Untitled Texas Attorney General Opinion ( 1977 )

THEA~TORNEYGENERAL
OF TEXAS
AUSTIN. Texas 78711
Honorable L. B. Davis, Jr. Opinion No. H-1065
President
State Board of Morticians Re: Continued service on
1513 S. Interstate 35~ State Board of Morticians
Austin, Texas 78741 by member who has changed
employment.
Dear Mr. Davis:
You advise that two members of your board were appointed
by the Governor on the same date and that both were confirmed
by the Senate. One was employed at the time by a corporation
owning and controlling more than three funeral establishments
in Texas, and the other was the proprietor of a single funeral
establishment. Both appointees qualified and began their Board
service. Later, the sole proprietor sold his business and
became an employee of the same corporation for which the other
board member works. You ask if either of them is now disquali-
fied to serve on the board.
The State Board, of Morticians is created by section 2A of
article 4582b, V.,T.C.S. In part it reads:
There is hereby created the State Board
of Morticians . . . consisting of six (6)
members who shall be citizens of the
United States and residents of the State
of Texas, and shall be licensed embalmers
and funeral directors in the State of
Texas. . . . The members of said Board
shall be appointed by the Governor, by
and with the consent of the Senate for a
period of six (6) years. . . . No member
shall be appointed to the Board who is an
officer or employee of a corporation or
other business entity controlling or oper-
ating directly or indirectly, more than
three funeral establishments, if another
member of the Board is also an officer
or employee of the same corporation or
other business entity.
p. 4566
Honorable L. B. Davis, Jr. - Page 2 (H-1065)
It has been suggested to us that neither man is dis-
qualified by article 458233 from continued service because
the statute speaks of particular qualifications only for
appointment, not for service.
In Attorney General Opinion H-578 (1975) we were asked
whether a member of the Board of Private Investigators and
Private Security Agencies who was statutorily required at the
time of his appointment to represent a certain profession could
continue to serve on the board after he left that profession.
We characterized the question as "whether or not a person meeting
the qualifications for a particular office at the time of his
appointment but later giving up those qualifications neverthe-
less may continue in office." We think the present question is
essentially the same.
Citinq Phaqan v. State, 510 S.W.2d 655 (Tex. Civ. App. --
Ft. Worth i974, writ rmn.r.e.1, Whitemarsh v. Buckley, 324
S.W.2d 298 (Tex. Civ. ADD. -- Hous ton 1959, no writ), and
Attorney General Opinion-WW-1387 (1962), we said in H-578:
Surely, the Legislature, in specifically
calling for varying qualifications for
members of [the] Board, intended for
those qualifications to be represented
on the Board. And, following the dictates
of the Phagan case, when a person no
longer meets the qualifications for a
position of the Board, it must be held
that he loses his right to serve and the
position is vacated.
We reaffirm that conclusion here. The Legislature is
empowered to enact provisions as to eligibility for statutory
offices. Oser v. Cullen, 435 S.W.2d 896 (Tex. Civ. App. --
Houston~ [lst Dist.1 1969, writ ref'd w.0.j.). It is plain
that the Legislature wished to prevent Mortician Board domi-
nation by representatives of any single chain of establishments.
If the H-578 rationale did not apply, there would be nothing to
prevent all members of the Board from becoming employees of a
single corporation owning or controlling multiple funeral es-
tablishments. Cf. Attorney General Opinion H-4 (1973).
-
You have also asked which member is to be considered dis-
qualified, and whether the Board has any jurisdiction or control
of its own membership as to the disqualification of the members.
In our opinion, the board member who changed his status
suffers the consequences of the change. At the time he became
p. 4567
Honorable L. H. Davis, Jr. - Page 3 (H&1065)
an empioyee of the corporation there was another employee of
that corporation already sitting on the Board. The member
whose status bhanged so as to become such an additional rep-
resentative of that corporation thereby Vacated his office.
Attorney General Opinion H-578 (1975). See 47 Tex. Jur.~ 2d
Public ,Officers S 44.
You also ask whether the State Hoard of Morticians has any
jurisdiotion or control over the qualifidations of its own
memebrs L Section 2A of article 4582b authorizes the Governor
to remove any Board member "for neglect of duty, incompetence,
or fraudulent or dishonest conduct." It require;u;;;aovffnor
to remove any member "whose license to practice
recting and/or embalming has been voided, revoked or suspended."
No portion of article 458213, or any other statute, grants to
the Hoard itself any jurisdiction over the qualifications of
its members. It is well established that
an administrative agency . . . has only
such powers as are expressly granted to
it by statute together with those neces-
sarily implied from the authority con-
ferred or duties imposed.
Staufferv. City of San Antonio, 344 S.W.2d 158, 160 (Tex. 1961).
It is therefare our opinion that the State Board of Morticians
has no jurisdiction or control over the qualifications of its
own members. -See Attorney General Opinion H-226 (1976).
SUMMARY
A member of the State Board of Morticians
who changes employment so as to become an
employee of a corporation that owns and
operates more than three funeral establish-
ments and that already employs another mem-
ber of the Board, vacates his Board member-
ship by becoming so employed. Qualifications
for membership on the State Board of Morti-
cians have been set by the Legislature and
are not within the control of the Board it-
self.
p. 4568
Honorable L. B. Davis, Jr. - Page 4 (H-1065)
APPROVED:
DAVID M. KENDALL, First Assistant
Opinion Committee
jst
p. 4569