THE A-ITORNEY GENER.\L 

OFTEXA~ 

roanr L. aILL AII~TIN.TISXA~ 78711 

A-- cI~A% 

July 27. 1973 

The Honorable Herbert C. McKee, Chairman 

Texas Air Control Board 

820 East 53rd Street 

Austin, Texas 78751 

Dear Mr. McKee: 

Opinion No. H- 71 

Re: Quertions concerning 

the application and 

constitutionality of 

Article 62 52 -9, V. T. C. S. 

(Acts 1957) 

You have requested our opinion concerning the application and constitutionality of Article 6252-9, V. T. C. S. (Acts, 1957) and particularly $ 3(l) 

thereof relating to standards of conduct as that section may apply to members 

of the Texas Air Control Board. 

Section 2.02 of Article 4477-2 requires that one of ‘the nine members be 

a professional engineer with at leaot ten years experience in the actual 

practice of his profession including work in air control; one shall be a 

licensed physician currently engaged in general practice with experience 

in the field of industrial medicine; one shall be engaged in the management 

of a private manufacturing or industrial concern for at least ten years; 

one shall be experienced in the field of municipal government; one shall be 

an agricultural engineer with at least ten years in his profession; and the 

remaining four shall be chosen from the general public. Board members 

receive no salary but do receive $25 for each day in attendance at meetings 

or hearings or on authorized business of the Board and reimbursement for 

travel and other necessary expenses (§ 2.05). 

You were appointed to the Board in 1966 to fill the space allocated 

to the professional engineer with experience in the air pollution field. 

You have asked that we answer five specific questions, which are: 

p. 307 
Honorable Herbert C. McKee, page 2 (H-71) 

“1. Is Section 3(i) of Article 6252-9 

(1957 Act) constitutional? 

“2. Is Section 3(i) of Article 6252-9 

constitutional as applied to members of the 

Texas Air Control Board serving pursuant 

to the Texas Clean Air Act (V. A. C. S., 

Article 4477-5) and proceedings under which 

these members were appointed by the Executive and confirmed by the Senate? 

“3. Can the present members of the 

Texas Air Control Board continue to serve 

in this capacity? 

“4. If the answer to No. 3 is yes, can 

such a Board member avoid a substantial conflict within the intent of the Declaration of 

Policy contained in Section I of the 1957 Act 

if he disqualifies himself on any items of 

business pertaining to companies or other 

entities with which he has significant business and/or professional association? 

“5. In addition to the procedure specified in No, 4, is any other action required by 

such a Board, member in order to avoid any 

conflict of interest which would be in violation 

of the 1957 Act or any other applicable statute? ” 

Article 6252-9 as enacted in 1957 (Acts 1957, 55th Leg., p. 213, 

ch. 100) declared the policy of the state in $1 as follows: 

“Section 1. It is hereby declared to be 

the policy of the Legislature 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 incur any obp. 308 
The Honorable Herbert C. McKee, page 3 (H-71) 

ligation of any nature which is in substantial 

conflict with the proper discharge of his 

duties in the public interest. To implement 

such policy and to strengthen the faith and 

confidence of the people of Texas in their 

Government, there is herein enacted a code 

of ethics setting forth standards of conduct 

to be observed by state officers and employees in the performance of their official duties. 

It is in the intent of the Legislature that this 

code shall serve not only as a guide for official 

conduct of the State’s public eervants but also 

as a basis for diecipline of those who refuse to 

abide by its terms. ” 

Section 2 contained definitions. The “Standards of Conduct I’ of 

5 3 include 5 3(i), the primary section giving rise to your inquiries, and 

which reads as follows: 

“(i) No officer or employee of a state 

agency nor any firm, association, corporation 

or other business entity in which he is a member, agent, or officer, or in which he owns a 

controlling interest, shall sell goods or services 

to any person, firm, association, or corporation 

which is licensed by or regulated in any manner 

by the state agency in which such officer or employee serves. ” 

Section 4 provided that the failure of any officer or employee of a State 

agmcy, etc., to comply with the standards which apply to him “shall 

constitute grounds for expulsion, removal from office, or discharge, 

whichever is applicable. ” 

In 1971 the 62nd Legislature attempted to amend Article 6252-9 by 

adopting the so-called 1971 Ethics Bill (Acts 1971, 62nd Leg., Regular Session, 

Ch. 962, p. 2906). Its statement of policy was the same. It had, in its $ 4, 

standards of conduct, and had a similar provision that failure to comply 

would constitute grounds for expulsion, removal from office, or discharge. 

It went further in that it required financial statements of certain State officers 

p. 309 
The Honorable Herbert C. McKee, page 4 (H-71) 

and employees, called for the creation of a State Ethics C ommirrion, etc. 

However, the 1971 Act was declared unconstitutional by the opinioor of this 

office in Attorney General’s Opinion M-1039 (1972) which in part w:; in 

answer to questions from your office. Having held the 1971 Act unconstitutional, the opinion looked to the 195’i Act, and particularly S 3(i), upheld 

the constitutionality of that section, and stated that whether members of 

the Air Control Board may have dealings with companies regulated by the 

Board “must first be determined by the employing State agency . . . . ‘I 

Finally, the 63rd Legislature, in House Bill No. 1, effective January 

1, 1974, repealed the 1.957 Act and enacted the 1973 Ethics Code. It 

contains the same declaration of policy. Pertinent to your questions is 

5 6 which provides in subsection (a): 

“This section applies only to an elected or 

appointed officer who is a member of a Board or 

a Commission having policy direction over a state 

agency, excluding officers subject to impeachment 

under Article XIV, $ 2 of the Texas Constitution. 

If such an officer has a personal or private interest 

in any measure, proposal, or decision pending 

before the Board or Commission, he shall publicly 

disclose the fact to the Board or Commission in a 

meeting called and held in compliance with the 

Open Meetings Law (Art 6252-17, Vernon’s Texas 

Civil Statutes) and shall not vote or otherwise participate in the decision. The disclosure shall be 

entered in the minutes of the meeting. ” 

The remaining subsections of 5 6 contain definitions and provisions for 

removal in the event the required disclosure is not made. 

Section 8 of the 1973 Bill cont.ains its “standards of conduct” which are 

fewer in number than in either the 1957 or 1971 Acts. Pertinent to your 

inquiry are subsections b, c and e which are as follows: 

“(b) No state officer or state employee should 

accept employment or engage in any business or 

p. 310 
The Honorable Herbert C. McKee, page 5 (H-71) 

professional activity which he might r,earonably 

expect would require or induce him to disclose 

confidential information acquired by reason of his 

official position. 

‘l(c) No state officer or state employee should 

accept other employment or compensation which 

could reasonably be expected to impair his independence of judgment in the performance of his official 

duties. 

‘l(e) No state officer or state employee should 

intentionally or knowingly solicit, accept, or agree 

to accept any benefit for having exercised his 

official powers or performed his official duties 

in favor of another. ‘I 

No penalty is provided in the 1973 Act for violation of the standards of conduct. 

The authority of the Legislature of the State of Texas is plenary. 

Government Services Insurance Underwriters v. Jones, 368 S. W. 2d 560 

(Tex. 1963). It may enact any law which is not prohibited either by the 

Constitution of the State or of the United States. Shepherd v. San Jacinto 

Junior College District, 363 S. W. 2d 742 (Tex. 1962); Oser v. Cullen, 435 

S. W. 2d 896 (Tex. Civ. App., Houston, 1969). Undoubtedly it has the power 

to determine the public policy of the State and to set standards of conduct 

for governmental officials so long as those standards do not inhibit the 

performance of any constitutional duties. As we said in Attorney General 

Opinion H-15(1973) dealing with House Bill 1 of the 63rd Legislature as 

originally proposed: 

“In setting standards with which all persons 

entrusted with public responsibility must comply, 

the Legislature does not encroach upon the constitutional prerogatives of the other branches of the 

government; it acts in their aid, as well as its 

own, to promote public confidence in the integrity 

of all branches of the government. 

p. 311 
The Honorable Herbert C. McKee, page 6 (H-71) 

“So long as the Legislature does not interfere 

with the discharge by the other branches of their 

constitutional duties no constitutional problem 

reaultr. State Board of Insurance v. Betts, supra 

[ 308 S. W. 2d 846 (Tex. 1958)l. Requiring ethical 

deportment uniformly required of all other public 

servants can be no unwarranted burden. Nor can 

requiring disclosure of relevant financial matters 

be condemned out of hand. And, it has always been 

a legislative function to define crimes and set punishments. ” (p. 65) 

Neither the 1957 nor the 1973 ethics law purports to deal with qualifications 

for office. It is not unusual for acts creating regulatory boards to require 

as a qualification for board membership, qualifications which potentially 

involve conflicts of interest. For instance, the Texas Cosmetology Commission (Article 734c, Vernon’s Texas Penal Code); the State Board of Barber 

Examiners (Article 734a, § 26, Vernon’s Texas Penal Code); the Texas Optometry Board (Article 4552-2. 01, Vernon’s Texas Civil Statutes) and numerable 

others. Potential conflicts of interest do not disqualify persons from membership. See our Letter Advisory No. 13 (1973) with reference to the membership 

of tenants as commissioners of a housing authority. 

Our answers to your specific questions therefore are as follows: 

(1) Sec. 3(i) of Art. 6252-9, the 1957 Act, is constitutional as a 

proper legislative regulation of the conduct of public officers. 

(2) Since 5 3(i) of Article 6252-9 governs the conduct of officials 

after their appointment,it does not conflict in any way with statutes 

determining the qualifications of those to be appointed such as Article 

4477-5, Vernon’s Texas Civil Statutes, prescribing the qualifications 

of members of the Texas Air Control Board. 

(3) The present members of the Texas Air Control Board can continue 

to serve in that capacity unless it is demonstrated that they have exceeded 

the proper bounds prescribed by Article 6252-9 in any of its versions or 

any other statute or comtion law rule governing the proper conduct of 

public officers. Although the 1957 Act said that violation of its standards 

p. 312 
The Honorable Herbert C. McKee, page 7 (H-71) 

of conduct would constitute grounds for removal from office, nevertheless 

it provided no machinery for removal. Removal would have to be in accordance u ith Article 15 of the Constitution, “Impeachment, ” and Tit;< 100 oi 

Vernon’s Texas Civil Statutes entitled “Officers - Removal Of.” 

House Bill 1 of the 63rd Legislature, which will be effective on January 1, 

1974, provides for sanctions only in the event an officer fails to publicly 

disclose a personal or private interest and provides no sanctions for failing 

to a~bide by the standards of conduct. 

Our answer to your third question therefore is that the members of the 

Texas Air C ontrol Board, whatever the circumstances are, may continue 

to serve in their present capacities until their terms expire, they retire, 

or they are removed in some statutory manner. 

In answer to your fourth and fifth questions, we do not believe that the 

standards of conduct set out in the 1957 Act can be totally satisfied merely 

by a board member disqualifying himself on items of business “pertaining 

to companies or other entities with which he has significant business and/or 

professional association.” For instance, and despite the liberalization of 

5 3(i) by Attorney General Opinion M-1069, where an officer of a state agency 

is at the same time an officer, agent, or member of or owns a controlling 

interest m another business entity, under the 1957 Act he and such business 

entity are prohibited from selling goods or services to another person, firm 

or corporation licensed or regulated by the agency. 

We underst.and, for example that your request for our opinion was prompted 

in part by adverse criticism growing out of a contract between a corporation 

subject to the jurisdiction of the Texas Air Control Board and Southwest 

Research Institute, of which you are a director. On its face, such a contract 

wouI,d not comport with the standards of conduct set out in $ 3(i) of the 1757 

.4Cl. This IS not to say, however, that such fact automatically presents a conflict o 

interest contrary to the public policy pronounced by the Legislature and prohabited by the Act. Nor do we determine that it should result in removal from 

off ice. As Attorney General Opinion M-1039 held there may be circumstances 

under which a literal interpretation of 5 3(i) would defeat the legislative intent 

and that the section would not be given such an application. In our opinion the 

finding of these facts in any given case and the application of-the law to 

them to determine whether there is such a conflict of interests as to warrant 

p. 313 
The Honorable Herbert C. McKee, page 8 (H-71) 

action are matters for those charged with enforcement of the ethics legirlation,i. e., 

the heads of agencies and district attorneys in the first instance a&Id the Legislature or the courts if removal from office is to be sought. It wo.11” be incol. 

sistent with the constitutionally guaranteed rights were we to make those 

determinations in the process of writing opinions. 

Under the new Ethics law which becomes effective on January 1, 1974, the 

propriety of such a contract would depend on whether or not it might reasonably be expected to require or induce you to disclose confidential information 

acquired by reason of your official position or would be reasonably expected 

to impair your independence of judgment in the perf0rmanc.e of your official 

duties or was a benefit conferred for your having exercised your official 

powers or duties in favor of another. 

SUMMARY 

Article 6252-9 as enacted in 1957 and as later 

amended does not govern the qualification of persons 

for office. Members of the Texas Air Control Board 

are qualified for office if they meet the requirements 

of Article 4477-5, Vernon’s Texas Civil Statutes. 

Their conduct in office is’to be governed, until January 

1, 1974, in part, by Article 6252-9, and thereafter by 

applicable portions of the 1973 Ethics Bill, and they 

may be subject to removal under appropriate procedures in the event they violate the provisions of that 

Article. 

Very truly yours, 

A 

APPROVED: n 

u Attorney General of Texas 

irst Assistant 

DAVID M. KENDALL, Chairman p. 314 

Opinion Committee