Must the Texas Governor appoint an extra member to the Higher Education Coordinating Board?

Plain-English summary

The Texas Higher Education Coordinating Board used to have eighteen members and was being shrunk to nine. The Legislature ran that shrinkage through Senate Bill 286 in 2003, which set a staggered schedule: appoint a few new members in 2003, a few in 2005, two for terms expiring in 2013, and two more every two years after that. A state senator did the math on that schedule and worried it would leave the board with only eight members (an even number) for the stretch from August 2011 through August 2013. Because the Texas Constitution says a board "established by law" may have an odd number of three or more members, she asked whether the Governor had to appoint an extra member to fill what looked like a vacancy for that period.

The Attorney General said no. The Constitution does provide that vacancies on such boards are to be "filled as may be provided by law," which hands the question to the Legislature. The Legislature already answered it: Senate Bill 286 spelled out exactly how the transition from eighteen to nine seats would run, directing the Governor to appoint only two members for terms expiring on August 31, 2013. So the Governor could simply follow the schedule the statute laid out and did not need to add an extra member for the 2011 to 2013 window.

The opinion added a backstop point. Under another constitutional provision, an officer keeps performing the duties of the office until a successor is duly qualified. So a board member whose term ended on August 31, 2011 would keep serving as a holdover (a de jure officer with full authority) until someone was appointed and qualified to replace him or her. Between the statutory schedule and the holdover rule, the board would not be left short.

Currency note

This opinion was issued in 2010. Subsequent statutory amendments, court decisions, or later Attorney General opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

What the opinion meant for those who asked

The Governor's office (as the opinion held for it): The opinion concluded the Governor could appoint members as Senate Bill 286 prescribed and did not need to appoint an additional member to serve from September 1, 2011 to August 31, 2013.

The Legislature and the board (what the opinion described): The opinion explained that the Constitution leaves the filling of board vacancies to the Legislature, and that the Legislature had exercised that authority through Senate Bill 286's transition schedule from eighteen to nine seats.

On a seat that looked empty (what the opinion noted): The opinion noted that under article XVI, section 17, a member whose term expired would keep serving as a holdover until a successor qualified, so the board would not be left understaffed during the transition.

Common questions

Did the Governor have to appoint an extra board member to keep the count odd?
The opinion concluded he did not. He could appoint members on the schedule Senate Bill 286 set out, which directed only two appointments for terms expiring August 31, 2013.

Doesn't the Texas Constitution require an odd number of board members?
The opinion acknowledged article XVI, section 30a, but explained that the same provision lets the Legislature decide how to fill vacancies, and the Legislature did so through Senate Bill 286.

What happens to a member when their term ends but no replacement has been appointed?
The opinion explained that under article XVI, section 17, the member continues to perform the office's duties as a holdover, with full authority, until a successor is duly qualified.

Where did the nine-member size come from?
The opinion pointed to Education Code section 61.022, which requires the board to have nine members, and to Senate Bill 286, the 2003 amendment that phased the board down from eighteen.

Background and statutory framework

The Texas Higher Education Coordinating Board, once eighteen members, was reduced to nine. Tex. Educ. Code Ann. § 61.022 (West 2006). That reduction began with Senate Bill 286 in 2003, which amended section 61.022 and set a staggered appointment schedule: three new members in 2003 for terms expiring in 2009, four in 2005 for terms expiring in 2011, two for terms expiring in 2013, and two more every two years thereafter. The senator's concern was that this would leave eight members serving from August 2011 to August 2013, in tension with article XVI, section 30a, which provides that a board established by law may be composed of an odd number of three or more members. Tex. Const. art. XVI, § 30a.

The Attorney General explained that a board with eight members holding unexpired terms would have a vacancy, see Denison v. State, 61 S.W.2d 1017, 1021 (Tex. Civ. App.-Austin 1933, writ ref'd), and that article XVI, section 30a, requires such vacancies to be "filled as may be provided by law." Tex. Const. art. XVI, § 30a. That language assigns the Legislature the task of deciding how a vacancy is filled, and the Legislature performed it through Senate Bill 286, which directed the Governor to appoint only two members for terms expiring on August 31, 2013, to achieve an orderly transition from eighteen to nine positions. The Governor could therefore make appointments as Senate Bill 286 prescribed and did not need to appoint an additional member for the 2011 to 2013 period.

The opinion closed with the holdover rule. Article XVI, section 17, provides that all officers continue to perform the duties of their offices until their successors are duly qualified. Tex. Const. art. XVI, § 17. A board member whose term expired on August 31, 2011 would therefore keep serving until a successor qualified, as a de jure officer retaining the authority held before the term expired. Delamora v. State, 128 S.W.3d 344, 356 (Tex. App.-Austin 2004, pet. ref'd).

Citations

Statutes:

• Tex. Educ. Code Ann. § 61.022 (West 2006)
• Tex. Const. art. XVI, § 30a
• Tex. Const. art. XVI, § 17
• Act of June 1, 2003, 78th Leg., R.S., ch. 820, § 2, 2003 Tex. Gen. Laws 2579, 2579-80

Cases:

• Denison v. State, 61 S.W.2d 1017, 1021 (Tex. Civ. App.-Austin 1933, writ ref'd)
• Delamora v. State, 128 S.W.3d 344, 356 (Tex. App.-Austin 2004, pet. ref'd)

Legislation referenced:

• Senate Bill 286, 78th Leg., R.S. (2003)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0829
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2010/ga0829.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts were corrected; the linked PDF is authoritative.

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).[1] 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. Id. 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 ref'd) (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. CONST. art. XVI, § 30a.[2] Thus, the Texas Constitution recognizes that there could be a vacancy on the Board and assigns the Legislature the duty to decide how the vacancy should be filled. Id. 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).

SUMMARY

The Governor may appoint members to the Texas Higher Education Coordinating Board as provided by Senate Bill 286 of the 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

[1] Request Letter (available at http://www.texasattorneygeneral.gov).

[2] This 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 (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 Act of June 1, 1987, 70th Leg., R.S., ch. 823, § 1.03, 1987 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).