Case Information
*1 The Attorney General of Texas Decmber 31, 1985 JIM MATTOX
Attorney General Honorable Carlos 'F. Truan Opinion No. JM-413
Supreme Court Suildlng Chairman P. 0. Box 12548 Health Services Slbcomaittee Austin, TX. 78711. 2543 Re: Whether a member of the Texas 5121475-2501 Texas State Senats Board of Human Resources may run Telex 910/874-1367 P. 0. Box 12068, Capitol Station for a county office without Telecooier 512/4750266 Austin, Texas 7 3711 resigning the state office Dear Senator Truax 714 Jackson, Suite 700 Dallas, TX. 752024508 214i7428~44
You ask whetvrr a member of a state agency board must resign that
position to run for a county office. Your question conceros a member of the Texas Boated of Human Resources, which is responsible for 4824 Alberta AVE., Suite 160 governing the Texas Department of Human Resources. Hum. Res. Code El Paso, TX. 7-5-2793 915/53334Et 0621.001; 21.003. 1001 Texas. Suite 700 Houston, TX. 77002-3111 [71312255888] certain local officers will resign their office if they become candidates for another office under the following circumstances: Article XVI, section 65 of the Texas Constitution provides that if any of the officers named herein shall an&ounce 806 Broadway, Suite 312 their candidacy, or shall in fact become a caudi- Lubbock, TX. 79401-3479 date. i:x any General, Special or Primary Election, 800/747-5230 for any office of profit or trust under the laws of this 'State or the United States other than the 4309 N. Tenth. Suite B office then held, at any time when the unexpired McAllen, TX. 78501.1885 term of ,the office then held shall exceed oue (1) 5121582-4547 year, such announcement or such candidacy shall
constitute an automatic resignation of the office 200 Main Plaza, Suite 400 then held, and the vacancy thereby created shall San Antonio, TX. 782052797 be filla,d pursuant to law in the same manner as 512/2254191 other vxancies for such office are filled. This provision applies only to the judges, county officers and other An Equal OpportunityI local officers euumerated in article XVI, section 65 of the Texas Affirmative Action Employer
constitution. Semc Clement8 V. Fashing, 457 U.S. 957 (1982); Attorney General Opinion%~~513 (1982). It is not applicable to members of the Board of Human Resources.
Members of th board are subject to the following provision: (a) An officer or employee of the department may not use his official authority or influence or permit xhe use of the programs administered by the department for tt.e purposes of interfering with or affecting the results of an election or for any political purpose:.
(b) An officl!l: or employee of the department is subject to all applicable federal restrictions on political actkvities. However, an officer or employee retains the right to vote as he or she pleases and may express his or her opinion as a citizen on all pc~litical subjects.
(c) An officer or employee of the department who violates a provision of this section is subject to discharge or suspension or other disciplinary measures authorized by the depart- ment's rules.
Hum. Res. Code 521.009. S@!c.tion 21.009(a) prohibits an officer of the department from using official authority or influence to affect the results of an election. This provision does not as a matter of law prohibit a board member from running for another public office while retaining his position on the board. Whether a board member has violated this provision in (connection with an election in which he is a candidate depends upon l:be surrounding facts. If he does violate section 21.009(a) he is "subject to discharge or suspension or other disciplinary measures authorized by the department's rules." Hum. Res. Code 121.009(c).
Section 21.009(b) of the Human Resources Code .subjects officers and employees of the depar,tment to certain provisions of the federal Hatch Act. Chapter 15 of title 5 of the United States Code restricts the political activity of state officers and employees covered by the following definition:
(4) 'State 01: local officer or employee' means an individual eq:loyed by a State or local agency whose principal employment is in connection with an activity which is financed in whole or in part by loans or grants made by the United States or Federal agency, hut does not include -- (A) an individual who exercises no functions in connection with that activity; or (B) an IadivFdual employed by an educational or research inst:Lt:ution, establishment, agency, or system which is ziupported in whole or in part by a State or politic~al subdivision thereof, or by a recognized religious, philanthropic, or cultural organization. (Mphasis added).
Honorable Carlo8 F. Truan .- Page 3 (JM-413)
5 U.S.C. §1501(4). The Lndividual's "principal employment" is not limited to his "princip;%:L public employment." (Emphasis added). Anderson v. United States~Givil Service Comission, 119 F.Supp. 567 (D. Mont. 1954). When a s':ate officer or employee holds both a public and a private job, his "principal employment" is determined by comparing 'the two employments. Matturri V. United States Civil Service Conrmission, 229 F.2d 435 (3d Cir. 19561, per curlam; Anderson v. United States Civil Se+ce Comnission, w. For example, where a state official devoted more time to and earned more monev from his private law practice than :Erom his.work for the estate Deoartment of Public Welfare, his "principal employment" was not in connection with a federally financed activity. Anderson V. United States Civil Service Commission, 119 F.Supp. 567 (D.C. Mont. 1954). An officer of the Newark Housing Authority who received no compensation for his public employment was principally employed in -his private law practice. Matturri v. UnJ_ted States Civil Service Commission. 13 F.Supp. 15 (D.N.J. i955)!-7 Iff'd 229 F.2d 435 (3d Cir. 1956)-E curlam.
The Texas Department of Human Resources administers federally funded welfare programs. llum. Res. Code 522.002. While performing their duties, board member:: are entitled to "per diem as prescribed by the General Appropriation:3 Act." Hum. Res. Code 521.003(g). What constitutes the board member's "principal employment" requires a comparison of the public employment as board member with any other public and private employment this individual may have. ThiS comparison requires an investigation and evaluation of facts to be carried out in accordance w:ith the judicially stated standards.
An individual covered by the Hatch Act definition of "state or local officer or employee" nay not
(1) use his iofficial authority or influence for the purpose of interfering with or affecting the result of ~LIL election or a nomination for office;
(2) directly 131: indirectly coerce, attempt to coerce, command, or advise a State or local officer or employee to pay, lend, or contribute anything of valuaz to a party, committee, organiza- tion, agency, or person for political purposes; or (3) be a candJdate for elective office. (Emphasis added),
5 U.S.C. )1502(a). The ~prohibition against being a candidate for elective office applies to partisan elections. 5 U.S.C. §1503.. County officers in Texas are partisan officers. See Elec. Code 5552.091, 52.092, 172.001, 172.002, 172.029 (effective January 1, 1986);. Elec. Code P56.01, 6.05, 6.05b, 6.05~. 13.02, 13.14 (1925) (repealed 1985). See alsli Elec. Code, Acts 1985, 69th Leg., ch. 211, P12, at 1749 (if United S:ates Department of Justice objects to any provision of new Election Code, the corresponding provision of prior law is not repealed).
If an individual's "pcincipal employment" is as a member of the 'Texas Board of &man Resources, that person may not retain that position after becoming a candidate for county office. If a member of the Board of Human Resources is not principally employed as a member of that board, he may retain his board membership while he is a candidate for a county .offlce. Whether a particular individual is principally employed as a member of the board of Human Resources involves the investigation of factual matters, which cannot be done in the opinion process.
SUMMARY A member of the Texas Board of Human Resources is not subject to article XVI, section 65 of the Texas Constituti~on. Section 21.009(b) of the Human Resources Code subjects officers and employees of t'le Texas Department of Human Resources to all applicable federal restrictions on political activities. Provisions of the federal Hatch Act found in 5 U.S.C., sections 1501 et seq. restrict the political activity of certain state officers and employees whose principal employment is in connection with an activity financed in whole or part by federal loans and grants. Such individuals are prohibited by 5 U.S.C., sections 11502 and 1503, from running for partisan political office.
%Jzb
MATTOX Attorney General of Texas JACK HIGHTONRR
First Assistant Attorney General
MARY KELLER
Executive Assistant Attorney General
ROBERT GRAY
Special Assistant Attorney General
RICX GILPIN
Chairman, Opinion Committee
Prepared by Susan L. Garrison
Assistant Attorney General