THF, ATTOIC~'EY GENERAL 

OF TEXAS 

Aurmxi. T&RAa 78711 

December 31, 1973 

The Honorable Mark W. White, Jr. 

Secretary of State 

Austin, Texas 78711 

Opinion No. H- 190 

Re: Constitutionality of House Bill 

1, 63rd. Legislature, amending 

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

Dear Secretary White: 

House Bill 1 of the 63rd Legislature (Acts 1973, 63rd. Leg., ch. 421, 

p. 1086) becomes effective on January 1, 1974. You have asked us five questions 

concerning its provisions. 

Your first question is: 

“House Bill No. 1 requires certain financial 

activities report8 to be made and provides certain 

filing deadline* for reports. Since there are criminal 

penalties attached to the filing of the financial activities 

report, can this office require an individual to file a 

financial activities report for the calendar year preceding the effective date of the Act?” 

Thoee who are required to file a financial statement are set out in 5 3 of the Act. 

The contents of the statement are the subject of 5 4(c). Section 10 provides that a 

person required to file a financial statement who “knowingly and wilfully fails 

to file” commits a Class B misdemeanor. 

Most of those who are required to file financial statement.s were in office 

prior to the enactment of the Act in May, 1973, or January 1, 1974, its effective 

date. The facts to be reported include facts pre-existing those same dates. Our 

State Constitution, in Article 1, 5 16, prohibits the enactmenr of any retroactive 

law. A retroactive law is oni that. acts’ im the pakt up&.facts existing then. ‘Even so, 

-only those retroactive laH;s #Ah-&ettoy ti%impaii v&tid rights are u&on’&tutional. 

p. 893 
. 

The Honorable Mark W. White, page 2 (H-190) 

See Deacon v. City of Euless, 405 S. W. 2d 59 (Tex. 1966). This Act would 

be retroactive and unconstitutional if it made it a crime for a public official& 

have been possessed of certain described properties at a time prior tb its 

enactment, as, for instance, on April 1, 1973. This it does not do. Itpresently 

requires the filing of a statement of financial activities for a period of one year. 

No penalty is attached to any act or omission to act prior to the effective date. 

The only penalty attached to filing is that of $10 making it a misdemeanor to 

presently fail to file a statement required by the Act. This is not retroactive 

and is not unconstitutional. 

In Attorney General Opinion H-15 (1973) we discussed the constitutionality 

of the original version of House Bill 1. While its provisions were then substantially different from those of the enacted Act, the question of requiring financial 

statements was the same. We there said: 

“It is our opinion that the public does have a 

legitimate interest in the current financial condition 

and recent financial history of those of its servants who 

are in positions of authority where the temptation to 

improperly exercise public discretion for private gain 

may coincide with the opportunity to do so, and that 

public inquiries may be searching in their scope so 

long as they are reasonably related to a purpose such as 

this bill implements. See Stein v. Howlett, 289 N. ,,E. . 

2d 409 (ID., 1972); Cf. New York Times Co. V,.. Sullivan, 

376 U.S. 254, 11 L. Ed. 2d 686, 84 S. Ct. 710(1964). ” 

In our opinion that statement still is a valid statement of law. The 

State, in the interest of promoting ethical behavior on the part of its officials, 

may require an individual to file a report of his financial activities even though 

some of those activities occurred prior to the effective date of the Act, and may 

make the failure to file a misdemeanor. 

Your second question asks: 

“2. Please advise whether coverage extends to 

a judge of a criminal district court as distinguished from 

a district court. In addition, please adirise all of the 

other special courts of district court jurisdiction which 

may be covered under Sec. 2(2)(C).” 

p. 894 
The Honorable Mark W. White, page 3 (H-190) 

Your question is answered, we believe, by the decision in Rochelle 

V. State, 232 S. W. 838 (Tex. Crim.1921) involving the legislatively created 

Criminal District Court of Bowie County and the validity of that portion of the 

creating statute authorizing a six-man jury in misdemeanor cases. A 

preliminary step was the determination of the character of the court. 

“Manifestly, under the power given the Legislature 

by article 5, 5 1 [of the Constitution], as amended in 1891, 

it would have the power to create a criminal district court, 

the language used being ‘the Legislature may establish such 

other courts as it may deem necessary. ‘~ It must be 

observed that, from its inception, the criminal district 

court, . . . has exercised jurisdiction which is vested by 

the Constitution in the district courts;. . . The criminal 

district court has, in all cases, contained elements 

essential to the district court created by the Constitution, 

and had officers in common with the district court created 

by the Constitution. Recalling that by express provisions 

of the Constitution, the jurisdiction in felony cases is 

conferred upon the district court, and having in mind 

the legislative acts and constitutional provisions to 

which we have adverted, we are unable to classify the 

court in question as other than a district court, with 

jurisdiction limited to criminal cases. ” (232 S. W. at 

839. emphasis added) 

The statute, in defining those who are “elected officers” in 5 2(2) includes, 

by subsection (C), “a judge of a court of civil appeals, a district court, a court 

of domestic relations, or a juvenile court created by special law. ” 

In our opinion “district court” as so used was intended to Include all 

district courts among which are those courts denominated “criminal district 

courts”. We must so construe the intent of the Legislature, for any other 

construction would raise serious constitutional questions under the Equal Protection 

clause of the Fourteenth Amendment, Bjorgo Y. Bjorgo, 402 S. W. 2d 143 (Tex. 

1966); Buchanan v. State, 480 S. W. 2d 207 (Tex. Crim. 1972); Reed v. Reed 404 

U.S. 71 (1971). And see Attorney Generai Opinion H-15 (1973). - 

p. 895 
..-. yy,._ 

-. 

. . . 

The Honorable Mark W. White, page 4 (U-190) 

The court8 whose judge8 are included by $ 2(2)(C) in the definition of 

“Elected officers”, therefore,’ are the courts of civil appeals, district courts, 

criminal district courts exercising the jurisdiction of district courts, courts 

of domestic relations, juvenile courts created by epecial laws, and any other 

legislatively created courts, if there are any, which exercise district court 

jurisdiction. 

Your third question asks: 

“3. Who are the individual8 covered under 

Sec. 2(3)(D) of House Bill No. I?” 

Section 2(3)(D) of House Bill 1, in defining “appointed officer” includes, 

by subsection (D): 

“a person who is not otherwise within the 

definition of elected officer, appointed officer, or 

executive head of a state agency, but who hold8 a 

position as a member of the governing board or 

commissioner of a state agency acquired through a 

, method other than appointment. I’ 

“Elective officer” is defined in $ 2(2); “appointed officer” by § 2(3); and 

8txecutive head’ of a state agency” by $2(6). The definition8 are broad and 

inclusive. We are not able to identify any office wiNtin the definition of $2(3) 

(D). 

We are unaware of any offices falling within this category. 

Your fourth question asks: 

“4. Who are the salaried appointed officers in 

Sec. 2(4) of House Bill No. 1 who are required to file 

a financial activities report pursuant to Sec. 3 of 

House Bill No. 17” 

p. 896 
. . * 

The Honorable Mark W. White, page 5 (H-190) 

Section 2(4) defines “salaried appointed officer” as “an appointed officer 

. . . who receives or is authorized to receive for his services to the state a 

salary as opposed to a per diem or other form of compensation. ” 

Section 3 of the Act respires every salaried appointed officer to file the 

financial statement complying with 5 4. Again, we are not in a poeition to list 

all those who come within the category of “salaried appointed officer. ” One 

example, of course, is the Secretary of State who is both an “appointed officer” 

and salaried. Others are the Adjutant General, the State Commissioner of 

Education, the citizen members of the Veterans Land Board, the Commissioner 

of the Department of Labor and Standards, the Firemen’8 Pension Commissioner, 

and members, of the Board of Control, The Texas Employment Commission, 

The State Highway Commission, The Industrial Accident Board, The State Board 

of Insurance, The Board of Pardons and Paroles andThe Texas Water Right8 

Commission. The statutes with reference to each other appointed office will 

have to be examined to determine whether the holder is entitled to a salary as 

opposed to per diem or other compensation. 

Your fifth question aSk8: 

“5. Would an executive secretary or a secretarytreasurer of a state board come within the definition of 

executive head of a state agency a8 defined in Sec. 2(6) 

of House Bill No. l?” 

Section 2( 6) defines “executive head” of a state agency to mean: 

“the director, executive director, commissioner, 

administrator, chief clerk, or other individual not 

within the definition of appomted officer who is 

appointed by the governing body or highest officer 

of the state agency to act as the chief executive or 

administrative officer of the agency. . . . ” (emphasis 

added) 

,’ p. a97 
The Honorable Mark W. White, page 6 (H-190) 

Inclusion or not within the definition will turn on whether, as a matter 

of fact, the person, regardless of his title, falls within the quoted definition, , 

i. e., he is not otherwise an appointed officer , and i8 appointed to serve as the 

chief executive or administrative officer of the agency. Such a person could 

well be called “executive secretary” or “secretary-treasurer”; but not 

necessarily. Conver8ely. not every executive secretary or secretary-treasurer 

is an executive head. 

SUMMAR Y 

House Bill 1, Article 6252-9, V. T. C. S. as amended in 

1973, in requiring financial activities repor’ts covering activities 

prior to the effective date of the Act is constitutional. 

Judges of criminal district courts and of all other court8 

exercising district court jurisdiction are covered by the definition 

of “elected officer”. The statutes creating each officer will have 

to be examined to determine who are covered by the definition8 

of § 5 2(3)(d) and 2(4). 

An executive secretary or secretary-treasurer of an 

agency may qualify as “executive head” of that body if the 

occupant of the officer is not otherwise an appointed officer and 

if he or she is appointed to act ae the chief administrative or 

executive officer of the agency. 

Attorney General of Texas 

Opinion Committee 

p. 896