                     The Attorney               General          of Texas
                                         December   29,   1978

JOHN L. HILL
Attorney General


                   Honorable John Wilson                         Ooinion No. H- 1317
                   Chairman
                   House Committee on Health & Welfare           Re: Whether an administrative
                   State Capitol                                 rule of the Texa LSDepartment of
                   Austin, Texas 78711                           Human      Resources    prohibiting
                                                                 departmental     personnel     from
                                                                 being licensed as real estate
                                                                 brokers or salesmen is a valid
                                                                 employment rule.

                   Dear Representative    Wilson:

                          You have requested an opinion as to whether the Department of Human
                   Resources csn enforce a regulation which prohibits department employees
                   from acquiring real estate licenses.     The purpose of this policy is to avoid
                   potential conflicts of interest involving clients of the department.        See
                   V.T.C.S., art.   6252-9b,   § 8.    The issue presented is whether the rule%
                   overbroad in its total prohibition of an outside real estate occupation because
                   there is a possibility of a conflict of interest. The department informs us it
                   would be difficult to police real estate transactions with the department’s
                   clients without a total ban which is relatively easily enforced by checking the
                   records of the Texas Real Estate Commission. You advise that eligibility for
                   client benefits under department       guidelines depends upon other income
                   resources available to the client, and clients are often advised by the
                   department that real property held by them must be converted to cash if they
                   are to remain eligible for benefits.      The rule in question was adopted to
                   prevent department employees having access to client files from improperly
                   using the information, and, further, to avoid any appearance of impropriety
                   should a department employee innocently deal with department clients in
                   pursuing a real estate business.

                          One’s right to work and earn an income, whether characterized as a
                   liberty or a property interest, is a valuable right which should not be curtailed
                   without substantial state interest.     See Bishop v. Wood, 426 U.S. 341 (1976);
                   Board of Regents v. Roth, 408 U.S. 5640972); Perry v. Sindermann, 408 U.S.
                   593 (l972); Schware v. Board of Bar Examiners, 353 U.S. 232 (1957). In that
                   we believe the deoartment rule to be overbroad. it is unauthorized bv the rule
                   making authority of the Department of Human Resources.            V.T.C.S., arts.
                   695c, SS 3, 33; 6953-1, g 10. Cf. Cleveland Board of Education v. LaFleur, 414
                   U.S. 632 (1974) (pregnancy 1eaTrules overbroad).




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        We believe the line of authority which has upheld regulations which prohibit firemen
and policemen from holding second jobs is clearly distinguishable.       These employees are
often on call at all hours, Their physical and mental condition which is vital to the
performance of their duties should not be overtaxed by holding outside employment. See
Lombardino v. Firemen’s and Policemen’s Civil Service Comm’n, 310 S.W.2d 651 (Tex. ciii:
ADD. - San Antonio 1958, writ ref’d n.r.e.) (citv detective        dismissed for enaaeirie in
o&de occuoation of debt-collection):      Trelfa vi Vfilaee of Centre Island. 389 N.F.g.22 22
(S. Ct. Appl Div. 1976) (prohibition of outside employment by police valid); Cox v.
McNamara, 493 P.2d 54 (Ore. Ct. App. 1972) (prohibition upheld as to police), cert. den.,
469 U.S. g82 (1972); Annot.. 88 A.L.R.2d 1235 (1963); but see City of Crowley Firemen.
City of Crowley, 2&OSo.2d 897 (La. 1973) (ordinance Erohtbttmu outstde emolovment
                                                                                - .       was
arbitrary and violated constitutional right of due process).       -

       Although few courts have addressed the issue, we believe that the prohibition which
is the basis of your inquiry is arbitrary unless there is a clear public purpose as has been
articulated   in the cases concerning firemen and policemen.       In Natilson v. Hodson, 47
N.E.2d 442 (N.Y. Ct. App. 1943) a social investigator for the Department of Welfare was
discharged for violating the rule against outside employment by doing accounting work for
a fee after his normal work day. There was no allegation that the outside work interfered
with the employee’s performance          with the department    and the court ordered him
reinstated.  Similarly, in Putkowski v. Carey, 52 N.Y.S.2d 42 (Sup. Ct. 19441, the court held
that a rule which forbade an employee of the Department of Sanitation from working a
second job at a plant making war materials exceeded the power of the department.

      To the extent that the rule of the Texas Department of Human Resources precludes
any employee’s possession of a real estate license where no conflict of interest is involved
and the employee’s performance is in no way impaired, the rule lacks statutory authority
and is invalid. Cf. Attorney General Opinion H-R62 (1978). Of course, more precisely
drawn regulatio=hich     relate narrowly to the interest of the department could be validly
drawn. -See Attorney General Opinion H-1223 (1978); Letter Advisory No. 62 (1973).

                                     SUMMARY

            The Department of Human Resources may not prohibit all
            employees from being licensed as a real estate broker or
            agent ,where no conflict of interest is involved and the
            employee’s performance is in no way impaired.




                                           Attorney General of Texas




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      Honorable John Wilson   -   Page3   (R-1317)




      APPROVED:



bLw




      u
      DAVID M. KENDALL, First Assistant




      Opinion Committee ’




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