Untitled Texas Attorney General Opinion ( 1978 )

The Attorney General of Texas
August 2, 1978
JOHN L. HILL
Attorney General
Honorable Jay G. Stanford Opinion No. H-1221
Executive Director
Texas Advisory Commission on Re: Whether service on the
Intergovernmental Relations Texas Advisory Commission on
P. 0. Box 13206 Intergovernmental Relations is
Austin, Texas 78711 creditable under V.T.C.S. article
6228a, section 4H.2.
Dear Mr. Stanford:
You have requested our opinion on whether a member of the Texas
Advisory Commission on Intergovernmental Relations, who had previously
established retirement credit with the Employees Retirement System of
Texas as a member of the Veterans Affairs Commission, can receive credit
under V.T.C.S. article 6228a, section 4H.2. for service in his new capacity.
Under section 4H.2. a member of the Employees Retirement System
may claim credit for
[slervice as a Board member of a statutory Texas
State department, agency, or commission having state-
wide jurisdiction, the employees of which, under
requirements of law, are members of the Employees
Retirement System; provided that such service was not
in a full time salaried position but was subject to
confirmation by the Senate of Texas.
(Emphasis added). The office of the Employees Retirement System of Texas
has taken the position that
board service was not creditable unless the agency
involved exercised some portion of the sovereign
powers of the state of Texas. Section 4(H)(2) of
Article 6228a requires that the agency involved “have
statewide jurisdiction.” An advisory board has no
jurisdiction at all.
p. 4886
Honorable Jay G. Stanford - Page 2 (H-1221)
Thus, the question presented is whether the Texas Advisory Commission on
Intergovernmental Relations has “statewide jurisdiction” within the meaning of
section 4H.2. Assuming that the Employees Retirement System definition of
“statewide jurisdiction” is correct, we conclude that the commission does, in fact,
exercise some portion of the sovereign powers of the State of Texas and therefore
possesses “statewide jurisdiction.”
In Knox v. Johnson, 141 S.W.2d 698 (Tex. Civ. App. - Austin 1940, writ ref’d)
the court considered whether a hospital superintendent qualified as a state officer.
After recognizing that “a position is a public office when it is, created by law, with
duties . . . which involve an exercise of some portion of the sovereign power,” the
court discussed the badges of holding a portion of the sovereign power. && at 700
quoting from Annot., 53 A.L.R. 595 (1928). These badges include, the adminis-
tration of an oath of office, the requirements of a budget report, the imposition of
definite and specific governmental powers and duties in which the state as a whole
is interested. a term of office and comoensation fixed bv law. and a custodial
responsibility for state property and funds. SeemDunbar v: Braioria County, 224
S.W.2d 738 (Tex. Civ. App. - Galveston 1949, writ ref’d).
Clearly the Texas Advisory Commission on Intergovernmental Relations
possesses these same badges of sovereign power. Members of the commission are
required to take an oath of office under V.T.C.S. article 16. The commission is
required to issue an annual public report on its work. V.T.C.S. art. 4413 (32b), S 1.
A term of office and compensation is fixed by law for its members. Id. §§ 7, 8.
The legislature has imposed definite and specific governmental powersand duties
on the commission including the establishment of various reporting and evaluation
systems and the coordination of studies on government activity. & SS 1, 10. Under
section 12 of 4413(32bl, the commission can contract for and expend appropriations
from the State. It is the opinion of this office that the Texas Advisory Commission
on Intergovernmental Relations possesses a portion of the sovereign powers of the
State of Texas and consequently has ‘statewide jurisdiction” within the meaning of
section 4H.2. Thus we conclude that service on the commission is creditable by the
Employees Retirement System of Texas under article 6228a, section 4H.2., V.T.C.S.
SUMMARY
The Texas Advisory Commission on Intergovernmental
Relations has “statewide jurisdiction” as required in article
6228a, section 4H.2., V.T.C.S. Service on the commission is
creditable by the Employees Retirement System of Texas.
Attorney General of Texas
V’
P. 4887
Honorable Jay G. Stanford - Page 3 (H-1221)
APPROVED:
DAVID M. KENDALL, First Assistant
C. ROBERT HEATH, Chairman
Opinion Committee
P. 4888