Do term limits for a state board count the service a member did before the term-limit law existed?

Texas AG Opinion JM-1233: Do Board Term Limits Count Service From Before the Law Passed?

Plain-English summary

The Executive Director of the Texas State Board of Pharmacy asked whether a particular board member could be reappointed for another term. The member had been appointed to a full term in 1973, reappointed in 1979, and reappointed again in 1985. In 1981, between those appointments, the legislature added a provision to the Texas Pharmacy Act saying that a board member "may not serve more than two consecutive full terms."

The member's theory was that his service should be counted starting in 1985, treating the 1981-to-1985 stretch as merely finishing an unexpired term, so that 1985 and a hoped-for 1991 appointment would be his two allotted full terms. He argued that counting his pre-1981 service would apply the term-limit law retroactively, which the law does not say to do.

The Attorney General rejected that reading and concluded the member could not be reappointed in 1991. Counting service that happened before the 1981 amendment is not a retroactive application of the statute. The key idea is that a term limit looks at a person's continuing status, not at a single past act. A law is not retroactive just because some of the facts that determine present eligibility (here, the earlier terms served) happened before the law took effect. The opinion also pointed out that a board member holds a public office, not a vested property right: the legislature could have shortened his term or abolished the office entirely, so it could certainly count his past service in setting a term limit. Because the legislature chose not to write a grandfather clause into article 4542a-1 (unlike the way the Twenty-Second Amendment exempted the sitting President when presidential term limits were adopted), the two-term cap applied to this member in full.

Currency note

This opinion was issued in 1990 and interprets the Texas Pharmacy Act as it stood then (article 4542a-1, V.T.C.S.). The Pharmacy Act has since been recodified into the Occupations Code, and board-membership rules may have changed. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule mentioned here.

Who this opinion affected (as of 1990)

The Texas State Board of Pharmacy and its appointing authority: The opinion told the board that the member appointed in 1973 and reappointed in 1979 and 1985 had exhausted the two-full-term limit and was not eligible for reappointment in 1991.

Members of other Texas state boards and commissions: The reasoning applies generally. When the legislature sets a limit on consecutive terms, service completed before the limit was enacted still counts, because holding the office is a continuing status rather than a vested right the legislature cannot touch.

People appointed to public office in Texas: The opinion restated a blunt point about public office. An officeholder has no contract or property right in the office; subject to the constitution, the legislature can fix the term, provide for removal, reduce the term, or abolish the office.

Common questions

Does a term limit count the years someone served before the limit became law?
Yes, unless the statute says otherwise. The opinion concluded that counting pre-enactment service to decide future eligibility is not a retroactive application, because a term limit measures a continuing status, not a single completed act.

Why was this not considered a retroactive law?
Because a law is not retroactive merely because some of the requirements that make up a present status were met before the law passed. The member's earlier terms were facts about his ongoing status as a board member, and the statute was applied to his eligibility going forward, not to reopen a past appointment.

Could the member have kept his seat if the statute had a grandfather clause?
Possibly, but article 4542a-1 had none. The opinion contrasted it with the Twenty-Second Amendment to the U.S. Constitution, which limited the President to two terms but expressly exempted whoever held the office when the amendment was proposed. Without a similar carve-out, the Pharmacy Act's two-term cap applied to a sitting member.

Background and statutory framework

The question turned on section 10(c) of article 4542a-1, V.T.C.S., the Texas Pharmacy Act, added in 1981: "A member of the board may not serve more than two consecutive full terms. The completion of the unexpired portion of a full term does not constitute a full term for purposes of this section." The member had served full terms starting in 1973, 1979, and 1985.

Texas law presumes a statute operates prospectively unless it is expressly made retrospective, and a statute is retrospective if it changes the legal consequences of acts completed before its effective date. The Attorney General's answer rested on the distinction between reaching back to change a completed act and simply looking at a person's present, continuing status. The opinion drew on Perry v. O'Farrell, 212 P.2d 848 (Colo. 1949), where a court held that a law is not retroactive if it applies to persons who presently possess a continuing status, even though some or all of the requirements for that status were fulfilled before the law passed, quoting People ex rel. Albright v. Board of Trustees, 82 P.2d 765 (Colo. 1938). It also relied on Anders v. County Council for Richland County, 325 S.E.2d 538 (S.C. 1985), which held that applying a new "serve at the pleasure" rule to a sitting public employee was not retroactive, and which described the legislature's broad power over public offices, citing Wright v. City of Florence, 93 S.E.2d 215 (S.C. 1956). On the point that upsetting settled expectations does not by itself make a statute unlawful, the opinion cited Long Island Oil Products Co. v. Local 553 Pension Fund, 775 F.2d 24 (2d Cir. 1985). Because a board seat is a public office rather than vested property, the opinion concluded the term-limit count could include the member's pre-1981 service.

Citations

Statutes:

• Tex. Rev. Civ. Stat. art. 4542a-1, § 10(c) (Texas Pharmacy Act; two-consecutive-full-terms limit on board members)
• U.S. Const. amend. XXII (presidential two-term limit; grandfather clause for the sitting President)

Cases:

• Perry v. O'Farrell, 212 P.2d 848 (Colo. 1949) (a law applied to a continuing status is not retroactive)
• People ex rel. Albright v. Board of Trustees, 82 P.2d 765 (Colo. 1938) (quoted for the continuing-status rule)
• Anders v. County Council for Richland County, 325 S.E.2d 538 (S.C. 1985) (applying a new tenure rule to a sitting officer is not retroactive)
• Wright v. City of Florence, 93 S.E.2d 215 (S.C. 1956) (legislative control over public offices)
• Long Island Oil Products Co. v. Local 553 Pension Fund, 775 F.2d 24 (2d Cir. 1985) (upsetting settled expectations does not alone make a statute unlawful)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-1233
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1990/jm1233.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative. A few citations were too degraded in the scan to read fully and are marked [illegible].

October 15, 1990

Mr. Fred S. Brinkley, Jr., R.Ph.
Executive Director/Secretary
Texas State Board of Pharmacy
8505 Cross Park Drive, Suite 110
Austin, Texas 78754-4594

Opinion No. JM-1233

Re: Application of a provision in article 4542a-1, V.T.C.S., the Texas Pharmacy Act, limiting the eligibility of board members to two terms (RQ-2129)

Dear Mr. Brinkley:

You have requested our opinion regarding the eligibility of a member of the Texas State Board of Pharmacy to serve another term.

You explain that a particular individual was appointed to a full term on the Board of Pharmacy in 1973 and reappointed in 1979. In 1981, the legislature enacted the following provision as part of amendments to the Texas Pharmacy Act:

(c) A member of the board may not serve more than two consecutive full terms. The completion of the unexpired portion of a full term does not constitute a full term for purposes of this section.

V.T.C.S. art. 4542a-1, § 10(c). The member in question was reappointed to the board in 1985. You suggest that he is eligible to be reappointed in 1991, because the 1981-85 period constitutes "completion of the unexpired portion of a full term," and the appointments in 1985 and 1991 should be construed as the beginning dates of his allotted full terms. You contend that to consider the member's prior service at the time the statute was amended in 1981 would constitute a retroactive application of the statute.

It is certainly the settled rule that "a statute is presumed to be prospective in its operation unless expressly made retrospective." Texas Dep't of Public Safety v. Sefcik, [illegible] S.W.2d 239, 241 (Tex. App.—San Antonio, no writ). Furthermore, a statute is retrospective if it "changes the consequences of acts completed before its effective date." [case name illegible], 568 F. Supp. 253, 255 (D.N.H. 1983). Moreover, even a statute that is retroactively applied is not unlawful solely because it upsets otherwise settled expectations. Long Island Oil Products Co. v. Local 553 Pension Fund, 775 F.2d 24, 27 (2d Cir. 1985).

In Perry v. O'Farrell, 212 P.2d 848 (Colo. 1949), a state constitutional amendment imposed a requirement that five additional points be added to the final scores of veterans who sat for state civil service examinations. A non-veteran who had taken the examination prior to the amendment brought suit, claiming that the addition of five points to the scores of veterans would amount to a retroactive application of the amendment. The court declared:

An act is not retroactive if it applies to persons who presently possess a continuing status even though a part or all of the requirements to constitute it were fulfilled prior to passage of the act or amendments thereto.

Id. at 852 (quoting People ex rel. Albright v. Board of Trustees, 82 P.2d 765, 771 (Colo. 1938)). Analogously, in the situation you present, most of the member's "requirements . . . were fulfilled prior to passage of the act." This fact alone does not mean that the statute is retroactive if his prior service is considered in determining his future eligibility.

Likewise, Anders v. County Council for Richland County, 325 S.E.2d 538 (S.C. 1985), considered the status of an individual who had been hired as a chief investigator for a solicitor under a statute which provided a means for challenging employment terminations by an elected official. Subsequently, a statute was enacted which declared that employees of a solicitor serve at his pleasure. The investigator brought suit, contending that application of the "termination at will" statute to his situation would give that law retroactive effect. The court concluded that this was not a case of retroactive application:

Public officers are created for the benefit of the commonwealth, incumbents have no contract or property rights in them, and, unless it be otherwise provided by the Constitution, they are subject entirely to legislative control. Hence, subject to the Constitution, the General Assembly may fix the term, provide for removal, abolish the office, reduce the term, and in every respect control the existence, powers, emoluments, and tenure of public officers.

Id. at 539 (citing Wright v. City of Florence, 93 S.E.2d 215, 220 (S.C. 1956)).

In Open Records Decision No. 358 (1983), it was argued that a change in the status of certain property tax information from "open" to "closed" applied only to information collected after the effective date of the statute. The opinion stated:

The Open Records Act vests no right in anyone to have previously-disclosable information remain disclosable notwithstanding an intervening determination by the legislature that it should be withheld from public inspection. . . . To be vested, a right must be something more than an expectation of the continuance of an existing law. It must have become an entitlement to the present or future enjoyment of property or the enforcement of a demand, or to a legal exemption from demands.

Id. at 3.

In the situation you pose, the member had no vested right to his position on the Pharmacy Board. As the South Carolina court noted, the legislature could have even reduced his present term of service or abolished the office entirely. See Attorney General Opinions JM-235 (1984); H-955 (1977).

Finally, we note that the legislature could have entirely excluded from the application of section 10(c) all members who were serving on the board at the time the statute was amended. This approach was used in Amendment 22 of the United States Constitution, which limited the term of office of the President of the United States to two terms, but specified that it did "not apply to any person holding the office of President when this article was proposed by the Congress." Article 4542a-1, however, contains no such grandfather clause.

We conclude that a member of the State Board of Pharmacy who was appointed in 1973, and reappointed in 1979 and 1985, is not eligible to be reappointed to the board under the terms of section 10(c) of article 4542a-1, V.T.C.S., which limits membership on the board to two full terms.

SUMMARY

A member of the State Board of Pharmacy who was appointed in 1973, and reappointed in 1979 and 1985, is not eligible to be reappointed to the board under the terms of section 10(c) of article 4542a-1, V.T.C.S., which was enacted in 1981 and which limits membership on the board to two full terms.

Very truly yours,

JIM MATTOX
Attorney General of Texas

MARY KELLER
First Assistant Attorney General

LOU MCCREARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RENEA HICKS
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Rick Gilpin
Assistant Attorney General