Honorable David Wade, M. D. Opinion No. M-923
Commissioner
Texas Department of Mental Re: Construction of Article
Health and Mental Re- 6252~9a, Vernon’s Civil
tasdation Statutes.
P. 0. Box 12668, Capitol Station
Austin, Texas 78111
Dear Dr. Wade:
Your request for an opinion on the above subject matter read* in
part as follows’:
“Employees of this Department occasionally
rechive offers to serve in other nonelective offices
or positions of honor, trust or profit under this state.
In this situation Section 2 of Article’6252-9a, ‘sets out
the procedure to be followed to obtain a finding that
the requirements of Section 1 of this Act have been ful-
filled.
“However, when the sequence of employment
is reversed, i.e., an individual not employed directly
by the state but rather iS employed for example by a
city or county in a nonelective ‘position seeks’or is of-
fered employment with this Department, a question
arises as to,what procedure should be followed in order
to determine whether this individual may ‘accept the
position with the Department and come within the author-
ization of Section 1 of Article 6252~9a, Vernon’s An-
notated Civil Statutes.
“Wherefore, your opinion and advice with respect
to the following quertton is respectfully requested.
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, ’
Honorable David Wade, M. D., page 2 (M-923)
“Before an individual who holds a nonelective
office or positionof honor, trust or profit under this
state although not enployed directly by the state may
accept an offer of employment with this Department,
what procedure is to be followed in order to determine
whether such proposed dual employment would come
within the authorisation of Section 1 of Article b252-qa,
Vernon’s Annotated Civil Statutes?”
Article 6252~9a, Vernon’s Civil Statutes, provides:
“Sec. 1. A nonelective state officer or employee
may hold other nonelective offices or positions of honor,
trust, or profit under this state or the United States, if
his holding the other offices or positions is of benefit to
,the State of Texas or is required by state or federal law,
and if there Es no conflict between his holding the office
or position and his holding the original office or position
for yhich the officer or employee receives salary or com-
pensation.
“Sec. 2. Before a nonelective state officer or em-
ployee may accept an offer to serve in other nonelective ”
offices or positions ,of honor, trust, or profit, the officer
or employee must obtain from the governing body, or if
there is no governing body, the executive head of the agency,
division, department, or institution with which he is aesociated
or employed, a finding that the requirements of Section 1 of
this Act have been fulfilled. The governing body or executive
head shall make an official record of the finding and of the
compensation to be received by the nonelective officer or em-
plovee from such additional-nonelective office or position of
honor, trust, ‘or ‘profit including specifically salary* bonus,
per diem or other t,ype of compensation.
“Sec. 3. The governing body or executive head shall
promulgate rules and regulations necessary to carry out the
purposes of this Act. ”
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. ’
Honorable David Wade, M. D., page 3 (M-923)
The above statute imptements Section 33 of Article 16, Constitu-
tion of Texas, which prohibits certain dual office holding. However, the
Constitution expressly makes exceptjon for the Legislature to prescribe
restrictions and limitation6 unde,r which non-elective state officers and
employees may hold other non-elective offices or positions of honor, trust,
or profit,under this State or the’Ynitsd States, and provided the other of-
fices’or positions’are.df.bcnLX~~;C~li~~cSCate’of Texas or are required by
State or federal law,,.,and there
,, is no,;conflict with the original office or
position for which he receives sa$a$y or compensation. This Section of the
Constitution provides those ahsolute requirements but does not make pro-
vision as to whether ,the ‘present orprospective employer is to make such
findings. No procedure by the prospective employer covering the second
employment is therein set out.
We must read the Constitution and statute together to determine the
requirements, and we have concluded that while no statutory procedure is ex-
pressly provided for the governing body or executive head to make an official
record of the compensation and finding that the above statutory and constitu-
tionsl requirements have been fulfilled, compliance with such requirements
is equallgbtnding on the prosepctive employer. Consequently, in offering
the employment, it is incumbent on the prospective employer to have sati.s-
fied himself that the holding of the second office or position by the employee
is of benefit to the State of Texas or is required.by state o,r federal law, and
there is no conflict of duties or interest involved in the holding of the two of-
‘fices or positions. In addition; t+e governing body or executive-head with
: which the employee is al’resdy associated must make a finding thatthe re-
qutrements of Section 1 of A.rticle ,62.52,yqa.have been fulfilled. and make an
official recordof the. fisding and of the compensation to be received by the
ncm7eJectiv,e’of$ice$ ~~~r!&ploy&/ from the second position, as provided in
+e&+ +at’tlgil; ii&&i,, The& ts nothing in the law which rwuires’ that the
,findjng &one deparwspt or:‘$ge&cy d’r’poritical subdivision is necessarily
binding on another {ndepdndent~agancy, department or subdivfsfon. ‘,
W~eq an agq;nf.i’nOtic~lictavr’stbtb $ficer. or.ap- i,
pointee who’is e&oyeQ by the stare or ‘one of its, political
subdivisions seeke ,another employment with the state, it is’
necessary that the gpyern$ni body or executive head’of the
.,‘?) “,”_ :
. . . -
Honorable David Wade, M. D., page 4 (M-923)
agency or department make the findings and records re-
quired by Sections 1 and 2 of Article 6252-9a, V. C,‘S. ;
also, it is necessary that the prospective employer offer-
ing the second non-, ectivc office or employment be satis-
fied that the constitutional and statutory requirements for
the holding of the eecond office or position have been ful-
filled; that is, that it is of benefit to the State of Texas or
is required by state or federal law, and there is no con-
flict of duties or intereats involved in the holding of the
two office8 or porritions.
Prepared by Kerns Taylor
Assistant Attorney ‘General
APPROVED:
OPINION COMMITTEE
W. E. Allen, Acting Chairman.
Je,rry Roberts
Sally Phillips
James McCoy
‘Bob Lpttimore
MEADE F. GRIFFW
Staff Legal Assirtant
ALFRED WALKER
Executive As&&ant
NOLA WHITE
Firrt Aesirtant
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