‘i
The Attorney General of Texas
August 9, 1983
JIM MATTOX
Attorney General
Honorable Gary Thompson Opinion No. m-55
Supreme Court Building
P. 0. BOX 12546
Chairman
Austin. TX. 78711. 2548 County Affairs Committee Re: .Whether a" outgoing board
51214752501 Texas House of Representatives of directors of Lavaca Hospital
Telex 9101674-1367 P. 0. Box 2910 District may take any action
Telecopier 5121475-0266
Austin, Texas 78769 after the annual election and
prior to canvassing votes for
1607 Main St.. Suite 1400 Honorable Brad Wright the election
Dallas. TX. 75201.4709 Chairman
2141742.6944 Committee on Public Health
Texas House of Representatives
4624 Alberta Ave., Suite 160
P. 0. Box 2910
El Paso. TX. 79905.2793 Austin, Texas 78769
9151533.3484
P Dear Representative Thompson and Representative Wright:
,220 Dallas Ave.. suite 202
Houston. TX. 77002-6986
You have inquired about the validity of actions taken by the
7131650-0666 board of directors of the Lavaca Hospital District at a meeting held
on April 4, 1983. This hospital district was created by House Bill
No. 509, enacted in 1975. Acts 1975, 64th Leg., ch. 16, 91, at 23.
606 Broadway. Suite 312
See V.T.C.S. art. 4494q. The essential facts, as set forth in a
Lubbock. TX. 79401-3479
8061747-5236
letter from Representative Wright, are as follows:
The Lavaca Hospital District is governed by a"
4309 N. Tenth, Suite 6 elected board of directors of seven members who
McAllen. TX. 78501.1665 serve for two year staggered terms; four of which
5121662.4547
are elected in odd-numbered years, and three are
elected in even-numbered years. The question
200 Main Plaza. Suite 400 posed herewith involves actions on old business
sari Antonio, TX. 76205-2797 that were taken by the board of directors on April
5121225.4191
4, 1983. The April 4 board actions on old
business included the approval of minutes and a
An Equal opportunityi resolution that was the culmination of several
affirmative Action Employer years of study and effort by the then-current
board, earlier boards of directors, and the
board's physician recruitment comnlittee. The
board voted (5 for, 1 against, 1 abstaining) to
authorize the making of a recruitment offer to a
physician needed by the community who had been
recruited for some time to come to
Hallettsville. . . .
p. 229
.
Honorable Gary Thompson
Honorable Brad Wright
Page 2 (JM-55)
Any business transacted by the Lavaca Hospital
District according to the hospital's legislative
enactment, must be by a vote of at least 5 to 2.
Article 4494q, ch. 16 (H.B. NO. 509. 64th
Legislature, Regular Session, 1975) V.T.C.S. The
question about the legality of the business
conducted by the board on April 4 has been raised
by three new board members. The business
transacted by the old board about which questions
have been raised was conducted on April 4, 1983,
after the election of new officers but prior to
the canvassing of the votes, the qualification of
the newly elected board members and their swearing
I", which occurred at the April 4 meeting after
old business was transacted.
The question presented is as follows:
Was the action by 5 out of 7 incumbent members of
the Lavaca Hospital District on April 4, 1983, in
conducting old business which consisted of the
approval of minutes from the previous meeting, and
the approval of an offer to be made to recruit a
physician to practice in the community, a lawful
or an unlawful exercise of their power as
directors when the action was taken after the
election of three new board members but prior to
their being qualified, the votes being canvassed,
and their being sworn in as new board members?
We conclude that this action was legally taken.
Article XVI, section 17 of the Texas Constitution, the so-called
"holdover" provision, provides that:
All officers within the State shall continue to
perform the duties of their offices until their
successors shall be duly qualified.
As this office said in Attorney General Opinion V-760 (1949):
The purpose of [this] constitutional provision is
to insure, in so far as possible, that there be no
cessation in the functions of government. It
continues the officer in the office with all the
powers incident thereto until his successor has
duly qualified. Jones v. City of Jefferson, 66
Tex. 576, 1 S.W. 903; State v. Jordan, 28 S.W.Zd
921 (Cl". App. 1930, writ dism'd); 34 Tex. Jur.
373, Officers, Sec. 31; 46 C.J. 968, Officers,
Sec. 110; annotation 74 A.L.R. 486.
.
HonOrable Wad Wright
Page 3 (JM-55)
See also, s. Pyote Independent School District v. Estes. 390 S.W.Zd
~(1Tex.i". App. - El Paso 1965. writ ref'd n.r.e.); Attorney General
Opinions M-857 (1971); V-868 (1949).
The directors of the Lavaca Hospital District are clearly
"officers" within the meaning of article XVI, section 17. Under this
co"stit"tio"al provision, officers who hold over until their
successors have duly qualified are de jure officers. Attorney General
Opinion M-857 (1971) and authorities cited therein. Thus, until their
successors duly qualified for office on April 4, the directors of the
Lavaca Hospital District who were not reelected on April 2 were &
~ officers and were therefore legally entitled to exercise all of
the rights and perform all of the duties associated with their office.
In our opinion, these rights and duties clearly include the right to
take the actions in question here.
It has been suggested that the actions of the board at the April
4 meeting were illegal because section 4(c) of House Bill No. 509
provides that the ten" of office of each director shall automatically
expire on the date on which the director's successor is elected. It
has been argued, in other words, that section 4(c) provides that the
term of office of each director shall run from election day to
election day, and, therefore, that after April 2, the board "ceaseId]
to function as a decision making body and exist[edl only to fulfill
its ministerial function of canvassing the votes and declaring the
results of the election." Brief of Lavaca County Attorney, at p. 2.
We disagree.
Section 4(c) does provide for one or two year terms for each
original director of the district. These terms expired on the first
Saturday in April of either the first or second year following the
creation of the district. Section 4(c) also provides that the
original directors' "[sluccessors shall be elected. . . for two-year
terms." It is therefore clear that the terms of office of the
directors who were not reelected on April 2 ended on that date.
It does not follow, however, that after April 2, these directors
were powerless to do anything other than canvass the votes and declare
the results of the April 2 election. To accept this argument would be
to conclude that for approximately two days, there was an insufficient
number of directors clothed with the power to take official action.
If this were true, the board could not have governed the district
during that two day period -- even if, during that interim, an
emergency had arisen and official action had become necessary.
The purpose of article XVI, section 17 of the constitution
obviously was to cover such situations as this. This provision was
designed to ensure an orderly transition and to avoid an interruption
in governing authority. Even though section 4(c) of House Bill No.
509 provides that the terms of office of directors of the hospital
district officially run from election day to election day, directors
p. 231
Honorable Gary Thompson
Honorable Brad Wright
Page 4 (JM-55)
who are not reelected continue to serve as & lure officers until
their successors have duly qualified for office. Put another way,
section 4(c) cannot, in light of article XVI, section 17, be read
literally to create a hiatus in governing authority.
It has also been suggested that the actions of the board at the
April 4 meeting were illegal because, under the Election Code, the
only function which the board could perform at that meeting was to
canvass the votes and declare the results of the April 2 election.
Again, we disagree.
The Election Code does require the board of directors to meet on
"the Monday next following the day of election or sooner" to, inter
&, "open the election returns and canvass the result." Elec. Code
art. 8.34. See also Elec. Code art. 8.29a. However, neither these
provisions of the code nor any other statute or bylaw to which our
attention has been directed stipulates that this is the only action
that may legally be taken at that meeting. Such a construction,
moreover, would create the same problem discussed above: a period of
time, albeit a short one, would exist during which the board could not
legally do anything other than deal with election matters. As we have
noted, article XVI, section 17 exists to insure that no such time
period can exist.
In sunsnary,we conclude that (1) no statute or bylaw of which we
are aware provides that, at the April 4 meeting, the board could &
canvass the votes of the April 2 meeting and declare the results of
that election; (2) if such a provision did exist, its validity would
be dubious in light of article XVI, section 17 of the constitution;
(3) although the terms of office of the directors who were not
reelected on April 2 officially expired on that date, these directors
continued to seTYe as & jure officers until their successors
qualified for office on April 4; and therefore (4) the actions taken
by the board on April 4 were legal.
SUMMARY
The directors of the Lavaca Hospital District
who were not reelected on April 2~ did not act
illegally in considering old business of the
district at a meeting held on April 4 prior to the
qualification of their successors as director*
Jtz7-
MATTOX
Attorney General of Texas
p. 232
. .
Honorable Gary Thompson
Honorable Brad Wright
Page 5 (JM-55)
TOM GREEN
First Assistant Attorney General
DAVID R. RICHARDS
Executive Assistant Attorney General
Prepared by Jon Bible
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Rick Gilpin, Acting Chairman
Jon Bible
David Brooks
Colin Carl
Jim Moellinger
p. 233