Untitled Texas Attorney General Opinion

.-. 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 V. A. C. S., ir no longer valid, what procedure rhould bo uied to detersnina whetber the Conrtltutional riqulremmtr for one aoaeloctivo State officrr ta bold usothor aon- elective office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 -. . 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.