# THF, ATTOIC~'EY GENERAL OF TEXAS Aurmxi. T&RAa 78711

December 31, 1973 The Honorable Mark W. White, Jr. Secretary ofState 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 1ofthe 63rd Legislature (Acts 1973, 63rd. Leg., ch. 421, p. 1086) becomes effective onJanuary 1, 1974. You have asked us five questions concerning its provisions. Your first question is:

“House Bill No. 1requires 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 ofthe Act?” Thoee who are required to file afinancial statement are set out in 53ofthe Act. The contents ofthe statement are the subject of 54(c). Section 10provides that a person required to file a financial statement who “knowingly andwilfully fails to file” commits a Class B misdemeanor. Most ofthose who are required to file financial statement.s were in office prior to the enactment ofthe 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, 516, prohibits the enactmenr ofany retroactive law. A retroactive law is oni that.acts’ imthepakt 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 apublic official& have been possessed of certain described properties at atime 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 $10making it amisdemeanor 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 ofthe 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 ofthose 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 apurpose such as this bill implements. See Stein v. Howlett, 289N. ,,E.
. 2d 409 (ID., 1972); Cf. New York Times Co. V,..Sullivan, 376 U.S. 254, 11L. Ed. 2d 686, 84S. Ct. 710(1964). ” In our opinion that statement still is avalid statement oflaw. The State, in the interest ofpromoting ethical behavior onthe part of its officials, may require an individual to file a report ofhis financial activities even though some ofthose activities occurred prior to the effective date ofthe Act, and may make the failure to file amisdemeanor. Your second question asks:

“2. Please advise whether coverage extends to **a judge**  of a criminal district court as distinguished from a district court. Inaddition, please adirise all ofthe other special courts of district **court** jurisdiction which **may** be covered under Sec. 2(2)(C).”

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

Your question is answered, we believe, bythe decision in Rochelle V. State, 232 S.W. 838 (Tex. Crim.1921) involving the legislatively created Criminal District Court ofBowie County and the validity ofthat portion of the creating statute authorizing a six-man jury in misdemeanor cases. A preliminary **step** was the determination ofthe character ofthe court.

“Manifestly, under the power given the Legislature by article 5, 51[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 ofthe Constitution, thejurisdiction infelony cases is conferred uponthe district court, andhaving 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 52(2) includes, by subsection (C), “a judge of a court of civil appeals, a district court, a court of domestic relations, or ajuvenile 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 ofthe 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, 480S.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 thejurisdiction ofdistrict 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, butwho hold8 a position as a member ofthe governing board or commissioner of a state agency acquired through a

, method other thanappointment. 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. 1who are required to file a financial activities report pursuant to Sec. 3of 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 aper diem or other form of compensation. ” Section 3ofthe Act respires every salaried appointed officer to file the financial statement complying with 54. Again, we are not in apoeition 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” andsalaried. 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, ofthe 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 haveto 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) ofHouse 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 ofthe state agency to act as the chief executive or administrative officer ofthe agency. . . .” (emphasis added)

,’ p. a97The Honorable Mark W. White, page 6 (H-190)

Inclusion or notwithin the definition will turn onwhether, as a matter of fact, the person, regardless ofhis title, falls within the quoted definition, , i. e.,he is not otherwise anappointed officer , and i8 appointed to serve as the chief executive or administrative officer ofthe 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 ofall 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 §52(3)(d) and2(4).

An executive secretary or secretary-treasurer of an agency may qualify as “executive head” ofthat body ifthe occupant ofthe officer is not otherwise anappointed officer and if he or she is appointed to act ae the chief administrative or executive officer ofthe agency.

Attorney General of Texas

Opinion Committee

p. 896