Untitled Texas Attorney General Opinion ( 1981 )

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
p. 1426