Honorable Wardlow Lane Opinion No. WW- 14 Chairman Senate State Affairs Committee Re: Validity and Constitutionality Austin, Texas ofSenate Bill No. 31. Dear Senator Lane:

This will acknowledge receipt ofacopy ofSenate Bill No. 31 by Senator Doyle Willis together with requests for our opinion as to its validity and constitutionality.

Senate Bill No. 31provides that “every official ofthe State of Texas and every official ofevery city, county, and other political subdivision ofthe State, whether elected or appointed, who refuses to answer before any **court,** tribunal, grand jury, Legislative or Congressional investigating committee, or any State or Federal board or commission conducting an authorized inquiry or investigation, on the ground that it would or might incriminate or tend to incriminate him, any question pertaining to his official duties or his performance thereof, shall be guilty of official misconduct for which he may be removed from office inthe manner prescribed by the Constitution and statutes.”

We are forced tothe conclusion that Senate Bill No. 31, in the form submitted, is unconstitutional. Slochower v. Board of Education, 350 U.S. 551 (1956). In the Slochower case, the Supreme Court had before itthe constitutionality of a section of the charter ofthe City ofNew York which piovided that if “any councilman or other officer or employe~e of the city
...shall refuse to testify or toanswer any question regarding

.. . official conduct of any officer or employee ofthe city
. ..on the ground that his answer would tend to incriminate him

. ..his term or tenure of office or employment shall terminate and such office or employment shall be vacant . ..” The Court held that summary dismissal without notice and hearing u:::.derthe provisions ofthis charter section violated due process oflaw under the 14thAmendment to the United States Constitution where dismissal was grounded only on the assertion ofthe privilege against selfincrimination provided by the 5thAmendment.. .

Honorable Wardlow Lane, Page 2 (WW-14)

Senate Bill No. 31does not provide for **summary** dismissal without notice 

### and hearing, but itclearly makes the claiming ofthe privilege and not the commission of an act about which the witness refuses **to** testify abasis for removal from office. Itis not arefusal to answer which Senate Bill No. 31makes aground for removal, but only a refusal toanswer onthe ground that the answer might incriminate. Thus a simple refusal to answer would not be grounds for removal under the Bill. It is clear, therefore, that the exercise ofthe constitutional privile,ge is itself made the grounds for removal, and the Slochower case held this tobe an invalid standard under the Federal Constitution. See Laba v. Newark Board of Education, 129A.2d 273 (N. J. Sup. Ct. 1957).

Since we are forced tothe conclusion that Senate Bill No. 31 is unconstitutional as violative ofthe due process clauses ofthe 14thAmendment, we do not pass upon the equally important question ofwhether aprivilege afforded all our citizens by the Federal and State Constitutions may be circumscribed in the manner provided by Senate Bill No. 31as to some citizens without amendments to these constitutions.

Though by its terms Senate Bill No. 31makes the claiming ofthe privilege against self-incrimination in itself abasis for removal from office, it is believed that the true legislative purpose behind this Bill was not to abridge the exercise ofaconstitutional privilege, but topromote the unquestioned public interest infull and complete disclosures by public officials before authorized inquiries of all information relating tothe conduct oftheir offices. In order to insure that the scope ofthis opinion is not misunderstood, we wish to express an opinion on the subject ofthe constitutionality of aBill specifically directed toward that laudable goal.

Though the U. S. Supreme Court has not ruled onthe question, we have concluded that legislation providing that misconduct supporting a removal shall include the failure ofapublic official todisclose ‘information relating to his office toabody legally authorized toinquire into the subject would not be unconstitutional. Garner v. Board of Public Works, 341 U.S. 716 (1951); Davis v. University ofKansas City, 129F. Supp. 712 (W. D. MO. 1955) (per Whitaker, J.); Lerner v. Casey, 25L.W. 2412 (N.Y. Ct. ofApp. 1957); Laba v. Board ofEd~ucation, 129A.,Zd 273 (N.J. Sup. Ct. 1957); Board ofEducation v. Beiler, 386 Pa. 82, 125A.2d 327 (1956). Itis believed that such legislati,on would constitutionally permit removal from office for any unjustified failure to disclose information, including one where the privilege against self-incrimination is assigned as the reason for such failure. DueHonorable Wardlow Lane, Page 3 (WW-14)

process would be insured by provision for ahearing after notice before the tribunal authorized to effect removal atwhich hearing the official concern would have an opportuntty to show that the failure todisclose in question did not result from any violation ofhis public trust.

Itmay be that the failure to disclose information would have to constitute a “grave official wrong *independently ofthe statute towarrant the removal of a public officer who is subject only to impeachment by the Legislature, see Ferguson v. Maddox, 114 Tex. 85, 263 SW. 888 (1924), but its inapplicability to such officers would not affect the vali,dity ofsuch a statute as awhole.

In our opinion, the salutary purpose sought to be obtained by Senate Bill No. 31can be accomplished inyet another manner. Itis clear that the privilege against self-incrimination may be waived. One method ofwaiver is by contract. Therefore, the end may be accomplished by a constitutional amendment ,which would provide, in effect, that acceptance of any public office shall constitute awaiver by the officer ofthe privilege against self-incrimination when questioned as to his official conduct. SUMMARY Senate Bill No. 31in its present form is unconstitutional. The general purpose ofthe Bill could be constitutionally attained by legislation in another form or by constitutional amendment. Very truly yours,

WILL WILSON Attorney General JWW :tiw

Chairman u James W. Wilson Assistant