Untitled Texas Attorney General Opinion

March 18, 1957 Hon. Paul Brashear, Chairman Opinion No. Ww-62 Military and Veterans' Affairs Committee Re: Whether or not H.B, 416, House of Representatives 88 8mended, Will adverse- Austin, Texas ly affeot the issuance of bonds by the Armory Board. Dear Mr. Breshear: The question presented is whether H.B. 416, as amended by Committee, will affect the power to issue bonds by the Texas National Guard Armory Board. The Armory Board was created by the 44th Legislature, 1935, General Laws, Chapter 184, and codified by Vernon as Arti- cle 589Ob. The Act prescribes board membership; mode of qualification and certification; the.means for the expression of its of- ficial acts; constitutes the board "a body politi,cand cor- porate," outlines its duties and powers, including that ,of borrowing money, issuing and selling bonds, debentures and other evidences of indebtedness; and prescribes f,ormanage- ment and disposition of property acquired by the Board. Insofar as pertinent, H.B. 416, as proposed, would work certain changes in Section 1 of Article 5890%~. They fol- low In resume: (a) The board remains the same numerically but its personnel is to be changed as vacancies occur in the current membership. (b) The current statute provides for a six-year membership term, while H.B. 416 contains no specific term of years.. (c) Article 589Ob provides for an oath of offlce; H.B. 416 does not. Article XVI, Sections 30 and 3Oa, Constitution of Texas, place restrictions on terms of state offices. Section 30 Hon. Paul Brashear - page 2 (WW-62) provides that the duration of all offices not fixed by the Constitution shall never exceed two years and excepts the Railroad Commission. Section 30a specifies a six-year term for named board members and a like term for "such boards as have been, or may hereafter be, established by law . . ." Generally, public offices may be classified as those civil and military. 42 Am,Jur., Public Officers, Sec. 17. The Supreme Court of Texas in Texas Net. Guard Armory Board v. McGraw, 132 Tex. 613, 126 S.W. 26 627 (1939), held that membership on the Texas National Guard Armory Board was a military office and, therefore, the constitutional provl- sions (Article 16, Sections 30, 30-2) are not applic8ble; consequently, the fact that H.B. 416 imposes no fixed year- terms on board membership has no bearing on the validity of the organization of the Board and its power to function. See also Ex parte Archie Dailey, 93 Tex. Cr. R. 68, 246 S.W. 91 (1922) 26 AIR 138. The reasoning of the Court in the McGraw and Dailey cases, supra, excludes the necessity of the prospective members of said Board from taking the usual constitutional oath oft office (required,by Article XVI, Section l), since that of- fice is military and not civil by nature and therefore with- out the purview of said constitutional proviso. The other changes affected by H.B. 416 are minor and incon- sequential insofar as they might have any possible bearing on the Board's bond issuing powers. SUMMARY H.B. 416, as proposed, will not adversely affect the issuance of bonds by the Texas National Guard Armory Board. Very truly yours, GW-s APPROVED: OPINION COMMITTEE H. Grady Chandler, Chairman