Untitled Texas Attorney General Opinion ( 1973 )

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TWE ATIY)RNEY GEN’EP~AL
OF-
February 7, 1973
Dr. David Wade, Commirrioner Opinion No. H- 5
Tcur Department of Mental He&h
and Mental Retardation Re: Conrtruction of Article
P. 0. Box 12668, cepitol Station 6252-9a, Vernon’r fear
Au&n, Teur 76711 Civil Statutea.
Dear Dr. Wade:
Your requert for an opinion arkr the following queationr:
“1. Ir AAcl. 6212.9a. V.A. C.S., ltu1 valid?
“2. May State l mployeer or othei individuala who
rocaive sll or part of their compmration either. directly
or indirectly from funda of the State of Texaur and who
are not State officer@, sowe lo memberr of the
governinS bodier of rcbool dirtrictr, cities. towam,
or other local Sovernmontal dirtrictr if l salary la
available for rerviag lo a mombor of ruch Sovemin8
body but the individual olectm sot to receive much
sdary?
‘9. ln the event that Article 6252-9a. V. A. C. S.,
ir no longer valid, what procedure rhould bo uied
to detersnina whetber the Conrtltutional riqulremmtr
for one aoaeloctivo State officrr ta bold usothor aon-
elective office .uador the ltatr or Waited &atom have
boon. ratirfird?l~
Article 625209a, Veraoa’o Teur Civil Statutoo, rr&dr:
g8Section1. A nonelective ltate officer or employee
may hold other noidoctive officer or poritioar of
honor, trust, or profit unde.r thir state or the United
Statw, if hir holding the other officeo or pomitlonr 11
-If-
* .
. .
Dr. David Wade. page 2. (H-S)
of benefit to the State of Texcr or ic required by rtatk
or federal law, and if there ir no conflict between bit
holding the office or porition end hir holding the
origins1 office or porition for which the officer or
employee rcccive8 salary or compenration.
kction 2. Before e nonelective ctete officer
or employee may accept xn officr to cervc in other
nonelective officer or poritionr of honor, truct, or
profit, the officer or employee mutt obtain from the
governing body. or if there lo no governing body,
the executive head of the agency. divirion. department,
or inrtitution with which he ir arrociatcd or employed.
x finding that the requircmcntr of Section 1 of thir
Act have been fulfilled. The governing body or
executive haad rhall m&kc an official record of the
finding and of the compcnrrtion to be received by the
nonelective officer-nor employee from .such ad&tional
nonelective office or porition of honor, truct, or
profit including rpccificxlly cxlxry. bonur. per diem
or other type of compensation.
c
‘Section 3.The governing body or executive
. .
head rhall promulgate ruler end reguletioar a@ccrcary
to carry out the purporcr .of thir Act. ” ’
Thir ltxtute WLS enacted purruant to the 1967 amendment to
Section 33 of Article 16. Conrtitution of Tcur, which provided, ia
part:
‘1. . . it la further provided, until September 1, 1969,
and thereafter only if ruthorired by the LegMature by
gcnerel Lxw under ruch rertrictionr lnd limitetionr lo
the Logirlaturo may prercribc, that x non-•lrctivr
State officer or employee mxy hold other non-•loctive ’
officer or poritionr of honor, trust or profit dndcr thir
State or the United Staten, if the other officer or
poritionr aro of benefit to the State of Tcxar or arc
required by St&to or federal law. and thcro ir no con-
flict with the original office or porition for which
he receiver salary or compencrtion. ‘I
-1g-
__. -.,--- ---~.. ~--
. Dr. David Wade, page 3, (H-5)
.
In 1972. Section 33 was amended to omit this lxnguege which
waa then incorporated in Section 40 of Article 16 without #pacific
reference to legirlative luthoriration. 3n addition, and perhapr
moat important. reference to ‘knployeee’a wee omitted when this
provision was trxnepoeed into Section 40.
Therefore, it is our opinion that Article 6252-9a. Vernon’s
Texas Civil Statuter was repealed insofar a# it applier to l mployrer.
but continuer to control where non-elective State officer* are concerned.
It wu enacted purrrunt to authorization contained in the 1967 amead-
mcnt to Article 16, Section 33. The language of the lmend x nent was
carried forward, in part, but not ~entirely into the new Section 40.
Except A# it relater to pcrronr not claraified aa State officer.. the
tcrma of Article 6252-96 are compatible with the language of Section
40 as amended.
When a statute ie valid ae to o ne lubject coming within tbc
rcopc, but conrtitutionally objectionable le it applier to other rubjectr,
it ir not to be declared unconrtitutional in toto unleer that conclarion
ir incacapable.
‘*The remainder of the statute is not invalid riace
l complete and workxbla law remsine lad the _rpprrxht
purpore of the Legielature will not necce&rrily bo
defeated. *I
Hatten v. City of Hourto 373 S.W.2d 525, 53) (fox. Civ.App., Xouatoa,
1963, error ref. n. r. e. ); 12 Tex. hr. Zd, Coartitutiaabl Law. Sectionr .
47 and 48 p. 392 etleq.
To your second queetion we amwar that in view of the l p ec lfic
luthoriration contained in Section 40 of Article 16. rtate employerr or
other individu~lr who receive all or pert of their compeneation from
fundr of the State of Teur and who are not State officere may lcrve
as mcmbcrr of the governing bodies of the varioue political lubdiviaionr
named in Section 40 provided ruch individuelr “Hall .receive no
ralary for rerviq xe membera of ruch governing bodier, IV
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Dr. David Wade. pcgc 4, (H-5)
We lrwer your third qucrtion that. to the extent that Article
6252-9a. Vcrpon’r Texar Civil Statutes, ic no longer valid, with
reference to pcreonr who are not nonelective state officers, the
affected agcncieo may ucc whatever procedurer they deem necereary
to determine whether a dual employment violates any provision of
the Conrtitution. With regard to nonelective state officera, the
proviaiona of Article 6252.9a continue to be applicable.
-SUMMARY-
The 1972 rmcndmentr to Article 16, Se&ions 33
and 40 of the Conrtitution of Teur invalidxte Article
6252-9r. Vernoda Tcx~r Civil Statutq inrofar am
it applier to pcrronr who are not nonelective mtate
officera, but the provicione of th a tltxtute continue
in effect with reference to thorc permonr who are
nonelective rtatc officerr.
Very truly yourr,
Attorney General of Texas
APPROVE&
M. BARRON
DAVZD M. KENDALL, Chairman
Opinion Committee
-20.