                       The Attorney             General of Texas
                                          November     12,   1979

MARK WHITE
Attorney General


                   Honorable Craig A. Washington             Opinion No. MW-81
                   Chairman, HumanServices Committee
                   House of Representatives                  Re: Authority of the governor to
                   Austin, Texas 78769                       restructure   the     Governor’s
                                                             Committee on Aging, and related
                                                             questions

                   Dear Mr. Washington:

                         On Allgust Is, 1979, Governor Clements advised the Executive Director
                   of the Department of Community Affairs by letter of his intent to transfer
                   to that agency the Governor’s Committee on Aging. In part, the letter
                   reads:

                                 It is my intent that the Coordinator of Aging and
                              the other persoMe of the Governor’s Committee on
                              Aging function in all respects as a Division Director
                              and a Division, respectively, of the Texas Department
                              of. Community Affairs.. . .    mt is my intent that the
                              concurrence of the Executive Director of the Texas
                              Department of Community Affairs be obtained with
                              respect to the execution of any and all contracts,
                            .-grants or other similar obligations between the
                              Governor’s Committee on Aging and other parties;
                              with respect to any and all expenditures of funds by
                              the Governor’s Committee on Aging; and with respect
                              to the formulation and implementation of policies of
                              the Governor’s Committee on Aging.

                          You ask by what authority the governor might restructure the
                   statutory Committee on Agiig, and whether the appointment of the
                   Department of Community Affairs executive director to be also presiding
                   officer of the Committee on Aging would be valid.

                        The Department of Community Affairs was legislatively established in
                   1971as the successor agency to the Division of State-Local Relations, Office
                   of the Governor, ‘see V.T.C.S. art. 4413(201)3Attorney General Opinion
                   M-1265 fl972), to zit    local governments in providing essential public




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Honorable Craig A. Washington -      Page TWO    (H+81)



services for their citizens and in overcoming financial, social and environmentalproblems
V.T.C.S. art. 4413(2OU,SL See Attorney General Opinions H-1275, H-1276 (1976). The
governor is specifically auth&&d to transfer to the department personnel, equipment,
records, obligations, appropriations, functions and duties “of the Division of State-Local
Relations and of other appropriate divisions of hi office.” V.T.C.S. art. 4413(2OU,SlO.
(Emphasisadded).

      The Governor’s Committee on Aging was established in 1965 by statute codified as
article 695k, V.T.C.S., which has been since incorporated into the HumanResources Code,
sections 100.001- lOLO26,without substantive change. Acts 1979, 66th Leg., ch. 842, at
2333, 2415. See V.T.C.S. art. 5429b-2, S 3.03(4).

      Although the committee, like the Department of Community Affairs, performs
functions which the legislature might have assigned directly to the governor or his office,
it is legislatively constituted as an independent entity. The governor is empowered to
appoint the committee members with the advice and consent of the Senate and may,
without the necessity of such consent, appoint a coordinator, other necessary personnel,
and a ‘presiding officern (formerly chairman) to %lirect the work of the coordinator of
aging and the committee.” See Attorney General Opinion H-248 (1974); Letter Advisory
No. l21(1977). Cf. Attorney General Opinion M-1286 (1972). The pesiding officer serves in
addition to thexe     members of the committee. The committee is statutorily designated
the state agency to lmndlefederal ‘programsrelatiw to the aging that sre not the specific
responsibility of another agency. HumanResources Code S lOLO25.

       The most recent legislature considered, but failed to enact, House Sill 2210 and
Senate BiJl 1251naming tbe committee, along with a number of other agencies, as. one
%onsidered to be under the control of tbs governor,” and allowing the governor to transfer
any program of such an agency to any other spprcpriate agency in the executive
department. Nevertheless, if the committee is anvappropriatev division of the governor’s
office within the meaning of article 4413(201),no additional authorization is needed to
transfer to the department the wpersonnel,equipment, records, obligations, appropriations,
functions and duties” of the committee. While the Governor has authority to transfer
appropriate divisions of his office to the Department of Community Affair, we do not
believe that article 4413(2ORprovides authority to transfer a division or agency which has
legislatively assigned &ties to be performed by independent state officers. Once the
legislature has provided that functions will be performed by public officers who are
confirmed by the Senate, who take an oath of office, and who are independent of any
other state officer, these functions cannot be diminished or subordinatedwithout specific
statutory authority. -See Letter Advisory No. 2 (1973);&. Attorney General Opinion M-H91
(l972).

       Under article 4413(2OU,V.T.C.S., the director of the Department of Community
Affairs, amcng other things, is to administer the week of the department and administer
all moneys entrusted to the department; he may assign fun&cm and duties to the various
offices and divisions, reorganize the department, and loan or detail departmental
employees to other state agencies or instrumentalities, or to local governments. V.T.C.S.




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 c     .




Honorable Craig A. Washington -       Page Three   (m-81)



art. 44l3(2OD,SS 5, 9, lL As Governor Clements’letter shows, his concurrence would be
necessary to the executicn of any committee contracts 01 award of grants.

      This authority in the executive director of the department, if applied to the
Committee on Aging, would conflict with the statutory authority vested by the legislature
in the committee (0 to adopt rules governing the function of the committee, (2) to
delegate its rights, powers and duties or conversely to refrain from doing so, (3) to
contract for the employment of elderly persons, (4) to disburse state funds appropriated
for certain purposes, (5) to determine the amounts of state money distributed to various
agencies, and (6) to establish qualifications therefor. See
                                                        -   Attorney General Opinions H-
477 (19741,G644 (1966).

     In our opinion, the Governor% Committee on Aging, as structured by the legislature
is not a division of the governor’s office that can be transferred to the present
Department of Community Affairs.

      But it does not follow that the executive director of the department is hmligible for
appointment as presiding officer of the committee. The committee’s statute anticipates
that the person appointed may already be an officer in another capacity, and it takes care
to specify that the’duties of the presiding officer in that event are to be considered an
extension of the duties of the other state office. Human Resources Code SlOLOO3fb).
Moreover, the presiding officer serves without compensation and does not occupy an
office of emolument within the meaning of article XVI, section 40 of the Constitution.
There is no orohibition aaainst such an arrannement so lone as the two oositions are
compatible. iones v. Ale&der, 59 S.W.2d 1080-(&.x. 1933). S& Texas Turnpike Authori
v. She erd 279 S.W.2d 302 (Tex. 1955). cf. Attorney General Opinion H-ll7 (19
?GiiG$%s       &ties).

      Although an incompatibility of separately delegated powers prevents their merger,
the two agencies are not antagonistic so long as they remain separated. In several
respects, the wcrk of the department is complementary to the wak of the committee, and
there is no necessary conflict between their roles. The committee is legislatively
designed so as not to supplant or take over from other state agencies the specific
responsibilities held by other agencies, and it is directed to cocperate with them, including
the Department of Community Affairs. Human Resources Code S 101.025;V.T.C.S. art.
4413(200, S 12. The presiding officer of the committee, unlike the executive director of
the department under the departmental statute, ,is subordinate to a group of senate-
confumed officers - the committee - which has power to control his activities in
directing the wmk of the committee and its staff. Although the possibility exists that
conflicts might arise between his responsibilities and powers as director of the department
and his completely different responsibility and powers as presiding officer of the
committee, neither position is related or subordinate to the other. Absent other facts,
there is no apparent incompatibility such as would prevent the same person from holding
both posts so long as the committee is not a part of the Department of Community Affairs
or subject to the departmental statute. State ex rel. Brennan v. Martin, 51 S.W.2d 815
(Tex. Civ. App. - San Antonio 1932, no writ). See     -    Attorney General Opinion MW39




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Honorable Craig A. Washington -     Page Four (MI+81)



fl979); Letter Advisory Nos. 149 (19781,ll4 U975). z   Attorney General Opinion H-727
(l975).

                                       SUMMARY

                 The governor may lawfully appoint the executive director of
                 the Department of Community Affairs to serve as presiding
                 officer of the Committee on Aging. The Committee on
                 Aging may not, however, be transferred to the Department
                 of Community Affairs.




                                           MARK WHITE
                                           Attorney General of Texas

JOHN W. PAINTRR, JR.
First Assistant Attorney General

TED I,. HARTLEY
Executive Asslstabt Attorney General

prepared by Bruca Youngblood
Assistant Attorney General

AFFROVEDZ
OE’INION~
       COMMITTEE

C. Robert Heath, Chairman
David Bi Bra%+
SusanGarrison
Rick Gllpin
Bob Gammage
Terry Goodman
Wlllllm G Reid
Bruce Youngblocd




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