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                   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                    ir no longer valid,  what procedure rhould bo uied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




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    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



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          __.   -.,---       ---~..    ~--
.   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
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     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




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