                     THE        A-ITORNEY                    GENER.\L
                                      OFTEXA~

 roanr    L. aILL
                                  AII~TIN.TISXA~         78711
A--         cI~A%
                                                July 27. 1973


      The Honorable  Herbert C.        McKee,     Chairman             Opinion   No.   H- 71
      Texas Air Control Board
      820 East 53rd Street                                             Re: Quertions      concerning
      Austin, Texas 78751                                                   the application     and
                                                                            constitutionality     of
                                                                            Article    62 52 -9, V. T. C. S.
                                                                           (Acts 1957)
      Dear Mr.      McKee:

           You have requested our opinion concerning    the application  and consti-
      tutionality of Article 6252-9, V. T. C. S. (Acts, 1957) and particularly   $ 3(l)
      thereof relating to standards of conduct as that section may apply to members
      of the Texas Air Control Board.

              Section 2.02 of Article 4477-2 requires      that one of ‘the nine members     be
         a professional    engineer with at leaot ten years experience      in the actual
         practice   of his profession  including work in air control; one shall be a
         licensed physician currently      engaged in general practice     with experience
         in the field of industrial medicine;     one shall be engaged in the management
         of a private manufacturing     or industrial concern for at least ten years;
         one shall be experienced     in the field of municipal government;      one shall be
         an agricultural    engineer with at least ten years in his profession;      and the
          remaining four shall be chosen from the general public.          Board   members
          receive no salary but do receive      $25 for each day in attendance    at meetings
         or hearings or on authorized       business of the Board and reimbursement        for
         travel and other necessary      expenses (§ 2.05).

              You were appointed to the Board in 1966 to fill the space allocated
         to the professional engineer with experience  in the air pollution field.

             You have asked that we answer        five   specific   questions,   which   are:




                                                  p.   307
Honorable    Herbert     C. McKee,   page 2       (H-71)




                         Is Section 3(i) of Article
                       “1.                                 6252-9
              (1957 Act) constitutional?

                      “2. Is Section 3(i) of Article   6252-9
              constitutional  as applied to members       of the
              Texas Air Control Board serving pursuant
              to the Texas Clean Air Act (V. A. C. S.,
              Article 4477-5) and proceedings        under which
               these members     were appointed by the Exe-
              cutive and confirmed     by the Senate?

                     “3. Can the present members  of the
              Texas Air Control Board continue to serve
              in this capacity?

                      “4. If the answer to No. 3 is yes, can
              such a Board member avoid a substantial con-
              flict within the intent of the Declaration     of
              Policy contained in Section I of the 1957 Act
              if he disqualifies  himself on any items of
              business pertaining to companies        or other
              entities with which he has significant      busi-
              ness and/or professional     association?

                       “5. In addition to the procedure speci-
               fied in No, 4, is any other action required by
               such a Board, member in order to avoid any
               conflict of interest which would be in violation
               of the 1957 Act or any other applicable   statute?     ”


         Article 6252-9 as enacted in 1957 (Acts 1957, 55th Leg.,         p. 213,
 ch.   100) declared the policy of the state in $1 as follows:

                      “Section 1. It is hereby declared         to be
               the policy of the Legislature       that no officer or
               employee of a state agency,         Member of the
               Legislature    or legislative    employee    should have
               any interest,    financial or otherwise,      direct or
               indirect,   or engage in any business       or trans-
               action or professional      activity or incur any ob-




                                       p.   308
The Honorable   Herbert   C. McKee,     page   3 (H-71)




       ligation of any nature which is in substantial
       conflict with the proper discharge       of his
       duties in the public interest.       To implement
        such policy and to strengthen the faith and
       confidence    of the people of Texas in their
       Government,      there is herein enacted a code
       of ethics setting forth standards of conduct
       to be observed     by state officers   and employ-
        ees in the performance     of their official duties.
        It is in the intent of the Legislature    that this
        code shall serve not only as a guide for official
        conduct of the State’s public eervants but also
        as a basis for diecipline    of those who refuse to
        abide by its terms. ”

    Section 2 contained definitions.     The “Standards of Conduct I’ of
5 3 include 5 3(i), the primary   section giving rise to your inquiries, and
which reads as follows:

            “(i) No officer     or employee of a state
        agency nor any firm,        association,  corporation
        or other business      entity in which he is a mem-
        ber, agent, or officer,       or in which he owns a
        controlling  interest,     shall sell goods or services
        to any person,    firm,     association,  or corporation
        which is licensed by or regulated in any manner
        by the state agency in which such officer or em-
        ployee serves. ”

Section 4 provided that the failure of any officer or employee of a State
agmcy,    etc., to comply with the standards which apply to him “shall
constitute grounds for expulsion,   removal from office,  or discharge,
whichever     is applicable. ”

    In 1971 the 62nd Legislature    attempted to amend Article 6252-9 by
adopting the so-called   1971 Ethics Bill (Acts 1971, 62nd Leg.,        Regular Session,
Ch. 962, p. 2906).   Its statement   of policy   was  the same.    It had, in its $ 4,
standards of conduct,    and had a similar provision      that failure to comply
would constitute grounds for expulsion,        removal from office,     or discharge.
It went further in that it required financial statements of certain State officers



                                        p.   309
The Honorable    Herbert    C. McKee,     page 4 (H-71)




and employees,      called for the creation of a State Ethics C ommirrion,         etc.
However,    the 1971 Act was declared unconstitutional        by the opinioor of this
office in Attorney General’s       Opinion M-1039 (1972) which in part w:; in
answer to questions      from your office.      Having held the 1971 Act unconsti-
tutional,  the opinion looked to the 195’i Act, and particularly       S 3(i), upheld
the constitutionality     of that section,   and stated that whether members      of
the Air Control Board may have dealings with companies             regulated by the
Board “must first be determined           by the employing State agency . . . . ‘I

    Finally,  the 63rd Legislature,       in House Bill No. 1, effective  January
1, 1974, repealed the 1.957 Act and enacted the 1973 Ethics Code.          It
contains the same declaration      of policy.    Pertinent to your questions   is
5 6 which provides   in subsection    (a):

              “This section applies only to an elected or
         appointed officer who is a member of a Board or
         a Commission      having policy direction over a state
         agency,   excluding officers    subject to impeachment
         under Article XIV, $ 2 of the Texas Constitution.
         If such an officer has a personal       or private interest
         in any measure,     proposal,   or decision pending
         before the Board or Commission,           he shall publicly
         disclose   the fact to the Board or Commission         in a
         meeting called and held in compliance         with the
         Open Meetings Law (Art         6252-17,    Vernon’s Texas
         Civil Statutes) and shall not vote or otherwise         par-
         ticipate in the decision.     The disclosure     shall be
         entered in the minutes of the meeting. ”

    The remaining  subsections  of 5 6 contain        definitions and provisions    for
removal in the event the required disclosure          is not made.

    Section 8 of the 1973 Bill cont.ains its “standards of conduct”          which are
fewer in number than in either the 1957 or 1971 Acts.      Pertinent        to your
inquiry are subsections   b, c and e which are as follows:

             “(b) No state officer or state employee   should
         accept employment    or engage in any business or




                                          p.   310
The Honorable   Herbert    C. McKee,    page 5   (H-71)




       professional    activity which he might r,earonably
       expect would require or induce him to disclose
       confidential   information   acquired by reason of his
       official position.

             ‘l(c) No state officer or state employee     should
        accept other employment      or compensation    which
        could reasonably    be expected to impair his indepen-
        dence of judgment in the performance       of his official
        duties.

              ‘l(e) No state officer or state employee    should
        intentionally   or knowingly solicit,  accept,  or agree
        to accept any benefit for having exercised      his
        official powers or performed      his official duties
        in favor of another. ‘I

No penalty   is provided   in the 1973 Act for violation   of the standards   of conduct.

     The authority of the Legislature       of the State of Texas is plenary.
Government     Services     Insurance Underwriters      v. Jones, 368 S. W. 2d 560
(Tex. 1963).     It may enact any law which is not prohibited       either by the
Constitution   of the State or of the United States.       Shepherd v. San Jacinto
Junior College District,        363 S. W. 2d 742 (Tex. 1962); Oser v. Cullen, 435
S. W. 2d 896 (Tex. Civ. App.,       Houston, 1969).    Undoubtedly it has the power
to determine    the public policy of the State and to set standards of conduct
for governmental      officials   so long as those standards do not inhibit the
performance     of any constitutional     duties.  As we said in Attorney General
Opinion H-15(1973) dealing with House Bill 1 of the 63rd Legislature          as
originally   proposed:

             “In setting standards with which all persons
        entrusted with public responsibility      must comply,
        the Legislature     does not encroach upon the consti-
        tutional prerogatives     of the other branches of the
        government;     it acts in their aid, as well as its
        own, to promote public confidence       in the integrity
        of all branches of the government.




                                        p. 311
The Honorable Herbert C. McKee,           page 6 (H-71)




               “So long as the Legislature does not interfere
           with the discharge by the other branches of their
           constitutional   duties no constitutional  problem
           reaultr.    State Board of Insurance v. Betts, supra
           [ 308 S. W. 2d 846 (Tex. 1958)l.      Requiring ethical
           deportment     uniformly  required of all other public
           servants can be no unwarranted burden. Nor can
           requiring disclosure     of relevant financial matters
           be condemned out of hand.        And, it has always been
           a legislative   function to define crimes and set punish-
           ments. ” (p. 65)

     Neither the 1957 nor the 1973 ethics law purports to deal with qualifications
for office.     It is not unusual for acts creating regulatory          boards to require
as a qualification      for board membership,       qualifications    which potentially
involve conflicts of interest.        For instance,    the Texas Cosmetology Com-
mission (Article       734c, Vernon’s    Texas Penal Code); the State Board of Barber
Examiners      (Article    734a, § 26, Vernon’s     Texas Penal Code); the Texas Optom-
etry Board (Article 4552-2. 01, Vernon’s           Texas Civil Statutes) and numerable
others.     Potential conflicts    of interest do not disqualify persons         from member-
 ship.   See our Letter Advisory        No.  13 (1973)  with   reference    to the  membership
of tenants as commissioners          of a housing authority.

     Our answers      to your specific   questions    therefore   are as follows:

     (1)   Sec. 3(i) of Art. 6252-9,  the 1957 Act, is constitutional        as a
 proper    legislative regulation of the conduct of public officers.

      (2) Since 5 3(i) of Article 6252-9 governs the conduct of officials
 after their appointment,it     does not conflict in any way with statutes
 determining   the qualifications    of those to be appointed such as Article
 4477-5,   Vernon’s   Texas Civil Statutes, prescribing      the qualifications
 of members    of the Texas Air Control Board.

     (3) The present members     of the Texas Air Control Board can continue
 to serve in that capacity unless it is demonstrated  that they have exceeded
 the proper bounds prescribed    by Article 6252-9 in any of its versions  or
 any other statute or comtion law rule governing the proper conduct of
 public officers.  Although the 1957 Act said that violation of its standards




                                           p.   312
The Honorable    Herbert   C. McKee,    page 7     (H-71)




of conduct would constitute grounds for removal from office, nevertheless
it provided no machinery     for removal.   Removal would have to be in accord-
ance u ith Article 15 of the Constitution, “Impeachment, ” and Tit;< 100 oi
Vernon’s   Texas Civil Statutes entitled “Officers - Removal Of.”

     House Bill 1 of the 63rd Legislature,  which will be effective on January 1,
1974, provides   for sanctions only in the event an officer fails to publicly
disclose  a personal  or private interest and provides   no sanctions for failing
to a~bide by the standards of conduct.

    Our answer to your third question therefore    is that the members  of the
Texas Air C ontrol Board, whatever the circumstances        are, may continue
to serve in their present capacities until their terms expire, they retire,
or they are removed in some statutory manner.

     In answer to your fourth and fifth questions,      we do not believe that the
standards of conduct set out in the 1957 Act can be totally satisfied merely
by a board member disqualifying          himself on items of business “pertaining
to companies    or other entities with which he has significant business and/or
professional   association.”      For instance,   and despite the liberalization  of
5 3(i) by Attorney General Opinion M-1069, where an officer of a state agency
is at the same time an officer,        agent, or member of or owns a controlling
interest m another business        entity, under the 1957 Act he and such business
entity are prohibited     from selling goods or services     to another person,   firm
or corporation    licensed    or regulated by the agency.

      We underst.and,    for example that your request for our opinion was prompted
in part by adverse criticism       growing out of a contract between a corporation
subject to the jurisdiction     of the Texas Air Control Board and Southwest
Research     Institute, of which you are a director.       On its face, such a contract
wouI,d not comport with the standards of conduct set out in $ 3(i) of the 1757
.4Cl.    This IS not to say, however,     that such fact automatically     presents a conflict   o
interest contrary to the public policy pronounced          by the Legislature    and pro-
habited by the Act.      Nor do we determine      that it should result in removal from
off ice.   As Attorney General Opinion M-1039 held there may be circumstances
under which a literal interpretation       of 5 3(i) would defeat the legislative    intent
and that the section would not be given such an application.           In our opinion the
finding of these facts in any given case and the application of-the law to
them to determine       whether there is such a conflict of interests      as to warrant




                                        p.   313
The Honorable Herbert C. McKee,          page 8         (H-71)




action are matters for those charged with enforcement      of the ethics legirlation,i.   e.,
the heads of agencies and district attorneys in the first instance a&Idthe Legis-
lature or the courts if removal from office is to be sought.     It wo.11” be incol.
sistent with the constitutionally   guaranteed rights were we to make those
determinations   in the process   of writing opinions.

    Under the new Ethics law which becomes     effective  on January 1, 1974, the
propriety of such a contract would depend on whether or not it might reason-
ably be expected to require or induce you to disclose    confidential   information
acquired by reason of your official position or would be reasonably       expected
to impair your independence   of judgment in the perf0rmanc.e     of your official
duties or was a benefit conferred   for your having exercised     your official
powers or duties in favor of another.

                             SUMMARY

             Article 6252-9 as enacted in 1957 and as later
        amended does not govern the qualification     of persons
        for office.   Members    of the Texas Air Control Board
        are qualified for office if they meet the requirements
        of Article 4477-5,    Vernon’s  Texas Civil Statutes.
        Their conduct in office is’to be governed,    until January
        1, 1974, in part, by Article 6252-9,    and thereafter   by
        applicable   portions of the 1973 Ethics Bill, and they
        may be subject to removal under appropriate       pro-
         cedures in the event they violate the provisions    of that
        Article.

                                             Very truly      yours,
                                         A




APPROVED:
    n
                                      u      Attorney      General    of Texas




                        irst Assistant




 DAVID M. KENDALL,         Chairman          p.   314
 Opinion Committee
