# TheAttorney GeneralofTexas
December 29. 1981 

### MARKWHITE AttorneyGeneral

Supreme Court Building P.0. Box 12548 Austin. TX. 78711 5121475-2501 Telex 910/674-1367 Telecopier 5121475~266

1807Main St.,Suite 1400 Dallas. TX. 75201 21417422.944

4824Alberta Ave.. Suite 160 ElPaso,TX. 79905 91515333464

1220 Dallas Ave.. Suite 202 Houston. TX. 77W2 713lS500666

606Broadway. Suile 312 Lubbock, TX. 79401 SCW747-5238

4309 N.Tenth. Suite B McAllen. TX. 78501 512iM2.4547

200Main Plaza. Suite 400 SanAntonio. TX. 76205 512l225.4191

AnEqual OpportunityI Aflirmative Action Employer Mr. JamesA. Adkins Acting Commissioner Texas Department of Mental Health andMental Retardation P. 0. Box 12668 Austin, Texas 78711 Opinion No. MN-418 Re: Whether state employees may hold full time and part timejobs at the samefacility

Dear Mr. Adkins: You have Inquired as to whether Texas law permits a full-time employee-of a facility operated by the Texas Department of Mental Health and Mental Retardation to hold another part-time position of employment at the samefacility. This question was left unresolved in Attorney General Opinion MW-311 (1981). More specifically, the question is whether or not vocational nurses and registered nurses can hold such dual employment. 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 indirectly from funds of the State.” Tex. Const. art. XVI, §40. Whether a common law incompatibility exists between their full-time

, positions and their part-time duties is afact question. However, we see nobasis for concluding that incompatibility exists as amatter of law. It is unnecessary to determine whether there is aseparation of powers problem since only one agency Is involved. Since both the full-time and part-time positions are nursing positions, it appears that there is not aviolation of article XVI, section 40of the Texas Constitution if it is determined that the position of nursing does not qualify as a“civil office of emolument.” Article XVI, section 40 of the Texas Constitution provides that civil offices of emolument may not (with certain exceptions) be simultaneously held by a person holding another civil office of emolument. Since both the full-time andpart-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. 1425Mr. JamesA. Adkinr - Page 2 (MW-418)

Fromyour 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 donot 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 andMental Retardation whoare 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 JOHNW.FAINTER.JR. First Assistant Attorney General RICHARDE. GRAYIII Executive Assistant Attorney General Prepared by Roxanne Caperton Assistant Attorney General APPROVED: OPINIONCOMMITTEE Susan L. Garrison, Chairman Jon Bible Roxanne Caperton Rick Gilpin JimMoellinger Bruce Youngblood

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