The Attorney General of Texas
JIM MATTOX Decmber 31, 1985
Attorney General
Supreme Court Suildlng Honorable Carlos 'F.Truan Opinion No. JM-413
P. 0. Box 12548 Chairman
Austin, TX. 78711. 2543 Health Services Slbcomaittee Re: Whether a member of the Texas
5121475-2501
Texas State Senats Board of Human Resources may run
Telex 910/874-1367
Telecooier 512/4750266
P. 0. Box 12068, Capitol Station for a county office without
Austin, Texas 7 3711 resigning the state office
714 Jackson, Suite 700 Dear Senator Truax
Dallas, TX. 752024508
214i7428~44
You ask whetvrr a member of a state agency board must resign that
position to run for a county office. Your question conceros a member
4824 Alberta AVE., Suite 160 of the Texas Boated of Human Resources, which is responsible for
El Paso, TX. 7-5-2793 governing the Texas Department of Human Resources. Hum. Res. Code
915/53334Et 0621.001; 21.003.
1001 Texas. Suite 700 Article XVI, section 65 of the Texas Constitution provides that
Houston, TX. 77002-3111 certain local officers will resign their office if they become
71312255888 candidates for another office under the following circumstances:
if any of the officers named herein shall an&ounce
806 Broadway, Suite 312
Lubbock, TX. 79401-3479
their candidacy, or shall in fact become a caudi-
800/747-5230 date. i:xany General, Special or Primary Election,
for any office of profit or trust under the laws
of this 'Stateor the United States other than the
4309 N. Tenth. Suite B
McAllen, TX. 78501.1885
office then held, at any time when the unexpired
5121582-4547 term of ,theoffice then held shall exceed oue (1)
year, such announcement or such candidacy shall
constitute an automatic resignation of the office
200 Main Plaza, Suite 400
then held, and the vacancy thereby created shall
San Antonio, TX. 782052797
512/2254191
be filla,dpursuant to law in the same manner as
other vxancies for such office are filled.
An Equal OpportunityI This provision applies only to the judges, county officers and other
Affirmative Action Employer local officers euumerated in article XVI, section 65 of the Texas
constitution. SemcClement8 V. Fashing, 457 U.S. 957 (1982); Attorney
General Opinion%~~513 (1982). It is not applicable to members of the
Board of Human Resources.
Members of th board are subject to the following provision:
(a) An officer or employee of the department
may not use his official authority or influence or
permit xhe use of the programs administered by the
p. 1887
Honorable Carlo8 F. Truan - Page 2 (JM-413)
department for tt.epurposes of interfering with or
affecting the results of an election or for any
political purpose:.
(b) An officl!l: or employee of the department
is subject to all applicable federal restrictions
on political actkvities. However, an officer or
employee retains the right to vote as he or she
pleases and may express his or her opinion as a
citizen on all pc~liticalsubjects.
(c) An officer or employee of the department
who violates a provision of this section is
subject to discharge or suspension or other
disciplinary measures authorized by the depart-
ment's rules.
Hum. Res. Code 521.009. S@!c.tion
21.009(a) prohibits an officer of the
department from using official authority or influence to affect the
results of an election. This provision does not as a matter of law
prohibit a board member from running for another public office while
retaining his position on the board. Whether a board member has
violated this provision in (connectionwith an election in which he is
a candidate depends upon l:be surrounding facts. If he does violate
section 21.009(a) he is "subject to discharge or suspension or other
disciplinary measures authorized by the department's rules." Hum.
Res. Code 121.009(c).
Section 21.009(b) of the Human Resources Code .subjects officers
and employees of the depar,tmentto certain provisions of the federal
Hatch Act. Chapter 15 of title 5 of the United States Code restricts
the political activity of state officers and employees covered by the
following definition:
(4) 'State 01:local officer or employee' means
an individual eq:loyed by a State or local agency
whose principal employment is in connection with
an activity which is financed in whole or in part
by loans or grants made by the United States or
Federal agency, hut does not include --
(A) an individual who exercises no functions
in connection with that activity; or
(B) an IadivFdual employed by an educational
or research inst:Lt:ution,
establishment, agency, or
system which is ziupportedin whole or in part by a
State or politic~al subdivision thereof, or by a
recognized religious, philanthropic, or cultural
organization. (Mphasis added).
p. 1888
Honorable Carlo8 F. Truan .-Page 3 (JM-413)
5 U.S.C. §1501(4). The Lndividual's "principal employment" is not
limited to his "princip;%:Lpublic employment." (Emphasis added).
Anderson v. United States~Givil Service Comission, 119 F.Supp. 567
(D. Mont. 1954). When a s':ateofficer or employee holds both a public
and a private job, his "principal employment" is determined by
comparing 'the two employments. Matturri V. United States Civil
Service Conrmission,229 F.2d 435 (3d Cir. 19561, per curlam; Anderson
v. United States Civil Se+ce Comnission, w. For example, where
a state official devoted more time to and earned more monev from his
private law practice than :Eromhis.work for the estate Deoartment of
Public Welfare, his "principal employment" was not in connection with
a federally financed activity. Anderson V. United States Civil
Service Commission, 119 F.Supp. 567 (D.C. Mont. 1954). An officer of
the Newark Housing Authority who received no compensation for his
public employment was principally employed in -his private law
practice. Matturri v. UnJ_ted States Civil Service Commission. 13
F.Supp. 15 (D.N.J. i955)!-7Iff'd 229 F.2d 435 (3d Cir. 1956)-E
curlam.
The Texas Department of Human Resources administers federally
funded welfare programs. llum. Res. Code 522.002. While performing
their duties, board member::are entitled to "per diem as prescribed by
the General Appropriation:3Act." Hum. Res. Code 521.003(g). What
constitutes the board member's "principal employment" requires a
comparison of the public employment as board member with any other
public and private employment this individual may have. ThiS
comparison requires an investigation and evaluation of facts to be
carried out in accordance w:iththe judicially stated standards.
An individual covered by the Hatch Act definition of "state or
local officer or employee" nay not
(1) use his iofficial authority or influence
for the purpose of interfering with or affecting
the result of ~LILelection or a nomination for
office;
(2) directly 131:indirectly coerce, attempt to
coerce, command, or advise a State or local
officer or employee to pay, lend, or contribute
anything of valuazto a party, committee, organiza-
tion, agency, or person for political purposes; or
(3) be a candJdate for elective office.
(Emphasis added),
5 U.S.C. )1502(a). The ~prohibition against being a candidate for
elective office applies to partisan elections. 5 U.S.C. §1503..
County officers in Texas are partisan officers. See Elec. Code
5552.091, 52.092, 172.001, 172.002, 172.029 (effective January 1,
1986);. Elec. Code P56.01, 6.05, 6.05b, 6.05~. 13.02, 13.14 (1925)
(repealed 1985). See alsliElec. Code, Acts 1985, 69th Leg., ch. 211,
p. 1889
Honorable Carlo8 F. Truan - Page 4 (JM-413)
P12, at 1749 (if United S:ates Department of Justice objects to any
provision of new Election Code, the corresponding provision of prior
law is not repealed).
If an individual's "pcincipal employment" is as a member of the
'Texas Board of &man Resources, that person may not retain that
position after becoming a candidate for county office. If a member of
the Board of Human Resources is not principally employed as a member
of that board, he may retain his board membership while he is a
candidate for a county .offlce. Whether a particular individual is
principally employed as a member of the board of Human Resources
involves the investigation of factual matters, which cannot be done in
the opinion process.
SUMMARY
A member of the Texas Board of Human Resources
is not subject to article XVI, section 65 of the
Texas Constituti~on. Section 21.009(b) of the
Human Resources Code subjects officers and
employees of t'le Texas Department of Human
Resources to all applicable federal restrictions
on political activities. Provisions of the
federal Hatch Act found in 5 U.S.C., sections 1501
et seq. restrict the political activity of certain
state officers and employees whose principal
employment is in connection with an activity
financed in whole or part by federal loans and
grants. Such individuals are prohibited by 5
U.S.C., sections 11502and 1503, from running for
partisan political office.
%Jzb
MATTOX
Attorney General of Texas
JACK HIGHTONRR
First Assistant Attorney General
MARY KELLER
Executive Assistant Attorney General
ROBERT GRAY
Special Assistant Attorney General
RICX GILPIN
Chairman, Opinion Committee
Prepared by Susan L. Garrison
Assistant Attorney General
p. 1890