THE ATTORNEY GENERAL
OF 9?ExKAs
AUWIXN. TRXAH W37'11
March 1, 1973
Honorable David Finney Opinion No. II-15
Chairman, State Affairs Committee
House of Representatives Rc: Questions concerning
Austin, Texas 78711 constitutionality of
portions of H. B. No. 1,
a Bill regulating the
activities of certain
State officers and State
employees, etc.
Dear Representative Finney:
At the direction of the State Affairs Committee of the House
of Representatives you have furnished us with a copy of Committee
Amendment No. 1 to II.B. 1, often referred to as "The Ethics Bill",
with the request that we examine its provisions, generally, for
constitutional questions and, particularly, with reference to
several specific questions you have asked.
The Bill declares it to be the policy of this State that no
legislator, elected or appointed state officer, or state employee
"shall have any interest, financial or otherwise! direct or indirect,
or engage in any business transaction or professional activity or
incur any obligation of any nature, which is in substantial conflict
with the proper discharge of his duties to the public interest," and
is designed to implement that policy. Its purpose is "to strengthen
the faith and confidence of the people of Texas in their state gov-
ernment" by assuring that public business is being honestly and
ethically conducted, a legitimate reason for the exercise of the
police power.
Legislative .efforts in that direction, however, must comport
with the State and Federal Constitutions. To be valid, a law such
as this must not violate the separation of powers principle; it
must be reasonable and fair in its application in order to satisfy
due process, privacy and equal protection righte; its penal provi-
sions must not be vague; and it must not otherwise conflict with
p. 63
. I
Honorable David Finney, page 2 (H-15)
constitutional provisions.
A separate right of privacy has recently been given formal
recognition in Texas, described as the richt to be free from (1)
s
suffering, shame or humiliation to a oerson of ordinarv sensibili-
ties. Billings v. Atkinson, 1G Tex.Sup.Ct.Jourl81, J'an.27, 1973.
Also see-~~-v7i------~.S. 93 S.Ct. 705 (1973), the Abor-
tion deci&~~%~----'
A Cali%rnia eth& law requiring financial dis-
closure was invalidated by the Supreme Court of that State because
it infringed too greatly upon such rights. ---City-.-----------
of Carmel-by-the-
-----.
Sea
-.
-.
-._v.
-. _.
_.Young,
__ _ 466 P.2d 225 (Cal., 1970).
It is our opinion that the public does have a legitimate
interest in the current financial condiET?&'and recent financial
history of those of its servants who are in positions of authority
where the temptation to improperly exercise public discretion for
private gain may coincide with the opportunity to do so, and that
public inquiries may be searching in their scope so long as they
are reasonably related to a purpose such as this bill implements.
See Stein v. Hewlett, 289 D.D.2d 409 (Ill., 1972); Cf. New York
Tirne??z,-'ii-;-%lEi%,
tla-71~~aT,-------. 376 U.S. 254, 11 L.Ed.Zd 686, 84--------.
s.Ct.
On January 6, 1972, this office issued Opinion M-1039 declar-
ing House Bill 203 (Acts 1971, 62nd Leg., ch. 962, pp. 2906-12),
amending Article 6252-9, V.T.C.S., (and similar in some respects
to the bill considered here) to be unconstitutional. At that time,
the -dpiIi'ion
Stein case
reiiz~,! had not been decided. Gn.the privacy issue,
principally on the 1970 decision of the Califor-
nia Supreme Court in City-of Carmel-by-the-Sea v.-----
Young,
In the light of the v--v.
.SEzxn?%ss-------
, we nowTGll~V&~f~e Cannel
-----T-
Sea opinion overbalanced the scales in favor of nrivate
aii?i
that a different shift in the balance will bk found by-the.
Texas Supreme Court and the United States Supreme Court when such
questions reach them. If certain corrections are made, it is our
opinion that the Bill could meet all the constitutional tests and,
if enacted, be held valid.
I. zsaration of Powers Generally.
------------------.------
The separation of governmental powers found in Article 2,
p. 64
. .
Honorable David Finney, page 3 (H-15)
Sec. 1 of the Constitution of Texas is designed to protect freedom
and to prevent excesses. It was not intended to make effective
action impossible, and a constitutional problem arises only when
one branch of the government interferes with the functioning of
another branch in a field constitutionally committed to it. -m-e-.
State
Board of Insurance
--.--.--.-
--.. v.
---------- Bet:?., 308 S.W.Zd 846 (Tex. 1958).
In determining whether an exercise of power by one branch is
an unauthorized invasion of the jurisdiction of another, the con-
stitutional relationship of the various departments must be con-
sidered. The authority of the State Legislature is plenary, limi-
ted only by express or implied restrictions contained in or neces-
sarily arising from the Constitution itself. Government
--w-m Services
-----.
Insurance
----- Underwriters
------ v. Jones, 368 S.W.Zd 5667Tex. I%Jl. The
exercise%! sovernmen~>ii~~~itv over the svstem established for
the administration of oublic affairs throuahoirtthe state is a
legislative matter [Perkins v,>ate, 367 S.W.2d 140 (Tex. 1463)1,
as is the declaratioii?Z-EiZlic policy.
The proposed act would apply alike to employees and officers
of the state, with certain exceptions mentioned hereafter. It has
three separate spheres of operation: (1)it requires financial dis-
closures; (2)it establishes directory standards of conduct and
creates The State Ethics Commission to investigate reported devia-
tions from those standards: and (3)it defines certain types of
conduct as crimes subject to criminal penalties. We do not think
the proposed act would unconstitutionally burden the executive or
judicial departments in its general application.
In setting standards with which all persons entrusted with
public responsibility must comply, the Legislature does not en-
croach upon the constitutional prerogatives of the other branches
of the government; it acts in their aid, as well as its own, to
promote public confidence in the integrity of all branches of the
government.
So long as the Legislature does not interfere with the dis-
charge by the other branches of their constitutional duties, no
constitutional problem results. State Board of Insurance v.
Betts, supra. Requiring ethical iiiii?~~e~~~~ed of
~~l-&ther public servants can be no-unwarranted burd&. -Nor can
requiring disclosure of relevant financial matters be condemned
out of hand. And, it has always been a legislative function to
define crimes and set punishments.
p. 65
.
Bonorable David'Finney, page 4 (H-15)
The Bill does not purport to vary the constitutional quali-
fication for any office or position or to provide for the removal
of officers or employees who fail to meet its standards, though
a failure to comply may have other serious consequences. In the
abstract, it creates no impediment to the proper functioning of
any department of government; it does not on its face and, so far
as we can see, will not in its operation, violate the separation
of powers clause.
II. Application
- to Judges
_-_-----___---_ _-.
The Bill does not, in our opinion, conflict with Article 5,
Section l-a of the Constitution which creates the Judicial Quali-
fications Commission. Primarily, that Section establishes a re-
tirement system for judges, and provides for censure, involuntary
retirement or removal from office for certain types of wilful or
persistent conduct, or for disability. It does not define any
conduct as criminal. Nor does it provide any punishment.
The Constitutional Section contains no provision for disclo-
sure of relevant information to the public. To the contrary, papers
filed with the Judicial Qualifications Commission and its proceed-
ings are required to be held in confidence. Section l-a of Article
5 of the Constitution cannot be understood as withdrawing from the
Legislature all power to regulate the conduct of judges. If that
were the case, penal laws applying to the conduct of judicial offi-
cers would be void as to them (for example, see Articles 159, 160,
184, 185, 196, and 197, Vernon's Texas Penal Code); and the Section
would violate the Equal Protection provision of the Federal Con-
stitution, inasmuch as it would insulate judges from the criminal
sanctions to which other similarly situated persons are subject,
and would seriously impair the system of checks and balances as
applied to the limitation of judicial power. Cf. Ku_echlerv. Wright,
40 Tex. 600 (1874); --
Ferguson v. Maddox, 263 S.W. 88% -(r&%?~~~~~ --
m-m-v.
Subsection (13) of Section l-a of Article 5 expressly provides
that the Section shall not be exclusive in its operation. ExaG.
v. State
_-___.-v.' 457 S.W.Zd 72 (Tex.Civ.App., Eastland, 1970, writ reE
n.r.e.7.
Parenthetically, we note that Section 2(2) (B) of the Bill,
if read literally, would make its provisions applicable to elected
judges but not to judges appointed to elective positions, as, for
example, to fill an unexpired term. This might pose a "classifica-
tion" problem if left unaltered.
p. 66
Honorable David Finney, page 5 (H-15)
It is our opinion that no conflict exists and that the Legis-
lature may make the provisions of the Bill applicable to Judges.
III. The Disclosure Provisions
--_------- -------.
The disclosure provisions of Section 4 of the Bill have "clas-
sification" problems which, if left uncorrected, would also affect
its constitutionality, we believe.
The Texas Supreme Court has reiterated the strong presumption
that the Legislature understands and correctly appreciates the
needs of its own people, that its laws are directed to problems
made manifest by experience, and that its discriminations are
based on adequate grounds. It is not the function of the Courts
to judge the wisdom of a legislative enactment. The necessity or
reasonableness of particular regulations imposed under the police
power is a matter addressed to the legislative department whose
determination in the exercise of a sound discretion is conclusive
upon the Courts. Legislative enactments will not be held uncon-
stitutional and invalid unless it is absolutely necessary to so
hold. -----_-
Texas State Board
-- of Barber Examiners v: Beaumont-Barber
454-S.W.Zd-7987~~~~~~--However;-l~~~l;iiive
sometimes constitute improper exercises of police
power and, when they do, they will be declared unconstitutional.
Lone Star Gas Co. v. Kelly, 165 S.W.Zd 446 (Tex., 1942).
-----_.---.------------
To be valid, a classification should be reasonable for the
purpose of the legislation,.should be based upon proper and justi-
fiable distinctions (considering the purpose of the law), should
not be clearly arbitrary, should not be a subterfuge to shield
one class and unduly burden another, and should not be a cover to
oppress a class unlawfully in its administration. ergo v. B orgo,
Tex;.
402 S.W.Zd 143 (Tex. 1966); Buchanan v. State, 480 S.W:ZssaT -+-
Crim. 1972) ; McDonald v. Boa~-~~'-iion-~~~issioners of Chicagg.,
394 U.S. 802,-~~E~-~~a~,-T~~~~~~~-7m-7T~~~~;------------
Faced with a "classification" problem in Reed v. Reed, 404 U.S.
71, 92 S.Ct. 251, 30 L.Ed.Zd 225 (1971), The S~p~~-~~ii% of the
United States, in a unanimous opinion by Chief Justice Burger, said:
"In applying that clause [the Equal Protection
Clause], this Court has consistently recognized
that the Fourteenth Amendment does not deny to
States the power to treat different classes of
persons in different ways . . . . The Equal
p. 67
.
Ronorable David Finney, page 6 (H-15)
Protection Clause of that amendment does
however, deny to States the power to legjs-
late that different treatment be accorded to
persons placed by a statute into different
classes on the basis of criteria wholly un-
related to the objective of that statute. A
classification must be reasonable not arbitrary,
and must rest upon some ground of difference
having a fair and substantial relation to the
object of the legislation, so that all persons
similarly circumstanced shall be treated alike.'
Royster Guano Co.
-.----
~~5~~~-%:Ld. 989, 990,
. . . (404 U.S. at 75-6).
Aside from State officers, the classes recognized by the pro-
posed Bill in its disclosure provisions are (1) employees earning
state salaries of $15,000.00 or more, and (2) those earning less
than that amount. The former must disclose; the latter need not.
The declared purpose of the legislation is to further a policy
that no state officer or employee engage in any transaction or
incur any obligation in substantial conflict with the proper dis-
charge of his duties in the public interest. Certainly there is
reason f?3?aZ?iGi%i~-thatstate employees commanding salaries above
some certain high level will be engaged in the discharge of im-
portant duties in the public interest and ought to be subject
to public examination, but it cannot be said with the same certainty
that those receiving a salary below that figure have a lesser degree
of public responsibility which does not require surveillance. When
the State commands disclosure by some, but not all, and makes a
crime of the failure to disclose, its lines of demarcation must
meet Fourteenth Amendment tests. Further, its invasions of pri-
vacy must not go so far as to leave unbalanced the individual and
public rights.
A classification of those required to disclose, based solely
on salary level, is unreasonable for the purpose of the legislation
proposed. We believe the Supreme Court of Texas would overturn
invasions of the right to privacy if the selection of those whose
privacy is to be invaded is not based upon the relation of their
function and authority vis a vis the proper discharge of public
business and the exercise-d-