Honorable          Wardlow               Lane                                         Opinion       No.         WW-        14
Chairman
Senate      State       Affairs          Committee                                    Re:       Validity         and       Constitutionality
Austin,         Texas                                                                           of Senate          Bill       No.      31.


Dear       Senator        Lane:


                        This      will     acknowledge                    receipt          of a copy            of Senate           Bill     No.      31
by Senator            Doyle       Willis        together            with        requests           for     our        opinion        as      to its
validity        and     constitutionality.


                        Senate       Bill       No.      31 provides                  that      “every      official            of the State
of Texas         and     every       official          of every               city,      county,         and     other          political       sub-
division        of the State,             whether             elected          or     appointed,           who        refuses           to answer
before      any       court,      tribunal,           grand          jury,          Legislative            or    Congressional                  in-
vestigating           committee,             or       any     State        or    Federal           board         or     commission
conducting            an authorized                inquiry          or     investigation,                on the ground                  that    it
would      or    might         incriminate               or    tend       to incriminate                  him,        any       question        per-
taining      to his       official        duties         or    his       performance                thereof,            shall       be guilty
of official       misconduct                for    which           he may             be removed               from        office       in the
manner          prescribed           by the Constitution                         and        statutes.”


                        We     are       forced       to the conclusion                      that    Senate            Bill      No.       31, in
the form         submitted,              is unconstitutional.                            Slochower          v. Board              of Education,
350 U.S.         551 (1956).              In the Slochower                      case,        the Supreme                  Court        had before
it the constitutionality                    of a section                 of the charter               of the City                of New        York
which      piovided           that       if “any       councilman                   or    other     officer           or    employe~e           of
the city        . . . shall        refuse         to testify             or     to answer           any        question           regarding               . . .
official      conduct          of any       officer           or    employee                of the city          . . . on the ground
that his        answer         would        tend      to incriminate                      him     . . . his       term           or tenure           of
office     or employment                   shall       terminate                and       such     office        or    employment                  shall
be vacant         . . .”       The       Court        held         that       summary             dismissal             without           notice      and
hearing         u:::.der the provisions                     of this        charter           section            violated          due      process
of law      under       the     14th Amendment                       to the United                States         Constitution                where
dismissal         was        grounded             only      on the assertion                     of the privilege                   against         self-
incrimination             provided           by the           5th Amendment.
                                                                                                                                                            .   .




Honorable             Wardlow            Lane,          Page      2 (WW-14)




                          Senate      Bill        No.     31 does         not provide             for      summary              dismissal
without        notice        and hearing,                but it clearly             makes         the claiming                  of the privi-
lege      and not the commission                           of an act about                 which        the witness              refuses         to
testify       a basis        for     removal             from      office.          It is not a refusal                   to answer            which
Senate        Bill     No.       31 makes              a ground         for   removal,            but only            a refusal         to answer
on the ground                that the answer                   might      incriminate.                  Thus        a simple           refusal         to
answer         would       not be grounds                  for     removal           under        the      Bill.       It is clear,            there-
fore,      that the exercise                   of the constitutional                      privile,ge         is itself          made       the
grounds         for       removal,          and        the Slochower               case      held       this       to be an invalid              stand-
ard     under        the Federal               Constitution.              See       Laba       v. Newark              Board        of Education,
129 A.2d          273 (N.          J. Sup.        Ct.     1957).


                          Since     we     are         forced     to the conclusion                    that       Senate        Bill    No.      31
is unconstitutional                   as     violative           of the due          process           clauses            of the       14th Amend-
ment,      we      do not pass             upon         the equally           important            question            of whether             a privi-
lege     afforded          all     our     citizens         by the Federal                  and     State         Constitutions             may        be
circumscribed                 in the manner                 provided           by Senate            Bill       No.     31 as to some                citi-
zens      without         amendments                   to these        constitutions.


                          Though         by its terms              Senate          Bill     No.    31 makes               the claiming            of the
privilege          against         self-incrimination                     in itself         a basis         for       removal          from      office,
it is believed             that     the true            legislative           purpose          behind          this    Bill      was       not to
abridge        the exercise                of a constitutional                  privilege,             but to promote                  the unques-
tioned        public       interest         in full       and complete                disclosures                 by public         officials
before        authorized            inquiries            of all        information            relating          to the conduct                 of their
offices.        In order           to insure             that the scope              of this        opinion           is not misunderstood,
we     wish     to express               an opinion             on the subject              of the constitutionality                        of a Bill
specifically            directed           toward         that laudable              goal.


                        Though           the      U.    S. Supreme            Court         has     not ruled             on the question,
we     have     concluded            that legislation                  providing            that misconduct                   supporting           a
removal           shall      include         the failure           of a public              official       to disclose             ‘information
relating        to his       office        to a body            legally       authorized            to inquire              into the subject
would      not be         unconstitutional.                     Garner        v. Board            of Public            Works,          341 U.S.
716 (1951);            Davis       v. University                 of Kansas           City,        129 F.        Supp.         712 (W.         D. MO.
1955)      (per      Whitaker,             J.);    Lerner          v. Casey,              25 L.W.          2412       (N.Y.      Ct.    of App.
1957);      Laba        v. Board           of Ed~ucation,               129 A.,Zd           273 (N.J.          Sup.       Ct.     1957);       Board
of Education              v. Beiler,            386 Pa.          82,    125 A.2d            327 (1956).               It is believed             that
such      legislati,on           would         constitutionally               permit          removal              from       office     for     any
unjustified           failure       to disclose             information,                  including         one where             the privilege
against        self-incrimination                       is assigned           as    the reason              for      such       failure.         Due
Honorable           Wardlow           Lane,         Page      3 (WW-14)




process         would     be insured             by provision            for     a hearing       after       notice     before
the tribunal         authorized               to effect       removal          at which       hearing        the official
concern         would     have        an opportuntty               to show         that the failure          to disclose         in
question        did not result                from     any    violation        of his       public    trust.


                      It may          be that the failure              to disclose           information            would   have
to constitute           a “grave            official       wrong     * independently             of the statute         to war-
rant   the removal               of a public            officer      who     is subject        only     to impeachment
by the Legislature,                   see     Ferguson            v. Maddox,         114 Tex.         85, 263 SW.           888
(1924),     but its       inapplicability               to such       officers        would     not affect          the vali,dity
of such      a statute        as a whole.


                     In our       opinion,           the salutary          purpose          sought     to be obtained            by
Senate      Bill    No.    31 can be accomplished                          in yet     another         manner.         It is clear
that   the privilege             against         self-incrimination                 may      be waived.          One    method
of waiver          is by contract.               Therefore,           the end        may      be accomplished               by a
constitutional            amendment              ,which       would     provide,        in effect,       that acceptance
of any     public       office        shall     constitute          a waiver         by the officer          of the privilege
against      self-incrimination                     when      questioned           as to his     official       conduct.


                                                           SUMMARY


                     Senate        Bill       No.      31 in its present             form     is unconsti-
                     tutional.            The       general        purpose         of the Bill       could     be
                     constitutionally                  attained       by legislation           in another
                     form        or    by constitutional               amendment.


                                                                                     Very     truly     yours,



                                                                                     WILL       WILSON
                                                                                     Attorney         General


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                                                                               u            James     W.     Wilson
                                                                                            Assistant



Chairman
