OFFICE OF THE ATTORNEY GENERAL OF TEXAS
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AUSTIN
GROVER SELLERS ._
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The State-;ard or'mbalming
.m Austin - Texas
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Denti~en: : dttention: Mr. Xhas. B. Cook,
~~ I .: ,. secretary
n
Yourrequest r0r an opini
the above subject natter ~bs as fo
the Boar
rm; 'however,this
t Goorth,Texas Bday31, 1945
tin, Texas Nay-31, 1947
cKinney, Texas~ May 31; 1947
Bowle, Texas my 3415x8
, Dallasi.Texas May 31, 1949
, Lamsa, Texas May 31, 1949
Would it be legal for the Governor to make either
a three-year or a six-yeezap~ointient, May 31, 19451"
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The State Board Of mbelmlng - Rage 2
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The rule governing the tenure dr.en officer Is,
that where a statute creates an offloe and prescribes the
length or the term or the incumbent,without fixing the
date;,of-thebe&Ming or termination of such term, the
date of the first aorointment determines the beginning of
the tenure of such appointee and all successivetenures.
.(SeeOpinion Ho. o-5096)
The legislativegenealogy or the State &ard of '
Embalming Is as r0110ws: ..
Senete.Blil76; Chapter XCV, or the &neral Lawi
or the 28th Legislature (1903) first establishedthe Board:
*There is hereby established end created a
Board to be knotinas-the State~Boerdof Bnbalm-
ing. The said Board shall.consistor rive (5)
MeGbere to be appointed by~the State Health-O?- .'
ricer, end all vacancies.occurringIn the Board
shall be filled by the St::,te Health Orricer for
the unexpired terzn.'The term of eech.mesbercf
_. said Board shall be for two years, except those
which~are first appointed, who shall serve as
roiiows: One ror one yeer, two'ror-*o years
and two for three years. the State Health Of-
,ficer shall designate the number of years~in
.ht.s appointment each member shall serve. The
members or said Board shall be.practlcalem-
balmers,~havlngexperience in said business and
the care or and the disposition ot dead.hu5e.n
bodies. The members of said Board shall be
altizsns of this iState.-All eligible for se-
appointment: The appointing officer shall re-
move~any member or said Board for neglect of
duty, incompetencyor eproper~conduct. .'~~
~ ,?TheBoard shall be appointed on or be- ~,
ror the 1st day or June, 1903, and all vacan-
oies occurring thereafter,by the expiration
of their respe6tive terms of'office shall be
rilled annually thereafter on the aforesaid
date."
Senate Bill No. 182,'Cha ter 324, of the Regular
Session of the 44th Legislature 71935) wended S. B. No. 76,
as rou05vs:
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,:*TheState Board or Babalming shall oonslst
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.: oi’rive~ (5) members, whc shall be appointed by
.~~the State Board 09 Health. and who shall bc ll- ._. ‘~1.
I,..: oedaed embalmers, experletkd In said business,
...‘.F.
.Y ~. and the care and disposition of dead huxau Mdies.
TheTterms or orrlce or the Wesent membera o’ithe
Board shall not be erfected by this Act but as
-.‘theterms or otrloe of the present members expire
: after the efieotive date or this Act, suoce3aor.3 c
<
shall.be appointed ior the following terms: :Two ,.
(2) for a period of two (2) years; two (Z),tOr a
._‘:.perkador rour (4) years, and one (1) ror a period
of-skx (6) years, the first vacenciesto.be rllled
:’by. ap lntments for two.(2) years aad the next iOr >.~
four p”
a) years and thF;next for six (6) years. The $
appointees shall serve for the term designated in
.,::if:
1 their eppolntment,~ or until their suooessors shall
~’ be appointed and shall have qualiried, unless soon-
er r@noved rOr oause.R
Xnally, Senate Bill Ho. 276 or the 46th Legislature,
Regular Session, provides: .,._,‘.
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The’ State Board or.&nbalming shall consist ‘:
ei .six’(6) members who shall be llccnsed~embalm-
era experienced, in the buaineas and in the care
and disposition oi dead human bodies. -.The~mem-
hers of said IBoardholding office at the time ot . ’ 1.
the effective date or this Act shall.continue‘to : s ..
hold ortlce ror the duration of the text Zor whi’oh .~ ...”
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they.were eppotited. Any vacancies existing on a i
,the.Board at.the time’of the ,effeo~tive
date of
this Aot shall be filled by the Qvernor of Texas
subject to confirmationby the ,Senate,and the.~.
Governor shall thereaftor’havethe power to fill
veoanoles OE the Board as they occur, and shell
In ap&olnt,i.ngsaid members so designate their
terms that txo (2) places on the iWrd.shall be-
come vacant eaoh tw (2) years. The term or or-
fioe ot each member shall be skx (6) years, All
apEointmentsshall be cenflrmed by a tw+thlrds
vote of the senate of .Tesas. Any vacency in an unexpired
term ~ahallbe tilled by apFolntment oi the Goyernor
rar the unexpired term.* .
4
or, Senate Bill 276_became
_ erfectlve September~
~. 22
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1939, at.which time there existed a vacancy on the Board (the
sixth newly created member) .and the Governor was for the first
: : time authorized to make an appointment. Prior to that time
'F+Y '- ~Ahere was no vacancy (sixth) to be filled. Eevertheless,it
~.appears’from the records of the Searetary or’state that on
June 16. 1939. Governor O’Daniel atteanted to anmint Mr. Rav
QOwderVof Jort ‘.iorth.,
ior a six-year term, expiring Crap31,:
1945; Aocording to the records of the Secretary of State’s
‘ortloe,at the time or the errective date or Sena’tefill NO.
276, the Board consisted of A, B. Rogers, whase term would ex- ”
,plreBay 31, 1943, George Loudermilk, whose term would expire
Hqy 31, 1943, Z. B. Ham, whose term would expire Bay 31, 1940,
Charles B, Cook, whose term would expire Bay.31, 1940, and ..‘,:yr
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R; L. Burgess, zhose term would expire iSa1942. .
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_ Prior to the eriective date or suoh Bill, therefore,
the Board legally con&&ted only of the above-nemed rive mem-
ber -f Rogers, Loudermilk,,Eem,Cook and burgess,w+th expira-
tions as a’uoveshown.
By and -largeit was the &ntenti&n of the~.Leglslature
in Senate Bill No. 276, creating a six-member Boards,~that*two
(2) placed, on the Board shall!beuomeYaoant ‘eachtwo’(2) years.*
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The only way to give effect to that intention (and the
proper way; vrethink) Is to treat the attempted appointment of
Mri Crowder as void landor no errectPunti1the effective date
of Senate Bill 276, at which time it should be given the effect
of,a vaoancy appoinjnnent terminatingwith the term or Idr.Burgess,’
on, to-wit, Yay 31, 1942,~at which time the position was open
ior a full six-year term ripe ‘for appointment. Sinoe,no such
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appofntmentat that time BBS made, it would follvw that=.
Crowder has ‘sincesaid time held over under Section-17, or
Article XVI, or the Constitutionproviding that, *Ail orrlcers
within this State shall &ontinue to perform the duties ot their
offices until their suaeffssorsshall be d&y qualified.” His
oi$icial .actsat aU’tii&s.in this OOMeCtiOlj have been per-
rectly legal, buf there exists a vacancy ror the balance of ..
the term expiringMay 31, 1942. From this it follows the
Governor may make such appointmentfor such vacancy at ,any
time:
ATTORNEY GEiJEML OF TUM
AF?ROVBDRAY 16, 1945’
BY _.
Carlos Ashley (9) Ooie Speer
,:. :.Assistant
FIRST ASSISTANT ,:,,,.
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