The opinion
i
Honorable T. J. Crowe, Secretary
Texas State Board of Medlcal Examiners
Texas Bank Building
Dallas, Texas
Dear Sir: Opinion No. O-3183
Re: Who are the properly au-
thoria+d members of the
Texas State Board of Medl-
cal Examiners to issue valid
medical certificates?
Your request for an opinion from this department has been rc-
ceived and considered. We quote from your request:
“The terms of office of four members of this board
expired th$ year. Two of them, Drs. Buie and Connally
were re,appointed, and Dr. W. ‘C. Morrow, thdthird man
was rea$#olnted to serve out the unexpired term of Dr.
Buie, who was given a six-year term.
“One of the two new appointees, Dr. Crabb, of Fort
Worth, was confirmed by the Senate the day follpwing the
close of the June examination meeting, the other%ominee,
Dr. Sparks of Dallas up to this writing has not been con-
firmed by the Senate.
“All of the examinations were conducted by the then
existing members of the board, who are now grading the
papers of the examlneer Ln their respective subjects, and
it is the general averages made oa such gradlng that awards
of license will be made by the Board on July Zlst, and un-
lees your department rules otherwise, the members of the
board who examined the clasres In each of the 12 eubjectr
who should sign the license certificates, dated aa of July
tlst, aotwithstanding commission may have been issued
to two new members in the meantime. Is this the correct
procedure, in view of the fact that the board Lntends, as
usual, to reorganize after the work of Its predecessor has
been finished. ,
“If the board should proceed otherwise, will you kindly
Honorable T. J. Crowe, page 2 (Opinion No. O-3183)
direct its action in completton of the June examinations
and the issuance of valid license certificates, ln order
to avoid subsequent question of the legality of its clos-
ing official duties,”
We also quote from your supplemental request as follows:
“Referring to your letter of July 5th, concerning
our request for an opinion, No. O-3183 assigned to
Walter Koch, this is to advise you that the license cer-
tificates referred to therein are due to be issued on
Sunday, July 2Oth, which is the date set for completion
of the work of the June examinations, and we should
have your opinion before the board on that date, in order
to determine by whom the license certificates earned by
the examinees of said examination shall be signed.
“In this connection I might mention that none of the
new appointees have up to this time presented to the board
the commission issued to them by the Secretary of State
authorizing them to assume the duties of board members.
It is presumed they will do so in the meeting of the 2Oth,
as above mentioned.”
The 42nd Legislature, Regular Session; 1931, enacted House
Bill No. 7, which Act is generally referred to as tie “Medical Practice
Act of Texas.” The Act is carried in Vernon’s Civil Statutes under Chap-
ter 6 of Title 71, as Articles 4495 and 4498, and as Article 739 of Vernon’s
Penal Code of Texas. The Act became effective April 13, 1931.
Article 4495 reads, in part, as follows:
“The Texas State Board of Medical Examiners shall
consist of twelve men, learned in medicine, legal and aq-.,
tlve practitioners in the State of Texas, who shall have
resided and practiced medicine in this State, under a di-
ploma from a legal and reputable college of medicine of
the school to which said practitioner shall belong, for
more than three years prior to their appointment on said
Board. n . Within thirty days after this Act becomes
effective, the members of the first Board, as provided in
this Act, shall be appointed by the Governor of the State.
Of the members first appointed, four shall serve for a
term of two years, or until their successors shall be
appointed and qualified; four shall serve for a term of
four years, or until their successors shall be appointed
and qualified; and the remaining four members shall
serve for a term’of six years, or until their suhessors
shall be appointed and qualified. Thereafter, at the ex-
Honorable T. J. Crowe, page 3 (Opinion No. O-3183)
,
piration of the term of each member, of the Board
first appointed, his successor shall be appointed by
the Governor of the State, and shall serve for a term of
six years, or until his successor shall be appointed and
qualified. . ”
Pursuant to the authority vested in the Governor by the above
Statute, appointments were made to the places created on the Texas State
Board of Medical Examiners. The letter submitting the names of the
appointees issued by the Governor under the Act, specified the date of
termination of the respective terms of office provided for and doubtless
calculated each of them from the effective date of ‘the Act, to-wit, April
13, 1931. A further examination of the submission of appointments of
the subsequent Governors of this State show that the date of the expira-
tion of eaoh term of office of an appointee to said Board was calculated
and the date of expiration of the term of office was destgnated as April
13, of each respective year.
The records of the Secretary of State show that on December
30, 1936, Dr. N. D. Buie was appointed to fill the unexpired portion of a
six year term to expire April 13, 1943.
On June 2, 1941, Governor W. Lee’G’Daniel submitted the
following to the 47th Legislature:
“I ask the advise, consent and confirmation of the
Senate to the following appointment:
“To be members of the Board of Medical Examiners
for six years expiring April 13, 1947,
Dr. H. F. Connally of Waco, McLennan County
(re-appointment)
Dr. Sam F. Sparks, of Dallas, Dallas County
(to succeed Dr. R. H. Peterson)
Dr. M. H. Crabb, of Ft. Worth, Tarrant County
(to succeed Dr. W. C. Morrow)
Dr. N. D. Buie of Marlin, Falls County
(to succeed Dr. M. M. Brown).
“To be a member of the Board of Medical Examiners
to fill the unexpired term of Dr. N. D. Bule, appointed to
a six year term: Dr. John A. Hart, of Beaumont, Jefferson
County, (term expires April 13. 1943):’
On June 5, 1941, the Governor submitted to the 47th Legislature
Honorable T. J, Crowe, p,age 4 (Opinion No. O-3183)
the following:
“I am sorry to inform you that Dr. John A. Hart
of Beaumont will be unable to accept appointment on
the Board of Medical Examiners and, therefore, I am
withdrawing his name for confirmation.”
On June 16, 1941, the same Governor submitted to the Senate
of the 47th Legislature the following:
“I ask the advise, consent and confirmation of
the Senate to following appointments:
“TO be a member of the Board of Medical Exami-
ners, term to expire April 13, 1943: Dr. W. C. Morrow
of Greenville, Hunt County.”
The records of the Secretary of State also show that the appointees
referred to were confirmed by the Senate as fol.lows:
Dr. Buie, June 18, 1941;
Dr. Connally, June 18, 1941;
-
Dr. Crabb, June 18, 1941;
Dr. Sparks, July 3, 1’94 1;
Dr. Morrow, June 18, 1941.
The same official records show that each of the above named Doctors were
duly issued commissions on June 18, 1941, with the exception of Dr. Sparks,
The records do not sho&, whether or not his l:ommission has yet beenissued.
We now consider when the new appol?‘ees, whom we have referred
to, become members of the Texas State Boa:?d cf Medical Examiners.
Under Article 16, Section 17, of OX- Texas Constitution, all offi-
cers within the State shall continue to perform the duties of office until their
successors are duly qualified. This constitutional provision is applicable to
members of the Texas State Board of Medical Examiners. An incumbent who
holds over continues in office with all the powers incident thereto until a suc-
cessor has duly qualified. He is a de jure and not a de facto officer. Though
his term has expired, he may continue to perform the duties of the office.
34 Tex. Jur. 373.
Under the laws of this State we are of the opinion that member of
the Texas State Board of Medical Examiners, under the factsfiubmitted by
. ‘-
Honorable T. J. Crowe, page 5 (Opinion No. O-3163)
you, has duly qualified when: (1) He-has been duly appointed by the
Governor; (2) his appointment to the office has been duly confirmed by
the Texas Senate; (3) a commission of office has been duly issued by
the Governor and attested by the Secretary of State; (4) the appointee
has taken the required constitutional oath of office in the county of his
residence as required by law (Art. 4496, V.A.C.S.). We find no statute
requiring members of the Board to execute an ,official bond. When all
of these requisites are shown we believe the appointee has duly quali-
fied for the office to which he was appointed and becomes invested with
all the rights and prlvileges pertaining to said office and is entitled to
exercise the duties imposed upon his.
As a corresponding proposition, we are of the opinion that,
in the absence of a statute to the contrary, all rights and duties of the
predecessor in office terminate upon the qulification of the new officer.
From a discussion of the foregoing principles of law, which
we think are applicable to your proposition, you are respectfully advised
that it is our,opinion, that Drs. R. H. Peterson, W. C. Morrow, M. M.
Brown, who have been succeeded on the Board, as hold overs from and
after April 13, 1941, could legally perform official duties as members
of said Board until such time as their successors have duly qu,alified in
the manner heretofore discussed. Any official acts performed by either
of them, within the scope of their lawful duties, under such circumstances
would be proper and legal. However, after their respective successors
have duly qualified we believe their official status ceases to exist and that
their acts performed thereafter would have no legal status as being acts
performed by them as members of the Texas State Board of Medical
Examiners. It is also our opinion that their successors, upon becoming
duly qualified, would succeed to all powers and duties incumbent upon
them as members of said Board.
The status of Dr. H. F. Connally who was appointed to succeed
himself, would not be changed by such appointment and his acts would be
official, as a hold over, until such time as he qualified to succeed himself.
When Dr. N. D. Buie accepts his new appointment by qualifying
for the six year term on the Board, he would, in our opinion, contemporan-
eously, by implication, resign from his former status as a member of the
Board. 34 Tex. Jur. 351.
Dr. W. C. Morrow seems to have been re-appointed not to
succeed himself for a six year term but for the unexpired term of Dr. N.
D. Buie, which expires on April 13, 1943.
You *are, therefore, advised that the only authorized members
of the Board who have authority to perform any official act, as members
thereof, are those who, at said time, are lawfully holding office. If none of
the newly appointed members have, at the time of the meeting referred to
Honorable T. J. Crowe, page 6 (Opinion No. 3183)
in your inquiry, duly qualified in-the manner heret.ofore discussed,
then they are not at that time authorized to perform any official act
and approve or sign any certificate. T,he proper persons, under those
facts, would be the old members of the Board who are holding over
until their successors are duly qualified. However, If oxi the date of
your meeting any new member has duly qualified, which fact you can
ascertain fromhim, then such duly qualified member is the proper one
and only one to perform an? official act.
We are not unmindful of th.e practical situation involved and
the problem confronting the Board;; However, the law, as we have ex-
pressed it, is clear and the Legislature has not made any provision to
cover instances where only a portion of an official act has been com-
pleted before the termination of a member’s official status. The pro-
blem, under the presently existing law, is one to be solved by the genius
of the Texas State Board of Medical Examiners.
We trust that in this matter we have fully answered your
inquiry.
Very truly yours,
APPROVED JUL 18, 1941
A+TORNEYGENERALOFTEXAS
/s/ Gerald C. Mann
ATTORNEY GENERAL OF TEXAS By /s/ Harold McCracken
Ha:rol.d McCracken
HM:db:ps Assistant
APPROVED OPINION COMMITTEE
By BWB Chairman