. 

The Attorney General of Texas 

April 16, 1980 

MARK WHITE 

Attorney General 

Ms. Mable Staton 

Executive Secretary 

Texas Board of Licensure For 

Nursing Home Administrators 

P. 0. Box 9706 

Austin, Texas 78766 

Opinion No. NW-17 3 

Re: Whether members of the 

Board of Licensure For Nursing 

Home Administrators may 

participate in certain trade 

association activities. 

Dear Ms. Staton: 

You inquire whether ex-officio members of your board can be paid the 

per diem and actual expenses provided for in section 4(3) of article 4442d, 

V.T.C.S. Section 3 of article 4442d, V.T.C.S., requires that the 

Commissioner of Human Resources, or his designee, and the Commissioner 

of Health, or his designee, be ex-officio members of the board. Section 4(3) 

of article 4442d, V.T.C.S., provides in part that “Board members shall 

receive a per diem of $25.00 while engaged in Board business together with 

actual and necessary expenses.” 

Article 4442d, V.T.C.S., makes no distinction between ex-officio and 

regular board members with respect to payment of expenses. We believe exofficio members are to receive expenses and per diem unless the 

Constitution prevents them from doing so. Article XVI, section 40 of the 

Texas Constitution, which prohibits one person from holding two civil offices 

of emolument, does not bar a state employee from holding a civil office of 

emolument. See Letter Advisory No. 30 (1973). Article XVI, section 40 of 

the Texas Constitution, permits a nonelective state officer to hold other 

nonelective offices under the state, if the other office is required by state 

law. He may receive compensation for the second office, if the provisions 

of article 625%9a, V.T.C.S., are complied with. See also Attorney General 

Opinion H-5 (1973). If the legislature &sires to prohibit receipt of per diem 

by these officials, it may enact a statute to that effect. 

You also request our opinion about whether a board member violates 

article 4442d, section 3A(l), V.T.C.S., if he receives compensation from a 

trade association for teaching a continuing education seminar or other 

course for nursing home administrators. Article 4442d, section 3A(l), 

V.T.C.S., provides in part that “A member of the board . . . may not: (a) be 

an officer, employee, or paid consultant of a trade association in the nursing 

p. 550 
Ms. Mable Staton - Page Two (NW-1731 

home industry.” This article is based on the same policy considerations forbidding any 

state employee from accepting other employment which might impair his independence of 

judgment in the performance of his official duties. See V.T.C.S. art. 6252-9b. It appears 

as though the legislature has determined that sang as an employee of a trade 

association in the nursing home industry might impair a board member’s independence of 

judgment. A board member who receives compensation from a trade association might 

not be as independent as the legislature requires; therefore, board members may not 

accept any employment from trade associations, including teaching positions. 

The legislature has not spoken specifically to whether board members can serve as 

unpaid advisors or directors of trade associations. We believe section 3A(l) of article 

44424 V.T.C.S., prohibits a board member from serving as a director of a trade 

association in the nursing home industry even if he receives no compensation for that 

service. Section 8(b) of article 6252-9b, V.T.C.S., prohibits a state officer or employee 

from accepting other employment which might impair his independence of judgment in the 

performance of his official duties. Whether this provision bars a particular activity, such 

as that of an advisor, is a fact question to be decided by the Texas Board of Licensure for 

Nursing Home Administrators. See Attorney General Opinion H-1223 (1978). 

- 

Finally, you request our opinion about whether the National Association of Boards of 

Examiners For Nursing Home Administrators is a trade association. This Association is 

generally composed of members of agencies that examine, license or register Nursing 

Homes and their administrators. “In general use the words ‘trade associations’ convey the 

meaning of an association of employers in the same trade.” People ex rel. Padula et al v. 

Hughes, 16 N.E.2d 922, 924 (Ill. App. Ct. 1938). In the context of this statute it &es not 

appear that this national association of regulators is a trade association. The board must 

still consider as a question of fact’ whether association with or employment by this 

association would impair a board member’s judgment in his official duties under article 

6252-9b, V.T.C.S. 

SUMMARY 

The ex-officio members of the board may receive per diem and 

actual expenses. A member of the Board should not accept any 

sort of payment for services rendered from a trade association in 

the nursing home industry. Board members may not serve as a 

director or other officer of these associations, but they are not 

absolutely barred from acting as unpaid advisors as long as their 

independence is not jeopardized. Whether article 6252-9b, 

V.T.C.S., prohibits unpaid service as an advisor must be determined 

by the board on a case by case basis. The National Association of 

Boards of Examiners For Nursing Home Administrators is not a 

trade association under article 4442d. V.T.C.S. 

MARK WHITE 

Attorney General of Texas 

p. 551 
Ms. Mable Staton - Page Three (NW-1731 

JOHN W. FAINTER, JR. 

First Assistant Attorney General 

TED L. HARTLEY 

Executive Assistant Attorney General 

Prepared by Peter Nolan 

and Susan Garrison 

Assistant Attorneys General 

APPROVED: 

OPINION COMMITTEE 

C. Robert Heath, Chairman 

Susan Garrison 

Rick Gilpin 

Peter Nolan 

P. 552