1953) and M-47 (1967). In Attorney General's Opinion S-94
(1953), it Is stated:
"The ex-officio duties of the members of the
Texas Highway Commission are additional duties re-
quired to be performed by such officers without ad-
ditional compensation. Therefore, acts of the ex-
officio members of the Board of Directors of the
Texas Turnpike Authority are by virtue of the duties
imposed on Highway Commissioners. The act does not
create a separate and distinct office Insofar as it
applies to such members, and Sections 33 and 40 of
Article XVI of the Constitution of Texas have no ap-
plication. Jones v. Alexander, 122 Tex. 328, 59
S.W.2d 1080 (1933); Eucaline Medicine Co. v. Standard
Investment Co., 25 S.W.2d 2% Tex.Clv.App. error ref.,
1930) Irwin v. State, 147 Tex.Crim. 6, 177 S.W.2d
970 (i944). Therefore, the performance of such ex-
officio duties would not violate the provisions of
Sections 33 and 40 of Article XVI of the Constitution
of Texas.
"The Constitutional oath required of the ex-
officio Directors of the Texas Turnpike Authority
is the same oath that such Highway Commissioners
have already taken. Therefore, It would be a
meaningless thing to require them to again take
the same oath upon assuming their additional
duties. Furthermore, as stated above the members
of the Texas Highway Commission hold only one office."
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Hon. Preston Smith, page 3 (M-505)
The same principle applies to the ex-officio members
of the Texas Civil Judicial Council. Therefore, in answer to
your first and second questions, their term of office is not
governed by the provisions of Section 30 or 30a of Article
XVI of the Constitution of Texas for the reason that the same
is not a separate and distinct office.
In answer to your third question, Section 4 of
Article 2328a, Vernon's Civil Statutes, as amended by House
Bill 895, supra, provides in part:
"Sec. 4. The appolntive members of the
Council shall consist of nine resident citizens
of the State of Texas, seven of whom shall be
members of the State Bar of Texas and two of
whom shall be persons not licensed to practice
law, including at least one who is by profession
a journalist. The Governor of Texas shall select
the appointive members of the Council for six-
year overlapping terms, three to be appointed
to serve until July 1, i975, three to serve until
July 1, 1977, and three to serve until July 1,
1979, and thereafter their successors shall be
appointed for terms of six years; provided that
appointive members of the Council holding office
on the effective date cf this Act shall continue
in office for the balance of the term to which
they were appointed, and their successors shall
be selected in the manner and for the term herein
provided. Vacancies in the appointive membership
of the Council shall be filled by appoint?ent Of
the Governor for the unexpired term only.
Section 30 of Article XVI of the Constitution of
Texas provides that the duration of all offices not fixed by
this Constitution shall never exceed two years. Section 30a
of Article XVI of the Constitution of Texas provides:
"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 institu-
tions of the State, and such boards as have been,
or mav 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
-2423-
Hon. Preston Smith, page 4 (M-505)
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."
It is noted that Section 4 of Article 2328a as amended
by House Bill 895 states that the appointive members of the
Council shall consist of nine resident citizens who hold their
respective offices for a term of six years, one-third of the
members to be appointed every two years, to wit: until July
1, 1975, July 1, 1977 and July 1, 1979. Therefore, Section 4
complies with the provisions of Section 30a of Article XVI
of the Constitution of Texas.
SUMMARY
The ex-officio members of the Texas Civil
Judicial Council do not hold separate and distinct
offices and therefore their terms are not governed
by the provisions of Sections 30 and 30a of Article
XVI of the Constitution of Texas. The appointive
members of the Council serve for a term of six
years, one-third of the members to be appointed
every two years. The term of office of such ap-
pointive members therefore complies with Section
30a of Article XVI of the CoTtitution of Texas.
Prepared by John Reeves
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
George Kelton, Vice-Chairman
Harold Kennedy
Houghton Brownlee, Jr.
Sarah E. Phillips
Bill Corbusier
Jack Dil:ard
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Hon. Preston Smith, page 5 (M-505)
MEADE F. GRIFFIN
Staff Legal Assistant
NOLA WHITE
First Assistant
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Untitled Texas Attorney General Opinion
Combined Opinion