                                     The Attome),           General of Texas

 JIM MATTOX                                          Au;;ust13, 1984
 Attorney      General


 Supreme Court Building             Honorable Lloyd Doggett                     Opinion No. JM-188
 P.O. Box12548                      Texas State Senate
 Aus!in, TX, 79711- 2549            P. 0. Box 12068, Capttol Station            Re : Whether the Texas Depart-
 5121475-2501                       Austin, Texas   78711                       ment of Human Resources may
 Telex 910/874-1367
 Telecopier   512/475-0266
                                                                                prohibit workers from per-
                                                                                forming court ordered social
                                                                                studies on their own time
 714 Jackson, Suite 7W
 Dallas. TX. 75202-4506
                                    Dear Senator Doggett:
 2141742-8944

                                         YOU have requested an opinion on the validity of a policy of the
 4824 Alberta Ave., Suite 160       Texas Department of Human Resources under which its child protective
 El Paso, TX. 79905-2793            service workers aru prohibited from performing court ordered social
  9151533.3464                      studies on their o&n time in disputed custody suits, even though the
                                    department has no of'ficialrelationship with the parties involved in
,pv       Texas, Suite 700
                                    the proposed study. The existence of a conflict of interest in dual
      ,w.ton, TX. 77002-3111        employment is s question of fact which ordinarily must be determined
  7131223-5886                      by the agency on a case-by-case basis, but we believe the department
                                    may find that a coni'lictof interest exfsts for all of its employees
                                    who would compete gfth the department for appointments and revenue
  606 Broadway, Suite 312
  Lubbock, TX. 79401-3479
                                    under sections 11.12 and 11.18(c) of the Family Code or would perform
  8061747-5238                      services which may luwe other adverse affects on the department.

                                         Section 11.12 0::the Family Code provides, in pertinent part:
  43w N. Tenth, Suite B
  McAllen, TX. 78501-1685
  5121082-4547
                                                 (a) In a suit affecting the parent-child
                                              relationsh:.p,the court may order the preparation
                                              of a social study into the circumstances and
  200 Main Plaza, Suite 400                   condition of the child and of the home of any
  sari Antonio, TX. 78205-2797
                                              person   ut:eking managing   conservatorship or
  51212254191
                                              possession of the child.

      *n Equal Opportunity1                      (b) Tht: social study may be made by any state
      Affirmative Action Employer             agency, including the Texas Department of Human
                                              Resources: or any private agency, or any person
                                              appointed t'y the court . . . . (Emphasis added).

                                         House Bill No. 642 of the Sixty-eighth Legislature amended
                                    section 11.18 of the Family Code by adding subsection (c), which reads
                                    as follows:




                                                                       p. 820
Honorable Lloyd Doggett - Page 2     (JM-188)




             (c) If the court orders the Texas Department of
          Human Resources to prepare the social study pre-
          scribed by Section 11.12 of this code, the court
          shall award a reascnable fee for the preparation
          of the study to the department. The department's
          fee shall be taxes1 as costs, and shall be paid
          directly to the department. The department may
          enforce the order ior the fee in its own name.
          (Emphasis added).

     A conference committee for House Bill No. 642 intentionally
determined that the language If section 11.18(c) is mandatory instead
of permissive. The conference committee bill analysis and the bill's
fiscal note estimate that the bill will result in sizeable revenue
gains to the department's Welfare Administration Operating Fund, with
corresponding reductions in the state and federal funds required for
the operation of the departmwt.

     The Department of Hurran Resources has the powers expressly
granted to it by statute together with those necessarily implied from
Fhe authority conferred or%lties imposed. See Stauffer V. City of
San Antonio, 344 S.W.2d 15ti, 160 (Tex. 1961). The Texas Board of
Human Resources is responsibl? for the adoption of policies and rules
for the government of the department.         Human Resources Code,
521.003(a). The commissioner of Human Resources may employ personnel
necessary for the administration of the department's duties. Sec.
21.005(c). We believe that reasonable personnel policies for which
there is an adequate shox,ing of need are authorized under the
department's implied powers. Attorney General Opinion JM-93 (1983)
expressed the opinion that a necessary concomitant of the authority to
employ persons needed by an agency to perform its duties is the power
to adopt reasonable employnent policies calculated to insure the
achievement of its objective:s,

     A public employee is not prohibited per se from simultaneously
holding two different state wnployments or from simultaneously holding
both state and private emptoyments. See Attorney General Opinions
JM-22 (1983); MW-415 (1981). Under theDepartment of Human Resources'
policy for dual employment, ,lN:tivity
                                     presenting a possible conflict of
interest with the employee's job duties must be reviewed and approved
by the department. Rule 7200 of the department's personnel procedures
prescribes the following:

          7200 Other Employmz:It

          Department employees may wish to become involved
          with   employment or    activities outside    the
          department. This ,?:acticeis generally acceptable
          to the department as long as the additional




                                   p. 821
Honorable Lloyd Doggett - Page 3      (JM-188)




         employment or act,brity is compatible with the
         department's work. Employees must not participate
         in employment or activity that violates the
         standards of condu:: as prescribed in TEX. REV.
         CIV. STAT. ANN., art. 6252-9b, Section 8, known as
         the ethics code.

           .   .   .   .

         All requests for pxticipation in dual employment
         or activities are considered on an individual
         basis except that:

         1.   Employees of 1:he department may not hold
         positions in both county and state protective
         services programs.

         2.   Employees may not participate in          those
         political activit Lrss listed    in Item       7112,
         Political Activities Prohibited.

         All other requests for participation in dual
         employment or activities are carefully reviewed to
         determine if they are compatible with the
         employee's assign~r~l responsibilities in         the
         department. The duitl employment or activity may
         not conflict with thz employee's relationship with
         department    clients,      contractors,   providers,
         persons regulated by the Licensing Branch, or the
         employee's job ir. the department.          Employees
         approved to partic:.pate in dual employment or
         activities must nc't use clients' or licensees'
         names or other infxmation from any department
         files in connectior.with the part-time employment
         or activity.      Emp:.oyees must not use their
         official position C~I identificatj,onto influence,
         threaten, or coerce any person in connection with
         part-time employmc!r.t. Employees approved to
         engage in off-duty employment or activities must
         not conduct any non-iepartmental business activity
         during duty hours. The only way an employee may
         conduct business f3c an outside activity during
         duty   hours    is    For    the   activity   to   be
         department-related,       such         councils    of
         government, child welfare b%ds,           or various
         advisory boards. Thz activity must be approved at
         the regional or state office level. Employees who
         violate these instructions may be subject to
         dismissal.




                                   p. 822
Honorable Lloyd Doggett - Pa3.34     (JM-188)




          Personnel committz~?s responsible for approving
          dual employment or activity requests should
          carefully   consii~c
                             r   the   following  outside
          activities:

           .   .   .   .


          9.   Engaging in the independent activity of
          providing court-orslered social studies.  (This
          type of request should be referred to the state
          office Personnel C'xmnittee.)

     It is not suggested tlwt Rule 7200 is per se an unreasonable
procedure for screening duct:.employment activity that may involve
conflicts of interest. The question is its present application to
certain of the department's employees. We understand that since the
effective date of section 11.18(c), the department has held that a
conflict of interest exists in all cases involving child protective
service workers who wish to perform court-ordered social studies on
their own time.

     Whether a conflict of ixrerest exists is a question of fact which
ordinarily must be determine,1by the agency on a case-by-case basis in
light of the specific dutie::performed by the employee. However, E
cannot say that the departmr:r,tmay not validly determine that a con-
flict of interest exists in t?ylery
                                  instance in which a child protective
service worker in his individual capacity competes with his employer,
the Department of Human Rescurces, for court appointments and revenue
anticipated by the departmert and the legislature under the recently
enacted section 11.18(c) of .:ile
                                Family Code or adversely affects other
aspects of the department, such as its anticipated workload or its
credibility if the courts cJlfuse the source of studies prepared by
workers in their individual cdtpacities.

     One's right to work and earn an income, whether characterized as
a liberty or a property intexst, is a valuable right which should not
be curtailed without legitink.testate interest. See Bishop V. Wood,
426 U.S. 341 (1976); The Borl,dof R~egentsof StateColleges v. Roth,
408 U.S. 564 (1972); Perry V~ Sindermann, 408 U.S. 593 (1972); Schware
v. Board of Bar Examiners cf the State of New Mexico, 353 U.S. 232
(1957); Attorney General Opinion H-1317 (1978). It is our opinion
that a prohibition against yltside employment will be upheld by the
courts inasmuch as the prs'libition is reasonably related to the
legitimate interest of the !;tate in prohibiting outside employment
that creates a conflict of inwrest.   See Gosney v. Sonora Independent
School District, 603 F.2d !i22 (5thxr.        1979); Attorney General
Opinion JM-93 (1983).




                                   p. 823
.   /,


         Honorable Lloyd Doggett - Paga 5    (~~-188)




                                      ,LUMMARY

                      The Texas Department of Human Resources may
                   prohibit workers from performing court-ordered
                   social studies on thsir own time when the workers'
                   dual employment creates a conflict of interest by
                   competing   with   the    department   for   court
                   appointments and rwenue under sections 11.12 and
                   11.18(c) of the Family Code or by adversely
                   affecting other aspects of the department.




                                                 .JI M   MATTOX
                                                 Attorney General of Texas

         TOM GREEN
         First Assistant Attorney Genersl

         DAVID R. RICHARDS
         Executive Assistant Attorney General

         Prepared by Nancy Sutton
         Assistant Attorney General

         APPROVED:
         OPINION COMMITTEE

         Rick Gilpin, Chairman
         David Brooks
         Susan Garrison
         Jim Moellinger
         Nancy Sutton




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