May 26, 1995



Ms. Barbara J. Childress

Chair

Texas Commission on Law Enforcement

  Officer Standards and Education

1033 La Posada, Suite 240

Austin, Texas  78752

Letter Opinion No.  95-039



Re:    Whether appointed members of the 

Texas Peace Officers’ Memorial Advisory 

Committee to the Texas Commission on 

Law Enforcement Officer Standards and 

Education continue to serve until replaced 

or reappointed    (ID# 33673)





Dear Ms. Childress:



	You have requested our opinion regarding whether appointed members of the 

Texas Peace Officers’ Memorial Advisory Committee (the “committee”) to the Texas 

Commission on Law Enforcement Officer Standards and Education ( the “commission”) 

whose terms expired on February 1, 1995, “continue to serve until they are replaced or 

reappointed.”  The committee, created by the legislature during its 1989 regular session, 

was established “to fund, design, construct, update, maintain, and manage a Texas peace 

officers’ memorial on the grounds of the Capitol Complex in honor of those Texas peace 

officers who have died in the line of duty.”  Gov’t Code § 415.112.



The committee consists of thirteen regular members:



(1)  three licensed peace officers appointed by the governor;



(2)  a surviving spouse of a Texas peace officer who died in the line 

of duty, appointed by the governor; [and]



(3)  nine individuals, each appointed by a member of the  

commission[.]



Id. § 415.113(1) - (3). 

	Although the committee is denominated “advisory,” id. § 415.112, and although 

certain of its actions require the approval of the State Preservation Board, it is 

nevertheless directed by statute to perform certain duties without assistance, including the 

“raising of funds,” id. § 415.117(2), the selection of “individuals or organizations to 

provide fund-raising services,” id. § 415.117(5), the establishment of “rules and 

procedures for adding names to the memorial,” id. § 415.117(8), and the promulgation of 

“guidelines for conducting advisory-committee-sponsored memorial services at the 

memorial site,” id. § 415.117(9). 



	Section 415.115(a) of the Government Code provides that “[a]ppointed members 

of the advisory committee hold office for two-year terms that expire February 1 of each 

odd-numbered year.”  When a vacancy occurs, the person “who appointed the member 

who has vacated the advisory committee position” is required to “appoint a replacement 

who meets the qualifications of the vacated office.”   Id. § 415.115(a).  A committee 

member is subject to removal if he or she “does not have at the time of appointment the 

qualifications required for appointment . . . or does not maintain during service . . . the 

qualifications required for appointment . . .”  Id. § 415.115(b).



	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.”  The purpose of article XVI, section 17, is “‘to insure, in so far as is 

possible, that there be no cessation in the functions of government.  It continues the 

officer in the office with all the powers incident thereto until his successor has duly 

qualified.’”  Attorney General Opinion JM-55 (1983) at 2 (quoting Attorney General 

Opinion V-760 (1949) [citing, among other authorities, Jones v. City of Jefferson, 1 S.W. 

903 (Tex. 1886)]).  Although a former office holder, prior to the appointment and 

qualification of his successor, continues to serve in a de facto capacity, there is 

nevertheless a “constructive vacancy” in the office “which may be filled at any time by 

the appointing authority.”  Attorney General Opinion JM-720 (1987) at 2 (citing State v. 

Catlin, 19 S.W. 302 (Tex. 1892)).



	We have not been cited to any authority which defines the parameters of the term 

“office” for purposes of article XVI, section 17.  Prior to its amendment in 1993, section 

415.115 provided that committee members held “office at the pleasure of the person 

having the authority to appoint them.”  Gov’t Code § 415.115(a) (Vernon 1990).  When 

a vacancy occurred, “the member of the commission or the public official who appointed 

the [vacating] member” was required to “appoint a replacement who meets the 

qualifications of the vacated office.”  Id.  A committee member’s term expired when the 

committee member was “replaced by the appointing person or when the appointing 

person [was] no longer authorized to appoint a member of the advisory committee.”  Id. 



	As we have indicated above, however, committee members have, since 1993, 

served fixed terms and have been removable only for cause.  Act of May 18, 1993, 73d 

Leg., R.S., ch. 348, § 2, 1993 Tex. Sess. Law Serv. 1558-59.  As we have also noted 

above, the committee performs certain of its duties without the assistance or advice of 

any other individual or entity.  Under the usual test for determining whether a person is 

an “officer” for purposes of article XVI, section 40, Texas Constitution, members of the 

committee now exercise “‘sovereign function[s] of the government . . . largely 

independent of the control of others,’” Aldine Indep. Sch. Dist. v. Standley, 280 S.W.2d 

578, 583 (Tex. 1955) (quoting Dunbar v. Brazoria County, 224 S.W.2d 738, 740-41 

(Tex. Civ. App.--Galveston 1949, writ ref’d)); see also Attorney General Opinion JM-

594 (1986).  Thus, in our opinion,  an appointed  member of the committee has, at least 

since 1993, thereby held an “office.”  We conclude, therefore, that appointed members of 

the committee whose terms have expired continue to serve until they are either replaced 

or reappointed.



S  U  M  M  A  R  Y



	Pursuant to the provisions of article XVI, section 17, of the 

Texas Constitution, appointed members of the Texas Peace 

Officers’ Memorial Advisory Committee to the Texas Commission 

on Law Enforcement Officer Standards and Education continue to 

serve after the expiration of their terms until they are either replaced 

or reappointed.



						Yours very truly,







						Rick Gilpin

						Deputy Chief

						Opinion Committee







 In addition, there are three nonvoting ex officio members: 



	(A)	the director of the Department of Public Safety;



	(B)	the executive director of the State Preservation Board; and



	(C)	the director and librarian of the Texas State Library and Archives 

Commission.



Gov’t Code § 415.113(4).



Prior to the statutory amendments of 1993, see Act of May 18, 1993, 73d Leg., R.S., ch. 348, § 

2, 1993 Tex. Sess. Law Serv. 1558-59, the committee, in addition to the thirteen members appointed by 

the governor, consisted of the attorney general, the director of the Department of Public Safety, and the 

architect of the capitol.  Id. § 415.113(1) - (2), (6) (Vernon 1990).

 With the approval of the State Preservation Board, the committee is authorized to establish “a 

schedule for the design, construction, and dedication of the memorial,” id. § 415.117(3), to implement 

“procedures to solicit designs for the memorial,” id. § 415.117(4), to devise “a selection process and 

choice of the final design,” id., and to review and monitor “the design and construction of the memorial,” 

id. § 415.117(7). With the approval of the State Preservation Board and the Architect of the Capitol, the 

committee is charged with “actual site selection on the grounds of the Capitol Complex.”  Id. 

§ 415.117(1).  And with the approval of the State Preservation Board and the General Services 

Commission, the committee is instructed to “select[] individuals or firms to construct the memorial.”  Id. 

§ 415.117(6). 

 Government Code section 415.114 establishes the following qualifications for membership on 

the committee:

	To be eligible for appointment to the advisory committee, a person must be 

at least 21 years of age and a resident of this state.  Each appointee must be of 

good character and may not have been convicted of a felony or a misdemeanor 

involving moral turpitude.  Each appointee other than the appointee described by 

Section 415.113(2) [that is, the “surviving spouse” position] must meet the 

experience requirements prescribed for commissioners under Section 415.004.  

Appointments to the advisory committee shall be made without regard to the 

race, color, religion, sex, handicap, or national origin of the appointee.  A person 

is not eligible for appointment to the advisory committee if the person is a 

commissioner, an employee of the commission, or a person who is related within 

the second degree by affinity or consanguinity, as determined under Article 

5996h, Revised Statutes, to a member of the commission or commission 

employee.  

 

(footnote continued)







Ms. Barbara J. Childress  -  Page  4