Honorable Wardlow Lane Opinion No. WW- 14 

Chairman 

Senate State Affairs Committee Re: Validity and Constitutionality 

Austin, Texas of Senate Bill No. 31. 

Dear Senator Lane: 

This will acknowledge receipt of a copy of Senate Bill No. 31 

by Senator Doyle Willis together with requests for our opinion as to its 

validity and constitutionality. 

Senate Bill No. 31 provides that “every official of the State 

of Texas and every official of every city, county, and other political subdivision of the 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 in the 

manner prescribed by the Constitution and statutes.” 

We are forced to the 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 

it the constitutionality of a section of the charter of the City of New York 

which piovided that if “any councilman or other officer or employe~e of 

the city . . . shall refuse to testify or to answer any question regarding . . . 

official conduct of any officer or employee of the 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:::.der the provisions of this charter section violated due process 

of law under the 14th Amendment to the United States Constitution where 

dismissal was grounded only on the assertion of the privilege against selfincrimination provided by the 5th Amendment. 
. . 

Honorable Wardlow Lane, Page 2 (WW-14) 

Senate Bill No. 31 does not provide for summary dismissal 

without notice and hearing, but it clearly makes the claiming of the privilege and not the commission of an act about which the witness refuses to 

testify a basis for removal from office. It is not a refusal to answer which 

Senate Bill No. 31 makes a ground for removal, but only a refusal to answer 

on the 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 of the constitutional privile,ge is itself made the 

grounds for removal, and the Slochower case held this to be an invalid standard under the Federal Constitution. See Laba v. Newark Board of Education, 

129 A.2d 273 (N. J. Sup. Ct. 1957). 

Since we are forced to the conclusion that Senate Bill No. 31 

is unconstitutional as violative of the due process clauses of the 14th Amendment, we do not pass upon the equally important question of whether a privilege afforded all our citizens by the Federal and State Constitutions may be 

circumscribed in the manner provided by Senate Bill No. 31 as to some citizens without amendments to these constitutions. 

Though by its terms Senate Bill No. 31 makes the claiming of the 

privilege against self-incrimination in itself a basis for removal from office, 

it is believed that the true legislative purpose behind this Bill was not to 

abridge the exercise of a constitutional privilege, but to promote the unquestioned public interest in full and complete disclosures by public officials 

before authorized inquiries of all information relating to the conduct of their 

offices. In order to insure that the scope of this opinion is not misunderstood, 

we wish to express an opinion on the subject of the constitutionality of a Bill 

specifically directed toward that laudable goal. 

Though the U. S. Supreme Court has not ruled on the question, 

we have concluded that legislation providing that misconduct supporting a 

removal shall include the failure of a public official to disclose ‘information 

relating to his office to a body legally authorized to inquire into the subject 

would not be unconstitutional. Garner v. Board of Public Works, 341 U.S. 

716 (1951); Davis v. University of Kansas City, 129 F. Supp. 712 (W. D. MO. 

1955) (per Whitaker, J.); Lerner v. Casey, 25 L.W. 2412 (N.Y. Ct. of App. 

1957); Laba v. Board of Ed~ucation, 129 A.,Zd 273 (N.J. Sup. Ct. 1957); Board 

of Education v. Beiler, 386 Pa. 82, 125 A.2d 327 (1956). It is 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. Due 
Honorable Wardlow Lane, Page 3 (WW-14) 

process would be insured by provision for a hearing after notice before 

the tribunal authorized to effect removal at which hearing the official 

concern would have an opportuntty to show that the failure to disclose in 

question did not result from any violation of his public trust. 

It may be that the failure to disclose information would have 

to constitute a “grave official wrong * independently of the statute to warrant 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 

of such a statute as a whole. 

In our opinion, the salutary purpose sought to be obtained by 

Senate Bill No. 31 can be accomplished in yet another manner. It is clear 

that the privilege against self-incrimination may be waived. One method 

of waiver 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 a waiver by the officer of the privilege 

against self-incrimination when questioned as to his official conduct. 

SUMMARY 

Senate Bill No. 31 in its present form is unconstitutional. The general purpose of the 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