Honorable David Wade, M. D.           Opinion No.   M-923
Commissioner
Texas Department of Mental            Re:   Construction of Article
        Health and Mental Re-               6252~9a, Vernon’s Civil
        tasdation                           Statutes.
P. 0. Box 12668, Capitol Station
Austin, Texas 78111

Dear Dr. Wade:

        Your request for an opinion on the above subject matter     read*   in
part as follows’:

                “Employees of this Department occasionally
       rechive offers to serve in other nonelective offices
       or positions of honor, trust or profit under this state.
       In this situation Section 2 of Article’6252-9a, ‘sets out
       the procedure to be followed to obtain a finding that
       the requirements of Section 1 of this Act have been ful-
       filled.

               “However, when the sequence of employment
       is reversed,   i.e., an individual not employed directly
       by the state but rather iS employed for example by a
       city or county in a nonelective ‘position seeks’or is of-
       fered employment with this Department, a question
       arises as to,what procedure should be followed in order
       to determine whether this individual may ‘accept the
       position with the Department and come within the author-
       ization of Section 1 of Article 6252~9a, Vernon’s An-
       notated Civil Statutes.

                “Wherefore,  your opinion and advice with respect
       to the following quertton is respectfully requested.



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Honorable David Wade,         M. D.,   page 2     (M-923)




                 “Before an individual who holds a nonelective
         office or positionof honor, trust or profit under this
         state although not enployed directly by the state may
         accept an offer of employment with this Department,
         what procedure is to be followed in order to determine
         whether such proposed dual employment would come
         within the authorisation of Section 1 of Article b252-qa,
         Vernon’s Annotated Civil Statutes?”

         Article   6252~9a,   Vernon’s    Civil Statutes,   provides:

                  “Sec. 1. A nonelective state officer or employee
          may hold other nonelective offices or positions of honor,
          trust, or profit under this state or the United States, if
          his holding the other offices or positions is of benefit to
         ,the State of Texas or is required by state or federal law,
          and if there Es no conflict between his holding the office
          or position and his holding the original office or position
          for yhich the officer or employee receives salary or com-
          pensation.

                  “Sec. 2. Before a nonelective state officer or em-
         ployee may accept an offer to serve in other nonelective        ”
         offices or positions ,of honor, trust, or profit, the officer
         or employee must obtain from the governing body, or if
         there is no governing body, the executive head of the agency,
         division, department, or institution with which he is aesociated
         or employed, a finding that the requirements of Section 1 of
         this Act have been fulfilled.   The governing body or executive
         head shall make an official record of the finding and of the
         compensation to be received by the nonelective officer or em-
         plovee from such additional-nonelective office or position of
         honor, trust, ‘or ‘profit including specifically salary* bonus,
         per diem or other t,ype of compensation.

                  “Sec. 3. The governing body or executive head shall
         promulgate rules and regulations necessary to carry out the
         purposes   of this Act. ”




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     Honorable David Wade,     M. D.,   page 3     (M-923)



             The above statute imptements Section 33 of Article 16, Constitu-
    tion of Texas, which prohibits certain dual office holding. However, the
    Constitution expressly makes exceptjon for the Legislature to prescribe
    restrictions   and limitation6 unde,r which non-elective state officers and
    employees may hold other non-elective offices or positions of honor, trust,
    or profit,under this State or the’Ynitsd States, and provided the other of-
    fices’or positions’are.df.bcnLX~~;C~li~~cSCate’of Texas or are required by
    State or federal law,,.,and there
                                    ,, is no,;conflict with the original office or
    position for which he receives sa$a$y or compensation.         This Section of the
    Constitution provides those ahsolute requirements but does not make pro-
    vision as to whether ,the ‘present orprospective      employer is to make such
    findings.    No procedure by the prospective employer covering the second
    employment is therein set out.

               We must read the Constitution and statute together to determine the
      requirements,       and we have concluded that while no statutory procedure is ex-
      pressly provided for the governing body or executive head to make an official
      record of the compensation and finding that the above statutory and constitu-
      tionsl requirements have been fulfilled, compliance with such requirements
      is equallgbtnding on the prosepctive employer.            Consequently, in offering
      the employment, it is incumbent on the prospective employer to have sati.s-
      fied himself that the holding of the second office or position by the employee
      is of benefit to the State of Texas or is required.by state o,r federal law, and
      there is no conflict of duties or interest involved in the holding of the two of-
     ‘fices or positions.       In addition; t+e governing body or executive-head with
    : which the employee is al’resdy associated must make a finding thatthe re-
      qutrements of Section 1 of A.rticle ,62.52,yqa.have been fulfilled. and make an
      official recordof the. fisding and of the compensation to be received by the
      ncm7eJectiv,e’of$ice$ ~~~r!&ploy&/ from the second position, as provided in
      +e&+     +at’tlgil;   ii&&i,,   The& ts nothing in the law which rwuires’ that the
      ,findjng &one deparwspt         or:‘$ge&cy d’r’poritical subdivision is necessarily
      binding on another {ndepdndent~agancy, department or subdivfsfon.              ‘,




                     W~eq an agq;nf.i’nOtic~lictavr’stbtb $ficer.   or.ap-      i,
             pointee who’is e&oyeQ     by the stare or ‘one of its, political
             subdivisions seeke ,another employment with the state, it is’
             necessary that the gpyern$ni body or executive head’of the
                          .,‘?) “,”_ :
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      Honorable David Wade,       M. D.,   page 4     (M-923)



               agency or department make the findings and records re-
               quired by Sections 1 and 2 of Article 6252-9a, V. C,‘S. ;
               also, it is necessary that the prospective employer offer-
               ing the second non-, ectivc office or employment be satis-
               fied that the constitutional and statutory requirements for
               the holding of the eecond office or position have been ful-
               filled; that is, that it is of benefit to the State of Texas or
               is required by state or federal law, and there is no con-
               flict of duties or intereats involved in the holding of the
               two office8 or porritions.




      Prepared    by Kerns Taylor
      Assistant   Attorney ‘General

      APPROVED:
      OPINION COMMITTEE

      W. E.   Allen,    Acting Chairman.

       Je,rry Roberts
      Sally Phillips
       James McCoy
      ‘Bob Lpttimore

      MEADE F. GRIFFW
      Staff Legal Assirtant

      ALFRED WALKER
      Executive As&&ant

      NOLA WHITE
      Firrt Aesirtant




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