Could a Texas State Board of Public Accountancy member be reappointed after serving less than six years and then holding over after the term expired?

Texas AG Opinion JM-720: Reappointing an Accountancy Board Member

Plain-English summary

The executive director of the Texas State Board of Public Accountancy asked whether a board member was barred from reappointment by a law requiring a two-year gap after six consecutive years of service.

The member had been appointed on May 12, 1981 to a term ending January 31, 1987, so he served less than six years during the stated term. The Attorney General concluded that section 4(d) did not make him ineligible when the term expired.

After January 31, the member continued serving under article XVI, section 17 of the Texas Constitution, which required an officer to perform the office's duties until a successor qualified. The opinion concluded that this holdover period did not count toward the six consecutive years in section 4(d).

The statutory gap was measured between the end of one six-year term and the beginning of another. Treating holdover service as part of the six-year limit would also create inconsistent results depending on how quickly the governor acted on a reappointment. The opinion therefore treated the member as eligible for a new term beginning February 1, 1987.

Currency note

This opinion was issued in 1987. Subsequent statutory amendments, court decisions, or later AG 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.

Common questions

Did serving from May 1981 through January 1987 trigger the six-year bar?

No. That period was less than six consecutive years, so section 4(d) did not bar immediate reappointment when the term expired.

Did the member stay in office after the term ended?

Yes. The Texas Constitution required the member to continue performing the office's duties until a successor qualified.

Did holdover service count toward the six-year term limit?

No. The opinion concluded that the statute referred to service in a six-year appointed term, not time spent occupying a legally vacant office in a holdover capacity.

Why did the opinion exclude holdover time?

The statute measured its two-year waiting period from the end of one term to the start of another. Excluding holdover time also prevented delayed appointment action from changing one member's eligibility compared with another's.

Background and statutory framework

Article 41a-1 set six-year terms for Board of Public Accountancy members and barred reappointment for two years after six consecutive years of service. The opinion read the two provisions together and in light of earlier transition terms that could have produced six years across multiple shorter appointments.

Article XVI, section 17 of the Texas Constitution prevented a break in public service by requiring officers to remain until successors qualified. That rule maintained continuity but did not extend the legal term itself.

Citations and references

Statutory authorities:

• Article 41a-1, sections 4(a) and 4(d), V.T.C.S. (board terms and reappointment restriction)
• Texas Constitution article XVI, section 17 (holdover service)

Cases:

• Underwood v. Childress Independent School District, 149 S.W. 773, 774 (Tex. Civ. App.-Amarillo 1912, writ dism'd)
• State v. Catlin, 19 S.W. 302 (Tex. 1892)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-0720
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1987/jm0720.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

THE ATTORNEY GENERAL
OF TEXAS

June 5, 1987

Mr. Bob E. Bradley
Executive Director
Texas State Board of Public Accountancy
1033 La Posada, Suite 340
Austin, Texas 78752

Opinion No. JM-720

Re: Whether section 4(d) of article 41a-1, V.T.C.S., makes a member of the State Board of Public Accountancy ineligible for reappointment

Dear Mr. Bradley:

You ask whether a member of the Board of Public Accountancy is barred from reappointment by the following provision of The Public Accountancy Act of 1979:

A board member who has served as a member for six consecutive years shall not be eligible for reappointment until two years shall have elapsed between the end of the term of his last prior appointment and the beginning of the term of a new appointment.

V.T.C.S. art. 41a-1, § 4(d). See Attorney General Opinion C-171 (1963). The term of office of a board member is six years. V.T.C.S. art. 41a-1, § 4(a).

The board member you inquire about was appointed by the governor to the Board of Public Accountancy on May 12, 1981, to a term ending on January 31, 1987. Thus, he had served as a board member for less than six consecutive years when his term came to an end on January 31, 1987. Section 4(d) of article 41a-1, V.T.C.S., did not therefore render him ineligible for reappointment upon the expiration of his term.

The board member's term has already ended, and he has continued to serve in a holdover capacity as required by article XVI, section 17, of the Texas Constitution. We will consider whether this service will affect his eligibility for reappointment. Article XVI, section 17, of the Texas Constitution provides as follows:

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. See also V.T.C.S. art. 41a-1, § 4(a) (each board member shall continue until a successor is appointed). The purpose of section 17 is "to prevent a break in the public service and to insure continuity by requiring all officers, after their respective terms of office had expired" to continue to serve until their successors had qualified. Underwood v. Childress Independent School District, 149 S.W. 773, 774 (Tex. Civ. App.-Amarillo 1912, writ dism'd). While the officer is holding over, there is a vacancy in office which may be filled by the appropriate authority. State v. Catlin, 19 S.W. 302 (Tex. 1892).

In our opinion, the "six consecutive years" in article 41a-1, section 4(d), must be served in a six year term. The gap of two years required between six year terms served by one person is measured from the end of one term to the beginning of another, suggesting that the legislature had in mind a six year term, and not six years served partially as an officeholder and partially as the holdover occupant of a legally vacant office. Moreover, the prohibition in section 4(d) was adopted only two years after board members' terms were lengthened from two to six years, with a transition period requiring two or four year terms for some board members. Acts 1961, 57th Leg., ch. 289, § 3, at 608, 609; Acts 1959, 56th Leg., ch. 493, § 1, at 1082. Thus, the legislature may have used the language "six consecutive years" instead of "a six year term" to include board members who had served six years in two or three terms. Service by the board member after January 31, 1987, in a holdover capacity will not be considered in determining whether he may be reappointed to the board.

If the board member is reappointed, he will hold office for a term beginning on February 1, 1987, and ending on January 31, 1993. His tenure of office during the second term would be six years, whether he was reappointed on February 1, 1987, or after May 12, 1987 following service in a holdover capacity. Our conclusion that the board member's service in a holdover capacity does not contribute to his "six consecutive years" service provides for consistent treatment of board members. Those whose reappointment is delayed through the governor's inaction will be treated consistently with those who are reappointed upon the expiration of their terms. Our construction thus reaches a fair result without undermining the purposes of section 4(d) of article 41a-1, V.T.C.S.

SUMMARY

Section 4(d) of article 41a-1, V.T.C.S., The Public Accountancy Act of 1979, applies to board members who have served a full six year term and bars them from reappointment to the board until two years have elapsed from the end of that term.

Very truly yours,

JIM MATTOX
Attorney General of Texas

JACK HIGHTOWER
First Assistant Attorney General

MARY KELLER
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by Susan L. Garrison
Assistant Attorney General