                                            The Attorney General of Texas
                                                                 December     29.    1981

MARK WHITE
Attorney General

                                         Mr. James A. Adkins                                       Opinion    No.    MN-418
Supreme    Court Building
P. 0. Box 12548
                                         Acting Commissioner
Austin. TX. 78711                        Texas Department of Mental            Health             Re:  Whether    state   employees
5121475-2501                                 and Mental Retardation                               may hold   full    time and part
Telex 910/674-1367                       P. 0. Box 12668                                          time jobs at the same facility
Telecopier   5121475~266
                                         Austin,  Texas   78711

1807 Main St., Suite    1400             Dear Mr. Adkins:
Dallas. TX. 75201
21417422.944                                    You have Inquired       as to whether      Texas law permits         a full-time
                                         employee-of      a facility      operated    by the Texas Department            of Mental
4824 Alberta    Ave.. Suite    160
                                         Health    and Mental Retardation          to hold another    part-time      position    of
El Paso, TX. 79905                       employment at the same facility.             This question   was left    unresolved     in
91515333464                              Attorney      General    Opinion     MW-311 (1981).        More   specifically,        the
                                         question    is whether or not vocational         nurses and registered        nurses can
                                         hold such dual employment.
1220 Dallas    Ave.. Suite    202
Houston.   TX. 77W2
713lS500666                                      The Texas Department            of Mental Health and Mental Retardation                    is
                                         an agency      of the state           and thus its        employees    are “individuals           who
                                         receive      all     or    part      of     their    compensation       either      directly       or
606 Broadway. Suile      312
                                         indirectly       from funds         of    the State.”         Tex.  Const.     art.     XVI,     §40.
Lubbock, TX. 79401
SCW747-5238
                                         Whether a common law incompatibility                      exists   between     their     full-time
                                     ,   positions     and their       part-time       duties    is a fact    question.       However,      we
                                         see no basis       for concluding          that incompatibility        exists    as a matter of
4309 N. Tenth. Suite     B               law.     It is unnecessary           to determine       whether there      is a separation         of
McAllen. TX. 78501
                                         powers     problem      since     only     one agency      Is involved.         Since     both    the
512iM2.4547
                                         full-time      and part-time          positions      are nursing      positions,       it appears
                                         that there is not a violation                  of article     XVI, section     40 of the Texas
200 Main Plaza. Suite 400                Constitution       if it is determined            that the position       of nursing       does not
San Antonio. TX. 76205                   qualify     as a “civil       office     of emolument.”
512l225.4191

                                                Article      XVI, section      40 of the Texas Constitution                provides       that
An Equal OpportunityI                    civil     offices       of   emolument      may not     (with     certain      exceptions)          be
Aflirmative Action Employer              simultaneously          held   by a person        holding      another      civil      office       of
                                         emolument.         Since both the full-time          and part-time        positions       are paid
                                         positions       “of    emolument,”     the inquiry       becomes:       “Are the        positions
                                         ‘civil     offices’?”         The essential      inquiry     in determining          whether        an
                                         individual        holds    a civil    office    within    article      XVI, section          40,    is
                                         whether      he exercises         some portion       of   the sovereign           power     of     the
                                         government.         See Aldine      Independent     School    District      V. Standley,          280
                                         S.W.2d 578 (Tex. 1955).




                                                                              p.    1425
Mr. James A. Adkinr     - Page 2        (MW-418)




        From your description       of the duties     of the employees      at their
full-time      and part-time     jobs.     it appears    that  theirs   are   public
employments,       but that those employments      do not rise    to the status    of
"public    offices"    or "civil   offices."     Their duties   do not involve     an
exercise    of any portion     of the sovereign    power.

       Based   upon    the    information    you  have   given     us,  it  is our
conclusion     that   such full-time       and part-time     employments   are not
prohibited    under the dual employment prohibition            In Texas law.   See
generally    Bullock   v. Hardin,      578 S.W.2d 550 (Tex.     Civ. App. - Aus=
1979, writ ref'd     n.r.e.).

                                    SUMMARY

                  Employees of      the Texas Department     of Mental
            Health and Mental       Retardation    who are employed by
            such facility   on     both a full-time      and part-time
            basis  in nursing      positions    are not prohibited     by
            law from such dual       employment.

                                                    Very   truly     yours,




                                                -MARK               WHITE
                                                  Attorney         General of   Texas

JOHN W. FAINTER. JR.
First Assistant Attorney      General

RICHARD E. GRAY III
Executive Assistant     Attorney    General

Prepared    by Roxanne Caperton
Assistant    Attorney General

APPROVED:
OPINION COMMITTEE

Susan L. Garrison,     Chairman
Jon Bible
Roxanne Caperton
Rick Gilpin
Jim Moellinger
Bruce Youngblood




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