Untitled Texas Attorney General Opinion ( 1971 )


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    THE     ,~ITCBE&NEU            GENERAL
    OFTEXAS
    Hon. Wayne W. Connally,       Opinion No. M-852
    Chairman
    Parks & Wildlife Committee    Re:     Constitutionality of in-
    State Senate Chamber                  creasing Membership of the
    Austin, Texas   78711                 Parks and Wildlife Commis-
    sion without abolishing
    the present commission.
    Dear Senator Connally:                (Art. 978f-3a, V.P.C,)
    The Senate Parks and Wildlife Committee, of which you
    are Chairman, has asked our opinion as follows:
    "Can the present membership of a State
    Commission be enlarged in its membership
    without abolishing the present member-
    ship of the Commission?"
    The statute creating the present Commission and its
    Department is found in Article 978f-3a, Vernon's Penal
    Code of Texas.
    Sections 1 through 3, inclusive, of this statute read
    as follows:
    "Section 1. From and after the effective
    date of this Act, the Game and Fish Com-
    mission shall be reconstituted and known
    as the 'Parks and Wildlife Department',
    which shall be under the policy direction
    of a Commission which shall consist of
    three (3) members, one (1) of whom shall
    be designated by the Governor as Chairman.
    The members of the Parks and Wildlife Com-
    mission shall be appointed by the Governor,
    which appointments shall be with the ad-
    vice and consent of two-thirds (2/3) of
    the Members of the Senate present, if in
    Session, and if not in Session, the Gover-
    nor shall appoint such Members and issue
    -4137-
    Hon. Wayne W. Connally, page 2        (M-852)
    a commission to them as provided by law,
    and their appointment shall be submitted
    to the next Session of the Senate for
    their advice and consent in the manner
    that appointments to fill vacancies under
    the Constitution are submitted to the
    Senate. The Governor shall appoint the
    members of the Parks and Wildlife Com-
    mission, one (1) whose term shall expire
    February 1, 1965, one (1) whose term
    shall expire February 1, 1967, and one
    (1) whose term shall expire February 1,
    1969, or until their successors are ap-
    pointed and qualified.   In case of a
    vacancy in Commission membership, the
    Governor shall appoint a rep~lacement
    member to fill the unexpired term of
    the vacating member. A quorum for the
    dispatch of official business shall be
    two (2) members.   Thereafter, the Gover-
    nor shall appoint members for terms of
    six (6) years. The members of said
    Commission shall be reimbursed for their
    actual expenses incurred in attending
    meetings, and shall be paid a per diem
    as set out in the General Appropriations
    Act. The Commission shall meet as often
    as it deems necessary, but shall meet
    at least once every quarter of the year.
    "Sec. 2. The term of office of the pre-
    sent members of the Game and Fish Com-
    mission shall expire with the effective
    date of this Act; provided, however,
    that this provision shall not preclude
    the Governor from appointing one (1)
    or more members to the Parks and Wild-
    life Commission provided for in Section
    1 of this Act.
    "Sec. 3. The Parks and Wildlife Com-
    mission shall have the power and auth-
    ority to appoint an Executive Director
    who shall be the chief executive officer
    of the Parks and Wildlife Department and
    -4138-
    .   -
    Hon. Wayne W. Connally, page 3          (M-852)
    shall perform its administrative duties.
    Such Executive Director shall have auth-
    ority to appoint such heads of divisions,
    game and fish wardens, park managers, and
    other employees as may be authorized by
    appropriations therefor and as may be
    deemed necessary for executing, administer-
    ing and carrying out the duties and ser-
    vices authorized by law to be performed
    by the Parks and Wildlife Commission and
    the Parks and Wildlife Department.  The
    Executive Director shall serve at the
    will of the Parks and Wildlife Commission.
    All other employees shall serve at the will
    of the Executive Director.
    We are not concerned in this opinion with the exist-
    ing statutory relations between the Commission and the
    Department, but only with whether the present Commission
    membership can be constitutionally increased without abol-
    ishing it and creating an entirely new one.
    We hold that the Legislature may increase membership
    on the present Parks and Wildlife Commission.
    It has been held that where the office is purely statu-
    tory, it is within the powers of the Legislature to abol-
    ish an office or a board and create new ones. 47 Texas
    Jur.2d, Public Officers, Sec. 53, 54, pages 78-79. Terms of
    statutory officers or board members may be shortened or
    lengthened by the Legislature.  47 Tex.Jur.2d, Public Offi-
    cers, Sec. 38, page 58; Popham v. Patterson, 121 Texas 615,
    
    51 S.W.2d 680
    (1932). This rule does not apply in the case
    of officers fixed by the Texas Constitution. Cowell v.
    Ayers, 110 Texas 348, 
    220 S.W. 764
    (1920).
    The Legislature has the power to enact any law not in
    conflict with the state or federal constitutions, or federal
    laws. 53 Tex.Jur.Zd, Statutes, Sec. 33, pages 58-59; DeShazo
    v. Webb, 131 Texas 108, 
    113 S.W.2d 519
    (1938). It can change
    the law at any time. San Antonio & A.P.R. Co. v. State, 128
    Texas 33, 
    95 S.W.2d 680
    (Tex.Com.App. 1936). It can suspend
    laws. Texas Const. Art. I, Sec. 28; 53 Tex.Jur.Zd, Statutes,
    Sec. 37, page 68.
    -4139-
    Hon. Wayne W. Connally, page 4              (M-852)
    We find nothing in the Texas Constitution which pro-
    hibits adding members to a state board or Commission, and
    we therefore hold that since the Texas Constitution does
    not prohibit or limit the power of the Legislature to add
    additional members on such a statutory board or Commission
    as the Parks and Wildlife Commission, the proposed statute
    is constitutional.
    SUMMARY
    -------
    The Legislature can constitutionally increase
    the membership of a board or commission such
    as the Parks and Wildlife Commission by add-
    ing new members.
    Yours very truly,
    CRAWFORD C. MARTIN
    Attorney General of Texas
    1
    NOLA WHITE
    First Assistant
    Prepared by Roger Tyler
    Assistant Attorney General
    APPROVED:
    OPINION COMMITTEE
    Kerns Taylor, Chairman
    W. E. Allen, Co-Chairman
    Malcom Smith
    Scott Garrison
    V. F. Taylor
    James Quick
    MEADE F. GRIFFIN
    Staff Legal Assistant
    ALFRED WALKER
    Executive Assistant
    -4140-
    

Document Info

Docket Number: M-852

Judges: Crawford Martin

Filed Date: 7/2/1971

Precedential Status: Precedential

Modified Date: 2/18/2017