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                                                         March      14,   1974


            The Honorable   Betty J. Anderson                             Opinion    No.   H-   255
            Executive Secretary
            Texas State Board of Examiners                                Re:    Application  of House
            in the Basic Sciences                                                Bill 1, 63rd Leg.,   the
            1012 Sam Houston State Office Bldg.                                  Ethics Bill, to officers
            Austin,  Texas 78701                                                 of an agency not named
                                                                                 therein.
            The Honorable    W. Forrest Smith
            Chairman,    Texas Youth Council
            P. 0. Box 900
            Dallas,   Texas 75221

            Dear Mrs,       Anderson          and Mr.      Smith:

                 Article 6252-9b,   the Ethics Law adopted by the 63rd Legislature
            (Acts 1973, ch. 421, p- 1086) lists in its Sec. 3(a) as those who are
            required to file a financial statement “every [l] elected       officer.
            [Z J salarie,d appointed officer, [3 J appointed officer, of a major s$ate
            agency, and [4] executive head of a state agency . a .’ i”’ ‘Each.‘of
            these is defined in Sec.   2.

                    “Set,          2.    In this Act:

                         “(1) ‘State officer’ means an elected officer,
                    an appomted officer,     or the executive head of a
                    state agency as defined in t,hi.s section.

                            “(2)        ‘Elected   officer’    means:

                            “(A)        a member        of the l,egisl.ature;

                            “(B)        an executive or judicial.          officer   elected
                                        in a statewide election:

                            “(C)        a judge of a court of civil appeals,  a
                                        district court, a court of domestic
                                        relations,  or a juvenile court created
                                        by special l.aw:
                                                                 p.   1191
The Honorable     Betty J. Anderson
The Honorable     W. Forrest Smith,     page 2        (H-255)




           ‘l(D)    a member     of the State Board       of
                    Education;   or


           “(E)     a person appointed to fill a vacancy
                    or newly created office who, if elected
                    rather than appointed, would be an
                    elected officer as defined in paragraph
                    (A). (B). CC), or (D) of this subdivision.

           “(3)     ‘Appointed   officer’    means:


           “(A)     the secretary   of state;

           “03)     an individual appointed with the advice
                    and consent of the senate to the governing
                    board of any state-supported  institution
                    of higher education:


           “CC)     an officer of a state agency who is
                    appointed for a term of office specified
                    by the constitution  or a statute of this
                    state, excluding a person appointed to
                    fill a vacancy in an elective office; or


           “CD)     a person who i,s not otherwise within
                    the definition of elected officer,   appointed
                    officer,  or  executive head  of a state agency,
                    but who holds a position as a member       of the
                    governing board or commission       of a state
                    agency acquired through a method other
                    than appointment.

           “(4)      ‘Salaried appokted    offker’ means an
                     appointed officer as defined in this Act 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.




                                            pe 1192
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        The Honorable      Betty J. Anderson
        The Honorable      W. Forrest Smith,       page   3   (H-255)




                    “(5)(A)     ‘Appointed officer of a major state
                              agency’ means any of the following:

                    [twenty-seven   agencies are then listed including
                     nei,ther the State Board of Examiners   in the Basic
                     Sciences   nor the Texas Youth Council]




                    “(6)    ‘Executive    head’ of a state agemy means
                            the director,    executive director,     commissioner,
                            administrator,     chief clerk,    or other individual
                            not within the definiti,on of appointed officer
                            who is appointed by the governing body or
                            hi,ghest officer of the state agency to act as the
                            chief executive or administrative        officer of
                            the agency.     The term includes the chancellor
                            or highest executive officer of a university
                            system    and the president     of a public senior
                            college or university     as defined by Section
                            61.003.   Texas Education Code, as amended.




             The State Board of Examiners     in the Basic Sciences    consists     of six
        members     appointed by the Governor    for a term of six years,      subject t:o
        the consent and confirmation    of the Senate (Article 4590~.     Sec. 3. V. T. C. S. ).
        Each member ins to receive $25 per day “for each day actively engaged in
        the discharge   of his duties” pl.us “actual expenditures”     (Ibid.,    Sec. 4).
        Section 4a of the Article,   added in 196’7 (Acts 1967, 60th Leg.,       ch. 711,
        p. 1834) directs the employment. of an Executive     Secretary.

             The Texas Youth Council consists    of three members appointed by
        the Governor with the consent of the Senate for terms of six years,    They
        are to receive a per diem of $10 per day, not to exceed 60 days for any
        fiscal year plus actual expenses,   They are to empl.oy a full-time Executive
        Director.   Article 5143d. Sec. 4, ‘V. T. C. S.

            Mrs.   Anderson’s     question   is:




                                                   p0 1193
The Honorable    Betty J. Anderson
The Honorable    W. Forrest Smith,      page 4    (H-255)




              “The members     of the Texas State Board of
         Examiners     in the Basic Sciences   respectfully
         request your opinion as to whether or not the
         members     of this Board and the employees       and
         staff of this Board would be subject to the
         provisions   of House Bill 1 [Article    6252-913,
         supra] by virtue of the fact that this agency is
         not named in Subsection     (5)(A) of Section 2
         of House Bill 10 ”

   Mr.    Smith asks:

              “My question is whether members      of the
         Texas Youth Council are ‘state officers’ or
         ‘appointed officers’,   defined in Section 2 of
         the Act, and, if so, whether we are required
         to file financial statements   as provided in
         Section 3 of the Act.”

     The members   of the State Board of Examiners    in the Basic Sciences
and of the Texas Youth Council are not required to file the financial state-
ments called for by Sec. 3 of the Ethics Act.    Although they are “appointed
officers” within the defmition of Sec. 2(31 of the Ethics Act, they are not
elected officers, they are not salaried appointed officers and, neither
agency being one of the twenty..seven  named major state agencies,      they
are not appointed officers  of a major state agency.    Finally,  they do not
meet the Sec. 2 definition of executive head of a state~agency.

    Though agency members    are not required        to file the Sec. 3 statement,
that circumstance   does not excuse members          or staff from otherwise
 complying with the Act.

     Section 5, requiring an affidati,t from an appointed officer not required
to file a financial statement who has. acquires,     or divests himself of a
substantial interest in a business    entity which is subject to regulation
by a state agency or does business with a state agency,       applies to the
members     of each board, which is not listed as a “major state agency”.




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            The Honorable     Betty .I. Anderson
            The Honorable     W. Forrest Smith,          page 5          (H-255)




                 The Executive Secretary    of the Board of Examiners      and the Executive
            Direct or of the Youth Council,    in our opinion,probably    meet the Sec. 2(6)
            definition of “executive   head of a state agency” and, as such, will have
            to file the financial statement reqlir~ed by Sec. 3. if in fact.. they are
            appointed “to act as the chief ~administratke      or executive officer of the
            agency, ” See Attorney General Opinion No. H-190 (1973).

                Of course, all of these persons and all other empl,oyees of these
            agencies are subject to the “standards of conduct” of Set, 8 of the Act.

                                                SUMMARY

                            The unsalaried,     appointed members     of a board or
                      a stste agency,      not name’d as a ‘major state agency” in
                      the Ethics Act, Article 6252-913,       are not required to
                      fi1.e a fi.nanci,al statement,   but are required to fi,le an
                      affidavit showmg any invol.vement in regulated activities.
                      The person appointed to act as the chief executive or
                      admini~st:rati.ve person in such an agency is required
                      to fi.le tlie financial statement.     The board members,
                      the execut.ive head and all other staff members         and
                      employees      are governed by the Standards of Gonduct.

                                                                    Very   truly yours,




                                                         (    /     Attorney       General   of Texas




        !iik \*-----.
                ~L.-L+a-
                DAVID M.. KEN DALL,
                                    ------
                                             Chai,rman
                Opinion Committee




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