                 THF, ATTOIC~'EY GENERAL
                         OF TEXAS
                             Aurmxi.         T&RAa    78711




                                   December      31, 1973


The Honorable Mark W. White,           Jr.              Opinion No. H- 190
Secretary of State
Austin, Texas 78711                                     Re:   Constitutionality of House Bill
                                                              1, 63rd. Legislature,  amending
                                                              Article 6252-9, V. T. C. S.

Dear Secretary      White:

      House Bill 1 of the 63rd Legislature (Acts 1973, 63rd. Leg., ch. 421,
p. 1086) becomes effective on January 1, 1974. You have asked us five questions
concerning its provisions.

       Your first   question is:

                       “House Bill No. 1 requires certain financial
               activities report8 to be made and provides certain
               filing deadline* for reports.     Since there are criminal
               penalties attached to the filing of the financial activities
               report,    can this office require an individual to file a
               financial activities report for the calendar year pre-
               ceding the effective date of the Act?”

Thoee who are required to file a financial statement are set out in 5 3 of the Act.
The contents of the statement are the subject of 5 4(c). Section 10 provides that a
person required to file a financial statement who “knowingly and wilfully fails
to file” commits a Class B misdemeanor.

       Most of those who are required to file financial statement.s were in office
 prior to the enactment of the Act in May, 1973, or January 1, 1974, its effective
 date.  The facts to be reported include facts pre-existing       those same dates. Our
 State Constitution, in Article 1, 5 16, prohibits the enactmenr of any retroactive
 law. A retroactive   law is oni that. acts’ im the pakt up&.facts existing then. ‘Even so,
-only those retroactive   laH;s #Ah-&ettoy ti%impaii v&tid rights are u&on’&tutional.




                                             p. 893
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The Honorable    Mark W. White,     page 2 (H-190)




See Deacon v. City of Euless, 405 S. W. 2d 59 (Tex. 1966). This Act would
be retroactive   and unconstitutional if it made it a crime for a public official&
have been possessed of certain described properties       at a time prior tb its
enactment, as, for instance, on April 1, 1973. This it does not do. Itpresently
requires the filing of a statement of financial activities for a period of one year.
No penalty is attached to any act or omission to act prior to the effective date.
The only penalty attached to filing is that of $10 making it a misdemeanor       to
presently fail to file a statement required by the Act.     This is not retroactive
and is not unconstitutional.

       In Attorney General Opinion H-15 (1973) we discussed the constitutionality
of the original version of House Bill 1. While its provisions were then substan-
tially different from those of the enacted Act, the question of requiring financial
statements was the same.     We there said:

                       “It is our opinion that the public does have a
                legitimate interest in the current financial condition
                and recent financial history of those of its servants who
                are in positions of authority where the temptation to
                improperly    exercise public discretion for private gain
                may coincide with the opportunity to do so, and that
                public inquiries may be searching in their scope so
                long as they are reasonably related to a purpose such as
                this bill implements.     See Stein v. Howlett, 289 N. ,,E. .
                2d 409 (ID., 1972); Cf. New York Times Co. V,.. Sullivan,
                376 U.S. 254, 11L. Ed. 2d 686, 84 S. Ct. 710(1964). ”

       In our opinion that statement still is a valid statement of law. The
State, in the interest of promoting ethical behavior on the part of its officials,
may require an individual to file a report of his financial activities even though
some of those activities occurred prior to the effective date of the Act, and may
make the failure to file a misdemeanor.

      Your second question asks:

                       “2. Please advise whether coverage extends to
                a judge of a criminal  district court as distinguished from
                a district court.  In addition, please adirise all of the
                other special courts of district court jurisdiction which
                may be covered under Sec. 2(2)(C).”




                                      p. 894
The Honorable     Mark W. White,    page 3 (H-190)



       Your question is answered, we believe,   by the decision in Rochelle
V. State, 232 S. W. 838 (Tex. Crim.1921) involving the legislatively  created
Criminal District Court of Bowie County and the validity of that portion of the
creating statute authorizing a six-man jury in misdemeanor     cases.   A
preliminary  step was the determination  of the character of the court.

                    “Manifestly,   under the power given the Legislature
                by article 5, 5 1 [of the Constitution],    as amended in 1891,
                it would have the power to create a criminal district court,
                the language used being ‘the Legislature       may establish such
                other courts as it may deem necessary. ‘~ It must be
                observed that, from its inception, the criminal district
                court, . . . has exercised jurisdiction which is vested by
                the Constitution in the district courts;. . . The criminal
                district court has, in all cases, contained elements
                essential to the district court created by the Constitution,
                and had officers in common with the district court created
                by the Constitution.    Recalling that by express provisions
                of the Constitution, the jurisdiction    in felony cases is
                conferred upon the district court, and having in mind
                the legislative  acts and constitutional provisions    to
                which we have adverted, we are unable to classify the
                court in question as other than a district court, with
                jurisdiction limited to criminal cases. ” (232 S. W. at
                839. emphasis added)

      The statute, in defining those who are “elected officers”    in 5 2(2) includes,
by subsection (C), “a judge of a court of civil appeals, a district court, a court
of domestic relations,  or a juvenile court created by special law. ”

         In our opinion “district court” as so used was intended to Include all
 district courts among which are those courts denominated “criminal      district
 courts”.    We must so construe the intent of the Legislature,  for any other
 construction would raise serious constitutional questions under the Equal Protection
 clause of the Fourteenth Amendment,       Bjorgo Y. Bjorgo, 402 S. W. 2d 143 (Tex.
1966); Buchanan v. State, 480 S. W. 2d 207 (Tex. Crim. 1972); Reed v. Reed 404
 U.S. 71 (1971). And see Attorney Generai Opinion H-15 (1973). -




                                      p. 895
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                                 -.

.    .      .




The Honorable              Mark W. White,      page 4 (U-190)




            The court8 whose judge8 are included by $ 2(2)(C) in the              definition of
    “Elected officers”,   therefore,’ are the courts of civil appeals,            district courts,
    criminal district courts exercising    the jurisdiction  of district          courts, courts
    of domestic relations,    juvenile courts created by epecial laws,              and any other
    legislatively  created courts, if there are any, which exercise               district court
    jurisdiction.

                  Your third question asks:

                              “3. Who are the individual8 covered         under
                         Sec. 2(3)(D) of House Bill No. I?”

          Section 2(3)(D)        of House Bill 1, in defining     “appointed   officer”   includes,
    by subsection (D):

                                “a person who is not otherwise within the
                         definition of elected officer,  appointed officer, or
                         executive head of a state agency, but who hold8 a
                         position as a member of the governing board or
                         commissioner     of a state agency acquired through a
                       , method other than appointment. I’

           “Elective  officer” is defined in $ 2(2); “appointed officer” by § 2(3); and
    8txecutive head’ of a state agency” by $2(6).       The definition8 are broad and
    inclusive.    We are not able to identify any office wiNtin the definition of $2(3)
    (D).

                  We are unaware of any offices    falling   within this category.

                  Your fourth question asks:

                               “4. Who are the salaried appointed officers in
                         Sec. 2(4) of House Bill No. 1 who are required to file
                         a financial activities report pursuant to Sec. 3 of
                         House Bill No. 17”




                                                p. 896
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        The Honorable    Mark W. White,     page 5 (H-190)




              Section 2(4) defines “salaried appointed officer” as “an appointed officer
        . . . who receives or is authorized to receive for his services to the state a
        salary as opposed to a per diem or other form of compensation. ”

               Section 3 of the Act respires every salaried appointed officer to file the
        financial statement complying with 5 4. Again, we are not in a poeition to list
        all those who come within the category of “salaried appointed officer. ” One
        example, of course, is the Secretary of State who is both an “appointed officer”
        and salaried.   Others are the Adjutant General, the State Commissioner       of
        Education, the citizen members of the Veterans Land Board, the Commissioner
        of the Department of Labor and Standards, the Firemen’8 Pension Commissioner,
        and members, of the Board of Control, The Texas Employment Commission,
        The State Highway Commission,       The Industrial Accident Board, The State Board
        of Insurance, The Board of Pardons and Paroles andThe Texas Water Right8
        Commission.     The statutes with reference    to each other appointed office will
        have to be examined to determine whether the holder is entitled to a salary as
        opposed to per diem or other compensation.

              Your fifth question aSk8:

                              “5. Would an executive secretary or a secretary-
                        treasurer of a state board come within the definition of
                        executive head of a state agency a8 defined in Sec. 2(6)
                        of House Bill No. l?”

              Section 2( 6) defines   “executive   head” of a state agency to mean:

                        “the director,   executive director,   commissioner,
                        administrator,   chief clerk, or other individual not
                        within the definition of appomted officer who is
                        appointed by the governing body or highest officer
                        of the state agency to act as the chief executive or
                        administrative    officer of the agency. . . . ” (emphasis
                        added)




                                          ,’ p. a97
The Honorable    Mark W. White,    page 6 (H-190)




        Inclusion or not within the definition will turn on whether, as a matter
of fact, the person, regardless     of his title, falls within the quoted definition, ,
i. e., he is not otherwise an appointed officer , and i8 appointed to serve as the
chief executive or administrative     officer of the agency.    Such a person could
well be called “executive secretary” or “secretary-treasurer”;          but not
necessarily.     Conver8ely.   not every executive secretary     or secretary-treasurer
is an executive head.

                                      SUMMAR Y

              House Bill 1, Article 6252-9, V. T. C. S. as amended in
      1973, in requiring financial activities  repor’ts covering activities
      prior to the effective date of the Act is constitutional.

               Judges of criminal district courts and of all other court8
      exercising    district court jurisdiction are covered by the definition
      of “elected officer”.     The statutes creating each officer will have
      to be examined to determine who are covered by the definition8
      of § 5 2(3)(d) and 2(4).

              An executive secretary or secretary-treasurer       of an
      agency may qualify as “executive head” of that body if the
      occupant of the officer is not otherwise an appointed officer and
      if he or she is appointed to act ae the chief administrative    or
      executive officer of the agency.




                                                    Attorney   General   of Texas




Opinion Committee




                                      p. 896
