-E ATRTORh’EY GENE-L
cm TEXAS
AUSTIN II.T-s
November 5, 1963
Honorable Edwin E. Merriman Opinion No. C-171
Chairman, Texas State Board
of Public Accountancy Re: Constitutionality and
Perry-Brooks Building construction of Article
Austin 1, Texas 41a, Sec. 4(a), V.C.S.
(Public Accountancy Act).
Dear Mr. Merriman:
You have requested the opinion of this office as
to the constitutionality of Article 41a, Section 4(a),
Vernon's Civil Statutes. In the event the questioned
provision is held to be constitutional, you have asked
that we construe the provision with reference to the terms
ofoffice to which it applies.
In 1961, the 57th Le lslature enacted Senate Bill
No. 100, Chapter 282 , page 808, amending the Public Ac-
countancy Act of 19 5, codified as Article 41a, Vernon's
Civil Statutes. Among other amendments was a new section
numbered 4(a) which reads as follows:
"Sec. 4. (a) A Board member, who
has served as a member for six (6) con-
secutive years, shall not be eligible
for reappointment until a lapse of two
(2) years shall have occurred between
the end of the term of his last prior
appointment and the beginning of the new
term of a new appointment."
In the brief accompanying your opinion request, it
is concluded that the above-quoted provision Is unconstitu-
tional for the reason that a Board member is a public of-
ficer, that the Constitution of Texas (Article XVI) de-
lineates those disqualified from holding public office, and
that the provision unconstitutionally Imposes an additional
requirement for office. We are forced to disagree with this
conclusion.
There is no doubt that the position of a member of
the State Board of Public Accountancy is a position of ublic
trust within the terms of Article XVI, Sections 33 and fb
Texas Constitution. These provisions are aimed at the
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Honorable Edwin E. Merriman, Page 2. (c-171)
problem of dual office holding. Such a Board member Is also a
public officer within the meaning of the constitutional pro-
visions heretofore cited, disqualifying certain persons from
holding public office. But it is going too far to attempt to
say that the Legislature may impose no standards upon a Board
member other than those imposed by the Constitution.
The cases to which we have been cited in support of
the proposition that Section 4(a) Is unconstitutional all in-
volve qualification for an elective office. For such an of-
fice on the State level, the qualifications are imposed by the
Constitution, and we certainly agree that the Legislature may
not alter them. But such Is not the case with the various
State Boards and administrative agencies that have been created
by the Legislature alone.
The Constitution creates no special standard for member-
ship on the Board of Public Accountancy. Indeed, it does not
even make mention of this Board. And the same is true of the
large number of professional boards that have been established
by the Legislature. To say that the Legislature may impose no
standard of its own volition would mean that the Legislature
would be unable to require that a member of the Board of Medical
Examiners be a doctor, that a member of the Board of Architec-
tural Examiners be an architect, ad infinitum. Membership on
these Boards is not a constitutional right as to which the
Legislature may not impose a classification or limitation.
Article XVI, Section 30a, of the Texas Constitution pro-
vides that the terms of various State Boar; members may be ex-
tended to six years. It further provides . . . 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 the opinion of this office that the Legisla-
ture, in enacting Article &la, Section 4(a), Vernon's Civil
Statutes, was acting in compliance with Article XVI, Section
30a, and did not exceed its constitutional powers.
With reference now to the second part of your o inion
request, re arding the proper construction of Article z la,
Section 4(a7 , Vernon's Civil Statutes, quoted above, it is
the opinion of this office that the provision is clear and
unambiguous. This provision went into effect 90 days after
May 29, 1961, the date of adjournment of the regular session
of the 57th Legislature. Although it has been contended that
the provision was meant to be purely prospective in nature,
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.*
I
Honorable Edwin E. Merriman, page 3. (c-171)
and apply only to those members who commenced six year terms
after the effective date of the act, such is not the clear
effect of the act.
From the words used at the outset of Section 4(a), the
retroactive effect Is atent: "A Board member, who has served
as a member for six (6P consecutive years, . . .% (emphasis
supplied). The general rule is that a statute is always con-
strued to operate prospectively only unless a contrary con-
struction is evidently required by plain and unequivocal lan-
guage in the statute. Government Personnel Mutual Life Insur-
ance Co. v. Wear, 151 T!ex.454 251 S W 2d 525 (1952) S h
plain and unequivocal language'is preiek in this ena&me%.
It must further be noted that, were the construction to be
otherwise, then the statute would have no practical effect
until six years after its effective date.
We must further note that, while the statute Is retro-
active in Its effect, it is not in violation of Article I,
Section 16, Texas Constitution, since it does not operate to
impair or destroy any vested right. City of Fort Worth v.
Morrow, 284 S.W. 274 (Tex.Civ.App. 1926, error ref.).
It is therefore the opinion of this office that any
member of the State Board of Public Accountancy who has
served as such member for six (6) consecutive years, regard-
less of the date of commencement of such service, is not
eligible for reappointment until a lapse of two (2) years
shall have occurred between the end of the term of his last
prior appointment and the beginning of the new term of a new
appointment.
SUMMARY
Article 41a, Section 4(a), Vernon's
Civil Statutes, is constitutional.
Article 41a, Section 4(a), Vernon's
Civil Statutes, is interpreted to
mean that any member of the State
Board of Public Accountancy who has
served as such a member for six (6)
consecutive years, regardless of
the date of commencement of such
service, is not eligible for reap-
pointment until a lapse of two (2)
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‘.
Honorable Edwin E. Merriman, page 4. (C-171)
years shall have occurred between the
end of the term of his last prior ap-
pointment and the beginning of the new
term of a new appointment.
Yours very truly,
WAGGONER CARR
Attorney General
ML&:ms:zt
~~&u~
Assistant
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Jack Norwood
Brady Coleman
Jack Goodman
W. 0. Shultz
APPROVED FOR THE ATTORNEY GENERAL
BY: Stanton Stone
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