Untitled Texas Attorney General Opinion ( 1974 )

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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:
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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.
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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:
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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
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~L.-L+a-
DAVID M.. KEN DALL,
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Chai,rman
Opinion Committee
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