                                     August   6, 1975


The Honorable   Grover  E. Murray                     Opinion   No.   H-   659
President
Texas Tech University    Complex                      Re:    Whether   Regents  of a
P. 0. Box 4349                                        State college    may provide   for
Lubbock,  Texas    79409                              automatic    termination   of employee
                                                      faculty member      who becomes    a
                                                      political  candidate.

Dear   President    Murray:

        You have requested   our opinion concerning   the validity  of a policy          of
the Board of Regents  of Texas Tech University,     which provides:

                   The Board of Regents        does not undertake     to determine
                   whether an employee        or a member     of the faculty of the
                   Institution   shall become a candidate      for,   or shall accept
                   a public office.     In the event, however,      that any member
                   of the faculty or any employee        does become a candidate
                   for,   or does accept,    public office,   such person shall
                   automatically     cease to be a member       of the faculty
                   or an employee,       and his or her connection      with the
                   institution   will be dissolved   immediately.

You have asked whether      this policy may be effectuated         by requiring   a leave
of absence   without pay and termination    of employment          when a faculty member
or, staff employee   becomes    a candidate for and accepts        a public office,   respec-
tively.

        In Broadrick    v. Oklahoma,       413 U.S.     601 (1973), the Court upheld an
Oklahoma   statute which prohibited        classified    employees   from taking part in
a broad range of partisan     political    activities,    including candidacy   for public
office.  Conceding   that the statute     impaired     the First Amendment       rights of
government   employees,     the Court     held such impairment        justified as an attempt
to:




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The Honorable      Grover    E. Murray      - page   2      (H-659)




                   [attract]   greater   numbers     of qualified    people
                   by insuring     their job security,     free from the
                   vicissitudes      of the elective    process,     and by
                   protecting    them from ‘political       extortion’.
                   413 U.S. at 606.

Similar   restrictions     contained    in the Hatch Act,    5 U.S. C. 7324, were upheld
in United StatesCivil      Service   Commission      v. National Association        of Letter
Carriers,    413 U.S.     548 (1973).     The restrictions    on the exercise      of employees’
First Amendment        rights were considered        necessary     to achieve    impartial
execution   of the laws,     to avoid the appearance       of “political   justice, I’ to avoid
the building of a “powerful,        invincible  and perhaps corrupt political          machine, ‘I
and to insure that employment           and advancement      do not depend on political
performance.        413 U.S. 565, 566.

         While these goals may be better satisfied             by the broader  restrictions
involved in Broadrick       and Letter   Carriers,     and although the Oklahoma         statute
upheld in Broadrick       excluded   employees     of institutions   of higher education,      74
Okla. Stat. § 703, we are unable to rule that the instant policy would violate
the Federal    Constitution.     See also Willis     v. City of Ft. Worth,     380 S. W. 2d
814 (Tex.   Civ. App. -- Ft. Worth 1964, writ ref’d ‘n.r. e.).

         Article   16, section    40 of the Texas        Constitution   provides   in part:

                   State employees       . . . shall not be barred from serving
                   as members       of the governing     bodies of school districts,
                   cities,   towns,   or other local governmental       districts;
                   provided,    however,     that such State employees      or other
                   individuals    shall receive     no salary for serving    as members
                   of such governing       bodies.   . . . (emphasis  added).

         While we have held that this provision          was not intended to supersede
the common law prohibition       concerning     incompatible     offices,   Attorney      General
Letter Advisory     No. 54 (1973), we have also held the provision             to constitute
an exception   to the separation    of powers     doctrine   contained    in article     2, section
1 of the Texas Constitution.      Attorney    General     Opinion H-6 (1973).        In our view
this provision   of article 16, section 40 of the Texas Constitution             reflects   the
intent of the people that persons      as a general     matter may simultaneously            be
employed    by the State and serve as members           of the specified    governing      bodies.
It appears to us that a necessary       incident of this authorization       is the right to be




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The Honorable      Grover    E.   Murray    - page    3    (H-659)



a candidate      for such an office.         Accordingly,      we believe   it does violence
to this provision       of the Texas Constitution          for a faculty member       or staff employee
to be routinely      dismissed       or placed on leave without pay upon becoming               a
candidate     for or holder       of one of these local offices,        so long as the office sought
or held is not legally         incompatible     with his employment.          We do not suggest
that an employee        may not be required          to continue the adequate performance            of
his duties,      or that termination       or a forced      leave of absence     may not be imposed
for failure     to devote the time required           for the satisfactory     discharge    of his
responsibilities.         Letter    Advisory    No. 62 (1973).      However,      under article    16,
section 40 there can be no presumption                 that he will neglect his duties; any
actions   taken against        such an employee        must be on the basis of actual inade-
quate performance.            -See Pickering     v. Board of Education,         391 U.S. 563 (1968).

           As applied to candidacy        for or acceptance        of an office other than member-
ship on the governing         bodies of school districts,         cities,   towns,    or other local
governmental       districts,    we believe      the Board’s    policy to be valid.        We have
discovered      no statutory     or constitutional     provision     which would restrict         the
power of the Board to compel a leave of absence                   without pay while campaigning,
or termination       upon acceptance       of such an office.       Section 109. 21 of the Education
Code vests “the government,             control,    and direction      of the policies     of the
university”     in the Board.       In our opinion,      this section authorizes         the Board to
establish    and implement        the instant policy insofar        as it does not conflict        with
any statutory      or constitutional     provision.       See Foley v. Benedict,          55 S. W. 2d
805 (Tex.     Sup. 1932).      In addition,    accepta=       Rand qualification        for an office
which an employee          may not constitutionally        hold simultaneously         with his
employment       at the university      will result in an automatic         surrender       of such
employment.         Attorney    General Letter      Advisory     No. 4 (1973); Attorney         General
Opinion H-155 (1973);         see also Centeno v. Inselmann,              519 S. W. 2d 889 (Tex.
Civ. App. -- San Antonio 1975, no writ).                 In regard     to dual office holding by
collegiate    faculty and staff,      see generally     Attorney      General   Letters      Advisory
Nos. 87 (1974), 55 (1973), 30 (1973), 22 (1973).

        You have also asked if a party office such as County Democratic
Chairman   is a public office within the meaning of the Board’s policy.

           The matter is determined        by the intent of the Board of Regents    at
the time    the rule was promulgated,        and the determination   of that intent is more
properly     made by the Board.




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The Honorable    Grover   E.   Murray    - page   4    (H-659)




                                   SUMMARY

                    The Board of Regents       of Texas Tech University         may
                not compel a faculty member          or staff employee       to take
                a leave of absence without pay or terminate            her or his
                employment     upon candidacy,for      oracceptance       df:a public office
                ogmembership        on the governing    board of a school district,
                city,  town, or other local governmental          district.     While a
                faculty member       or staff employee     must continue the
                adequate   performance       of her or his duties,     any termination
                or compelled     leave of absence     must be a result of actual
                inadequate   performance.

                   The Board of Regents     may compel a faculty member       or
                staff employee    to take a leave of absence without pay while
                campaigning    for any other public office,  and may terminate
                her or his employment      upon acceptance  of such an office.

                                                      Very   truly   yours,




                                                      Attorney   General      of Texas

APPROVED:




DAVID   M.   KENDALL.      First   Assistant




C. ROBERT   HEATH,        Chairman
Opinion Committee

jwb




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