               OFFICE   OF   THE   ATTORNEY     GENERAL    OF   TEXAS
                                      AUSTIN
QDuLDOSyIlll
II--




   Honorable worge 8. Sheppard
   Co-mptroller of Publia AccrouPts
   Aus tin, Texas

   Dear Sir!                            Opinion lo. O-3785
                                        Rar    Employment of
                                               wife by a *tat

             Your letter of July 16, 194
   of thie departanent.uppcs the queatlon
   wife aray both be @aplayed by a ofate
   stated aa follovsr




                                                          Aota of   the 116th




                           lf ~rrlml,   whaher or not th8
         spouse, of such employme 1s also eqleyed     in
         Qp8 (lf th~'%&7.YUtraant¶lOf this St&t6 8lid tka
         name of the Department wheref atloh apowe is
mploged,     together with the naue of such s%ouee;
the hoad of such department, In oddItiou to the
statutory affidavit      now mquired to be attach&
to all p9yrolis.      shall aleo set forth In the
payroli affidavit      that all of hla employees
have made the pequired affidavit         ahd also set
forth the facts of eny said relationship          employ-
leent as dInclosed by said employees1 affidavita,
together vlth the aame of the Department vhere
such spouse Is employed, and If such relatlon-
ship employment does not exist then said affi-
daolt shall ao at.@&, and the head of the de-
partment and the State Comptrolley &all           not ap-
prove for paymetit or Issue warrants or checks
for salaries     to either the husband and wife vhere
both aaId hu&and and wife are employed In the
Departments of this Stata       sub,ject, hovever, to
 the  following provIsIona.      AffIdav1t.s of present
employees shall be xade aud filed vlth the heads
 of department8 of the State within ten days be-
 fore the first     day of each fIscalyear,and
prsons     thereafter   enqaloyedshall file suoh
affidavits     before they bIgIn vork;.all      of saId
afadavits    m&U. be preserved by the head8 of
 departmenta for vhiah approprIatIon8 are made
 for at leaat tuo years after their dates, WhIah
affldavlta     shall be open to puhllo lA8pe~tIon:
 aaid employees affIdavIts       ahall be oonciwIve--
 evIdenee of the right of the head of thedepart-
 mnt to approve the payroll,        and the payroll af-
 fldavltof     theheadof     the departmntshallbe
  eonolunlve evidence to the State Comptroller of
 his rI@t     tp~ issue the varrauta.~     In the evbnt
the Caqptmller     shall bold up S.anah~'af~,~
va~tbyree8oAof         thd80 provI8lonehebhall   :
notlfytha   head oithr   DepP2’t!mert$affeetedof
his aa&laa awl suoh warmnt8 &all .not be:%mued
ords1fveredunt.f.l t&e pzwvialoru@~vr, ~W$A aas-
plied With to the aatI8faatIoA of th+ mate,;
Uoarptroller; aud In the went tha heador~heada
of aald departmmh,    *o e8&oyIag  8aId~~huUi@d'
awl wife, or said huabtmd and wife t&dd&qos,
camotagrao OA vhlob effeoted   emplo*ee :I& $0:
be retaIned In the State's  amploy, thex~the
     Stata Cmptroller    shall Lsme enil dtsl2vcr the
     warrant to the affscted   mployes   who has been
     contlnuouelg employed In the State’s    service Par
     the long%r period of time, and refuse to issue
     and deliver  the warrunt to the other affected
     employee vho has been continuously employed in
     th% State’s  aervlee for a shorter period of ttme
     then th% other affected   relative.   The provi-
     sions hsreia shall apply to dspartmant heads md
     ta%r&sl% or Gmlmlsaiens but nat to the manager
     and~rpatron of the Uoree State Paw.     The word
      Wepartanentl es wad h%reln shall mean those de-
     partments named IA this Act and,th6 So11 Conser-
     vation Board and shall not apply to other agm-
     ales of this State and the employees employed
     thereby.

           “It is further provided that the foregalng
     provIsIor~s restrfctlng eraployment of both hus-
     band and wife shall not apply to on$ p%rsons who
     were employed and receivfng compsaeatlon Prom th%
     Stat% at any tine during the month of January,
      1939.
            ”         ”
              . . . .

           The first  qua&&Ion which arise61 ta vhe$her a person
employed and reoel.vlng oompensatlon froxa one of the state de-
partment% covered in the D%pa~tmental Appropriation Bill,    dur-
ing Jauuaxy, 1939, and~the.r%for% vithln the’provlso   to the rider,
is taltsn out of the provbo by r6amm of the fact that he or
she traasfm-s  to anotheti depart&m&f    ths Govemm%nt. In other
wordn, muat there by oontlhulty   of e%rvlc% rrgm and after Jan-
uary, 1939, in order for the proviso to apply?

           This quastlan,   w% believe, mu%t b% an%v.%kd in tha
n6gatIv6.   There la an entire absence of lamgum@ @idlcating
th6 Leglwlatlve  Intent that contlnutty of .oe~,lde ircpr and after
January, 1939, Is requlalte    to th6 appliaatlox~~~df the proviso.
&xch meager indicationa    as are fvund Ia& the ‘Unguag% used co-
flbot a oontraxy Iatsnt.     For Iwtance,   the ua6 of the volde
*at any time’ durw      January, 1939, Is InoaolpsrtIbl% vith an In-
tent to requl~   even that there be contlnulty     of service through-
out that month.   And the language of the proviso extending the
                                                                        _-




Eonorable George H. Sheppard, paage 4



exenption io persons “evployed and recelr~       compoasat.Zoh frm
the stat0,    Is broader than ‘the scoge of the rider Itself,
which appllee only to C&3partmmts,      a tam sp%clficallp    de-
fined to lkmlude onlg the departments natnod ln the Act and the
so11 Conservation Board.     The use of the team “State’~, tc the
proviso,   Fa direct appoaltion to the term “departmelite” ln th%
rlder itself,   must be doemd to reflect   a de1.iberat.e choice of
terms by th% Legislature,    and au Lntent to %xtend the exeuptlon
to those p%mens avployed by other agenaiea of the stat% in
January, lg39, vho subssgwntly     are employed In the “depart-
ments~ covered by the rider.

           Consequently, we hold that the rld%r does not ~@y
to the vife In the instanae given, nlnce she falls wtthln the
proviso.

           ile alp8 further of the opinion that, since th% wlfela
vlthln the proviso,    and the prohibition   is bLlatera1, the rider
caunot .b% applied to the husband.      To do so would put th% de-
partment haads or the husaSnd and wife to their election 6 to
which should be retatied    In tbe State*% emplv, and this would
be to apply the Aat to the exempted pereon ln violatim of the
term4  of the pvoviso.

                                    Ycmre ve~ry truly

                                ATTGRlWlEY
                                         CERi3RALGB TEXAS


                                        (signed)
                                                   R.f   W. Falrchlld
                                                            Assistant




Attovney     General

A&wad        Bpinlon CamiLLee
by B.W.B.,     0baimm.n
