Untitled Texas Attorney General Opinion ( 1953 )

. .’
March 9, 1953
Hon. Henry B. Hardt, President
Board of Examiners in the Basic Sciences
407 Perry-Brooks Building
Austin, Texas Opinion NO. s-16
Re: Eligibility of a board
member to continue serv-
ing after terminating the
employment with an insti-
tution of higher learning
which was required to
qualify for appointment
Dear Sir: to this office.
Your request for an opinion reads in part as
follows:
"This is a request for information con-
cerning eligibility of a member of The Texas
State Board of Examiners in The Basic Sci-
ences.
"One of the members of the original
Board appointed by Governor Shivers in 19%
was Dr. Ophelia C. Wesley of Daniel Baker
College. Her first appointment was for a
two year term. At the expiration of the
two year term she was re-appointed by
Governor Shivers for a six year term. A
few weeks ago she severed connections with
Daniel Baker College, and is at present
not connected with~a college or university.
My question now is, is she still eligible
to be a member of the Board? Her services
are quite satisfactory and we will be glad
to have her continue to be a member of the
Board, if it is permissible under the law."
Qualifications of the Board of Examiners in
the Basic Sciencesare prescribed in Section 3 of Article
1 .
Hon. Henry B. Hardt, page 2 (s-16)
459Oc, Vernon's Civil Statutes, which provides in part
as follows:
I, . e . The members of the Board shall
be selected because of their knowledge of
the basic sciences named in this Act, and
each member shall be a professor,-or an
assistant or associate professor or an
instructor on the faculty of the University
of Texas, the Agricultural and Mechanical
College of Texas, the Texas Technological
College, Baylor University, Southern Met&
odist University, Texas Christian University,
St. Edwards University, Rice Institute,
Southwestern University, or any other insti-
tution or college located within the State
of Texas of equal academic standing and
facilities for instruction. Each member
shall have resided in the State of Texas
not less than one (1) year next preceding
his appointment. No member of the Board
shall be actively engaged in the practice
of the healing art or any branch thereof,
nor possess or have in the past possessed a
license to practice the healing art or any
branch thereof, nor be employed by any
medical branch of any school or college."
Under the provisions above quoted, each mem-
ber is specifically required to be a professor, assist-
ant, associate professor or an instructor on the faculty
of a college within the State of Texas. The sole ques-
tion for our determination is whether this eligibility
requirement applies only to the time of appointment or
if it is of a continuing nature. Although we have been
unable to find any Texas case on this question, it is
stated in 8% A;L.R. 82%, that "Eligibility to public
office is of a continuing nature, and must subsist
at the commencement of the term, and during the occu;
panty of the office." State ex rel. Coe v. Harrison,
217 Ala. 80 114 So. 905 (1927); Jeffries v. Rowe, 63
Ind. 592 (197%); State ex rel. Johnston v. Donworth,
127 MO. App. 377, 105 S.W. 1055 (lgO'();Corn.v. Yeakel,
13 Pa. C. 615 (18%); State e; rel. Fugina v.
;i;;w~) ;;: W;;.p;a 2;C@31ij1;49Eq3
( 926); Brown v.*Woods,
Contra: Plunkett v.
Miller, 162'Miss. 149, '137So. j37 (1931).
Hon. Henry B. Hardt, page 3 (s-16)
It is seen by the above quoted authorities '~'
that it is the general rule in other jurisdictions that
an officer vacates his office whenever he becomes in-
eligible to hold the office, for eligibility require-
ments are of a continuing nature. This rule is in ac-
cordance with the general policy in this State in regard
to the residence requirement set out in Section 14 of
Article XVI of the Constitution of Texas which states:
"All civil officers shall reside wlth-
in the State; and all district or county
officers within their districts or counties,
and shall keep their offices at such places
as may be required by law; and failure to
comply with this condition shall Vacate the
office so held*" (Emphasis added.)
Since Dr. Ophelia C. Wesley is no longer con-
nected with a college or university, it is our opinion
that she is not now eligible to be a member of the
Board of Examiners in the Basic Sciences.
SUMMARY
Each member of the Board of Examiners
in the Basic Sciences is required by Sec-
tion 3 of Article 459Oc, Vernonss Civil
Statutes, to be a professor, assistant, as-
sociate professor, or an instructor in the
faculty of a college located within the
State of Texas at all timeb during his or
her term of office.
Yours very truly,
APPROVED: JOHN BEN SHEPPERD
Attorney General
J. C. Davis, Jr.
County Affairs Division
C. K. Richards
Reviewer "&Reti
Assistant
Robert S. Trotti
First Assistant
John Ben Shepperd
Attorney General
JR:am