                                 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
