Untitled Texas Attorney General Opinion

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT

December 10, 2010

The Honorable Florence Shapiro Opinion No. GA-0829
Chair, Committee on Education
Texas State Senate Re: Whether the Governor must appoint an
Post Office Box 12068 additional member to the Texas Higher Education
Austin, Texas 78711-2068 Coordinating Board to serve from September 1,
2011 to August 31, 2013 (RQ-0896-GA)

Dear Senator Shapiro:

You inform us that the Texas Higher Education Coordinating Board (the "Board") formerly
consisted of eighteen members but currently consists of nine. See TEX. EDUC. CODE ANN. § 61.022
(West 2006) (requiring that the Board have nine members).! The reduction in Board membership
began in 2003 when the Legislature enacted Senate Bill 286, a 2003 amendment to section 61.022.
Act of June 1,2003, 78th Leg., R.S., ch. 820, § 2, 2003 Tex. Gen. Laws 2579, 2579-80. Senate Bill
286 incrementally reduced Board membership by requiring the appointment of three new Board
members in 2003 for terms expiring in 2009, four new members in 2005 for terms expiring in 2011,
two new members for terms expiring in 2013, and two new members every two years thereafter. ld.
You are concerned that this schedule of appointments would result in eight rather than nine members
serving on the Board from August 31, 2011 to August 31, 2013. Request Letter at 1-3. This
concerns you because article XVI, section 30a, of the Texas Constitution requires that boards
"established by law[] may be composed of an odd number of three or more members." Request
Letter at 1; TEX. CONST. art. XVI, § 30a. Accordingly, you ask whether the Governor should appoint
an "additional" Board "member to fill a vacancy on September 1, 2011 to expire on August 31,
2013." Request Letter at 2-3.

The Board would have a vacancy if it had eight members with unexpired terms serving from
September 1, 2011 to August 31, 2013. See TEX. EDUC. CODE ANN. § 61.022 (West 2006)
(requiring that the Board have nine members); Denison v. State, 61 S.W.2d 1017, 1021 (Tex. Civ.
App.-Austin 1933, writ refd) (holding that a vacancy exists when an appointed officer's term
expires). Article XVI, section 30a, requires that "vacancies in such offices ... be filled as may be
provided by law." TEX. CaNST. art. XVI, § 30a.' Thus, the Texas Constitution recognizes that there

'Request Letter (available at http://www.texasattorneygeneral.gov).

2This provision applies to "such boards as have been, or may hereafter be established by law." Tex. H.R.J. Res.
9, 32d Leg., R.S .• 1911 Tex. Gen. Laws 286, 286-87. reprinted in 15 H.P.N. GAMMEL, THE LAWS OF TEXAS 1911
(continued ... )
The Honorable Florence Shapiro - Page 2 (GA-0829)

could be a vacancy on the Board and assigns the Legislature the duty to decide how the vacancy
should be filled. [d. The Legislature performed this duty when it enacted Senate Bill 286. See supra
Act of June 1,2003, at 2601 (providing, "To achieve an orderly transition from 18 to 9 positions on
the Texas Higher Education Coordinating Board ... the governor shall appoint only two members
to the coordinating board for terms expiring on August 31,2013."). Consequently, the Governor
may make appointments to the Board as Senate Bill 286 prescribes. He need not appoint an
additional member to serve from September 1, 2011 to August 31, 2013.

It is important to note that article XVI, section 17, of the Texas Constitution provides, "All
officers within this State shall continue to perform the duties of their offices until their successors
shall be duly qualified." TEX. CONST. art. XVI, § 17. Therefore, one of the Board members whose
terms expire on August 31, 2011, would continue to perform the member's duties until his or her
successor is qualified to serve on the Board. An officer continuing to perform his or her duties after
the expiration of the officer's term would be a de jure officer retaining all the authority he or she. had
before the officer's term expired. Delamora v. State, 128 S.W.3d 344, 356 (Tex. App.-Austin
2004, pet. ref' d).

'( ... continued)
(Austin Printing Co. 1911) (enacting article XVI, section 30a) (added Nov. 5, 1912). The Board was established by law.
See Act of Feb. 25, 1965, 59th Leg., R.S., ch. 12, §§ 1-2, 1965 Tex. Gen. Laws 27, 27 (creating the Coordinating Board,
Texas College and University System), amended by ActofJune 1, 1987, 70th Leg., R.S., ch. 823, § 1.03, 1970 Tex. Gen.
Laws 2839, 2840 (stating that the Coordinating Board, Texas College and University System would thereafter be known
as the Texas Higher Education Coordinating Board).
The Honorable Florence Shapiro - Page 3 (GA-0829)

SUMMARY

The Governor may appoint members to the Texas Higher
Education Coordinating Board as provided by Senate Bill 286 ofthe
78th Legislature, Regular Session. He need not appoint an additional
member to serve from September 1, 2011 to August 31, 2013.

Very truly yours,

DANIEL T. HODGE
First Assistant Attorney General

DAVID J. SCHENCK
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Jason Boatright
Assistant Attorney General, Opinion Committee