Untitled Texas Attorney General Opinion ( 1958 )

Dr. Raleigh R. Roas, M. D.
Chairman
Board for Texas State Iioepltals
and Special Schools
Austin, Texas
Opinion NO. ``-376
Re: Whether the Board for Texas
State Hospitals and Special
Schools Is authorized to
supplement the salary of the
Executive Director of the
Dear Dr. Ross: Board.
We quote from your request for an opinion as follows:
"This Board has been attempting for many months
to employ an Executive Dlrectos capable of carrying
out the duties and policies of this Board. Due to
the diverse duties imposed by law In managing the
State's mental hospitals, tuberculosis hospitals and
special aohoola, It haa been,lmposaible for us to
find a person with the neoeaaary quallfloatlons at
the salary authorized In the current appropriation
bill.
"In addition to the above, the Executive Dlrec-
tor is now charged with the new and supplemental duty
of conducting an extensive research $rogram and oper-
ation of several outpatient clinics.
"In order for this Board to carry out Its
responsibilities to the State of Texas and its
patients and special students, particularly In the
new, added and supplemental work fields occasioned
by the various outpatient clinics and research pro-
o-am J it Is essential that a person be employed who
is capable of directing these various affairs.
"A Texas charitable foundation has expressed
an Interest in donating funds to the Board for the
Dr. Raleigh R.Ross, ': " page 2 (WW-376)
malntenanoe and operation of the research and
out-patient clinic programs, and wishes to stlpu-
late that the Board,in Its discretion, may use the
donated funds for supplementing the salaries of
personnel In charge of these programs, if the use
of the funda for this purpose would be lawful.
Yherefore, your opinion Is respectfully re-
quested as to whether or not'this Board may supple-
ment the aalar of the Executive Director from
donated funds.8
The Board is 'authorizedby general statute to accept
and disburse gifts from private souroes. Article 693, Vernon's
Civil Statutes, pertaining to the powers and duties formerly
vested in the Board of'Contro1 with respect to eleemosynary
institutions, provides In part:
“8 . It may take and hold in truat any gift or
devise of real or personal estate for the benefit of
such institution and apply the same as the donor or
deviser may direct."
This power Is now vested In the Board for Texas State
Hospitals and Special Schools by virtue of the provision in
Section 2 of Chapter 316, Acts of the 5lst Legislature, Regular
Session, 1949, whlch,reads:
II
* . . Effective September 1, 1949, the control
and management of, and all rights, privileges, powers,
and duties Incident thereto Including building, de-
sign and construction of the Texas State Hospitals
and Special Schools which are now vested In and
exercised by the State Board of Control shall be
transferred to, vested in, and exercised by the
Board,,forTexas State Hospitals and Special Schools.
. . .
In this opinion we shall assume that the donations
will be made to the Board in accordance with Article 693. While
this Article does not speolfloally authorize the Board to use
donated funds for payment of salaries, we think the language
used therein Is sufficiently broad to glve such authorization,
provided same does not contravene the provisions of any other
applicable statute.
We need not concern ourselves with the question of
whether the donated funds would be subject to legislative appro-
priation pursuant t,o Section 6 of Article VIII of the Constitu-
tion of Texas, for we In fact have an appropriation which we be-
lieve Is applicable to the limited situation presented by your
Dr. Raleigh R. Ross, ?_ page 3 (w-376)
request. In the current Biennial Appropriation Act (Acts 55th
Leg., R.S., 19571;ch, 385, p. 907), there is the following pro-
vision under the heading of 'RESEARCH, TRAINING, AND OUT-PATIENT
FACILITIES":
"The Hospital Board Is authorized to accept any
gifts, grants, or donations, real property or facili-
ties, for the maintenance and operation of the Re-
search Facilities or Cut-Patient Clinics; and such
gifts, grants, or donations are appropriated for the
purposes for which the donor stipulates, except such
gifts shall not be used for traveling expenses of
personnel employed at such facilities."
It is significant that the only restriction placed
upon the use of the subject funds In connection with the opera-
tion of research facilities or out-patient clinics Is that such
funds may not be used for traveling expenses of personnel em-
ployed at such facilities. Implicit In this single restriction
is the conclusion that such funds were appropriated for all
other maintenance and operational costs,includlng the payment
of salaries of personnel connected therewith.
Chapter 4, Acts of the 55th Legislature, R.S., 1957,
provides that the salaries of state officers and employees for
the current biennium shall be in such sums or amounts as may be
provided for by the Legislature in the General Appropriations
The current Biennial Appropriation Act sets the salary of
iki*Executlve Director of the State Hospital Board at $15,000.00
for each year of the biennium. This fact alone, however, does
not preclude the payment of additional compensation to the Director
from gifts and donations. Attorney General's Opinion No. V-1476,
written In 1952, concerned the legality of supplementing the com-
pensation of the Comptroller of The University of Texas, from
funds derived from gifts and bequests. Chapter 455, Acts of the
52nd Legislature, R. S., 1951, contained the same provision,
applicable to salaries for the 1951-1953 biennium, as Chapter 4
of the 55th Legislature, supra. The:General Appropriation Bill,
then In effect, set the~'salaryof*the Comptroller at $l2,5OO.O0
per year. There ,ware other proyisions in the Act, which provided:
"The expenditure of the appropriations herein
made and authorized, whether from the State General
Revenue Fund, local institutional funds, or any
other receipts and funds whatsoever, except bequests
and gifts, shall be subject to the following provl-
sions:
..
. . .
"Sec. 24. Additional Salary Payments. No
Dr. Raleigh R. Ross, page 4 (W-376 1
Institution of higher education shall pay in
excess of the salary rates specified for the
ltemised positions In this Article, excepting
only those which are designated as 'part-time.'"
(Emphasis added.)
The Opinion concluded, after considering the foregoing
provisions of the Appropriation Act, tha~tthe Legislature intend-
ed to limit the amountsof money that might be paid as salaries to
these full-time administrative officials from funds derived
from any source except gifts and bequests. The Opinion accord-
ingly held that the proposed salary supplementation was auth-
orized.
Attorney General's Opinion No. WW-211 (1957) concerned
the construction of an item in the appropriation bill which
authorized the Central Education Agency to accept gifts, grants
or allotments from the United States Government and to appropriate
suoh funds for the "specific purposes authorized" by the Govern-
ment or other donor. The Opinion held that such funds could be
expended by the Agency as authorized by the Government or donor,
and other provisions of the appropriation bill which limited the
number of personnel employed in a particular category and set
salary maximums therefor, did not apply to the expenditure of
such funds, so long as such expenditures were in accordance with
the terms of the colitract entered into 'betweenthe Agency and
the party making the gift or grant.
We believe that the reasoning of the foregoing Opinion
is applicable to your specific question. In appropriating gifts
received for the operation of research facilities and out-patient
clinics for the purpose for which the donor stipulates,-the
Legislature has manifested a clear Intent that the funds so
received and appropriated are In addition to and supplementary
of the funds otherwise appropriated for such purposes.
One further statute should be considered. Section 3(k)
of Huuse Bill 3, Chapter 100, Acts of the 55th Legislature,
Regular Session, 1957, provides:
"(k) No officer or employee of a state agency,
Legislator, or legislative employee shall receive
any compensation for his services as an officer or
employee of a state agency, Legislator or legisla-
tive employee from any source other than the State
of Texas, except as may be otherwise provided by
law."
We have concluded above that the General Appropriation
Act authorizes the use of donated funds for supplementation of
Dr. Raleigh R. Ross, page 5 (m-376)
salaries In connection with research and out-patient facilities.
If this authorization Is In conflict with ChaDter 100. It is
invalid as an attempt to modify or repeal a general law. State
v. Steele, 57 Tex. 200 (1882); Moore v. Sheppard, 144 Tex,
‘I92 S W 2d 5 9 (1946); Attorney Ce 1's Opinions V-412
V-1254 i19517 and m-96 (1957). R%~er, we are of the
that-this-Drovlslon of the-ADpropriatlon- ActIs not in conflict
with Chapter 100.
The above quoted Section 3(k) is a part of the code of
ethics for state officers and employees enacted by the 55th Legis-
lature. Section 1 of the Act states the purpose of thenAct as-
follows:
"Section 1. Declaration of policy. It 1s
hereby declared to be the pollcy~of the Leglsla-
ture that no officer or employee of a state agency,
Member of the Legislature or legislative employee
should have any Interest, financial or otherwise,
direct or Indirect, or engage In any business or
transaction or professional activity or inour any
obligation of any nature which la In substantial
conflict with the proper dlsoharge of his duties
in the public interest. To implement such policy
and to strengthen the faith and confidence of the
people of Texaa In their Government, there Is hereby
enacted a code of ethics setting forth standards of
conduct to be observed by state offlcers and em-
ployees In the performance of their official duties.
It is the Intent of the Legislature that this code
shall serve not only as a guide for official con-
duct of the State's pub110 servants but also as
a basis for dlaclpllne of those who refuse to abide
by Its terms."
Section 3(k) prohibits an officer or employee from reoelv-
lng compensation from any source other than the State of Texas, ex-
cept as may be otherwise provided by law. Would the salary supple-
mentation be received from the State of Texas, within the meaning
of that phrase as uaed In thla section, or Is the supplementation
"otherwise provld&d by law"? In either event, It would not be In
violation of the Code.
The Board has'the discretion to accept or refuse private
donations which are tendered to It. We may assume that the Board
will accept donations only after due deliberation and determlna-
tlon that the source of the donation and the conditions attached
to its use would not be inimical to the interests of the State
Government and the public welfare. The trust funds are held for
disbursement on order of the Board and the donor loses all con-
Honorable Raleigh R. Rosa, page 6 (w-376 1
troI over their expenditure so long as the conditions of their
use are complied with. Our conception of the purpose of Section
3(k) 1s to prevent an employee from exposing himself to obllga-
tlon to or Influence by individuals or groups whose Interests
might conflict with his fealty to the State and to the public.
In receiving the salary supplement the employee would be dealing
solely with the Board, and so far a8 he Is concerned the source
of payment would be the Board acting as an agency of the State
By the donation the trust funds lose their character
zi ,‘sgzte funds and become,publio funds under the direct control
of the State agency administering them. See Attorney Ceneral Is
;Elnlon v-1365 (1951). This being true, it Is our opinion that
e source of compensation would be the State of Texas within
the meaning and spirit of Section 3 (k). But if we are wrong
in this, the payment would nevertheless come wlthln the ex-
ception as being “otherwise provided by law.”
As already noted, there was legislative authoriza-
tion for the payment of salaries from donations under the law
existing at the time of enactment of the Code of Ethics. The
exception in Section 3 (k) recognized and preserved all those
provisions whioh sanctioned payment of compensation from other
sources o To our mind, this 1s the clear meaning of the ex-
ception e It may be observed, further, that any other meaning
would place the 55th Legislature In the position of condemning
as unethical the acts of prior Legislatures which enacted
these provisions. In adopting the Code of Ethics the 55th
Legislature was not presuming to create a new and original
concept of ethical behavior. The Code Is but an articulation
of standards inherent in the duty of public employees to pre-
serve the integrity of their employment. It is a reduction
to written form of principles already embedded in the public
conscience, so that persons less sensitive to those principles
or less responsive to the restraints of conscience will know
what standard of behavior the State demands of Its employees.
It would require a much plainer negation than Is found In
Section 3 (k) to say that the Legislature intended to con-
demn as unethical a course of conduct theretofore considered
ethical or to forbid acts which had been authorized by prior
Legislatures. The conclusion that the 55th Legislature did
not intend In Chapter 100 to prohibit payment or supplemen-
tation of salaries from donations received by State agencies
Is further borne out by the fact that the only restriction
which the 55th Legislature placed on the expenditure of funds
donated for research and out-patient facilities Is In the
payment of traveling expenses.
We are, therefore, of the opinion that the Board
may, in its discretion, supplement the salary of the Execu-
tive Director from gifts or grants received by the Board for
the purpose of maintaining and operating research facilities
.
-- -
Honorable Raleigh R. ROSS, page 7 (w-376 /
and out-patient clinics, provided such supplementation Is
consistent with the purposes of such grants or gifts as speci-
fled by the donor. The amount of such supplementation may be
set by the Board, but should be commensurate with the special
duties performed by the Director In connection with the maln-
tenance and operation of research facllltles and out-patient
clinics.
As ,you have pointed out in your request, the Board
Is confronted with the pressing problem of obtaining the
services of a trained and capable specialist who cannot only
accomplish the usual administrative duties of his post, but
who can also give special attention and effort to the estab-
lishment and mafntenance of recently authorized out-patient
clinics and the Improvement of hospital research facilities.
The executive chosen will perform duties In connection with
these clinics and facilities which,under ordinary circumstances,
would not be incumbent upon this position. He will not be
assuming an additional position, but additional duties, in this
connection, will be transferred to the position of Executive
Director.
We wish to emphasize that the scope of this opinion
is necessarily limited to the particular question submitted,
and the answer to said question is grounded upon statutory
authority which is not necessarily applicable to other posl-
tions or situations.
SUMMARY
The Board for Texas State
Hospitals and Special Schools
may, In Its discretion, supple-
ment the compensation of the
Executive Director of the Board
from gifts or grants received
by the Board for the purpose of
maintaining and operating research
facilities and outhpatient clinics,
provided such supplementation Is
consistent with the purposes of
such grants or gifts as specified
by the donor. The amount of such
supplementation may be set by the
Board, but should be commensurate
Honorable Raleigh R. Ross, page 8 (WW-376)
with the special duties per-
formed by the Director in
connection with the maintenance
and operation of research
facilities and out-patient
clinics.
Yours very truly,
WILL WILSON
Attorney General of Texas
1, ;x,,~.. , P~C...
e
By
onard Passmore
Assistant
iP:jl:zt
APPROVED:
CPINION COMMITTEE
J. C. Davis, Chairman
Cecil C. Rotsch
Mary K. Wall
REVIEWED FOR THE ATTORNEY GENERAL
BY: W. V. Geppert