October 18; 1965..

Honorab~s:~~~.rWlnters,.CommissionerStatet~p~ment:.of"Publlc Welfare Austin; T&as2 Cplnlon No,.. C+2&

Re:.Is.theState.,Depart&ent of Public Welfare‘authorized. ,t0 se&up- a:Di%y.:Ckre Advlsory;C?immlttee~.-conaltitlhg of.r@presentative~~:of"'other~ State~.D&partiaents-~or:~Agerx9.es~ and'.reprieaent&tiires'-ofl other ” profess~ona~'and'cl~lc grm~~ fo~~.~the~putpose~:of'~comply~~. tith.the?federdlzequ~rem6nt~ and.agreement:~wh%h I& tiii? basfa-fdr~t~~.,~partment:'cr' recelvine;lfederal.Ainds:for th~~Ceire::Program'l~~t~e .State;;o~~~~si.and~re2ated.. questMns?-.
Yi%w~-recent' 1ett~errequestBaan opMlon-.op

%he;above~ captioned:matters

'and.-from':~icK

we-quote..:ln::part:'

.- ~~~~Advls~~~Carmnittee~~consls-~ng- of: re~esenti&lves.fi%m~~other+tate:~Agencl&3'- and:'re@esentatlves,-of?other~.prof~sslonal an&'-~f?lc

groups:-lntei?ested.'lnrDhe- devlopment ~~:~~~~~-Semrices-for~.Chlld~e~l~ the~state

* !lii:pkepsrlng~.f6za-.meetlng 6f.~the:-Day.C&re AdViaory-Committee; wer::dlscussed'wl;th

the Comptrollerls:

Cfflce.th&method.of:payment of~the-perdiem anal-the~travel-expenses'and wec.were,<.advised~'that.payment. coul&%ot'be -de;. !l!lie:~Departme~t ls:propos$ng:,to

spay: the&@mt%ttee~

members~-pezyd,lem

a@:ts&vel ,..~ expenses::.on

the~same.-basis..asl-per.!.diem and t?aveLexpenses are.~provided:for:.State-~- .employees-,under-Part1V,'~Section :13?.of: H~use~~13ill.Noi.12....All of.the:funds'to

be.

-2495:-Hon. John Winters. Pa& 2 Cp$nion NO. C-!5~

_, used for this purposeare funds allocated & the United States Oovernment for the. puz$xes of carryingout the provisions of Title V, Part 3, Section 523(a) (1) (B) of the Federal:

Social SecurityAct.

"The Comptroller's

Departmentstated that ~paymentwouldnot be made on.+e basis that:

"1. The Department did &have any. spealfgc.statutory authority to appoint a Day Care Advisory Committeeor to pay the expenses of.memb&s of such Committee whPle attendingofficialmeetings; Andy

: "2. "That employeesof other State :-Agencies

could not serve on such ; Committee

withoutpossibly jeopard- .:-,.. 1, &zing their salarieswith the ernploylng

State Agency. %he..hpartment takes the view that It does .ha+e.the'statutory authorityto appoint a .BsyCare~.Advlsory

Commlttee,and

to pw %he pe=--dPem..and.travel expenses of the members of suchGmm&ttee while attendlng.o$Y&lal. yeetlngs.

.

. . :. .-:,.~- . . II, a
. . . II. i .:. .Sin&e:the

appolntment..of~fhe Advisory Commlttee~:ls

&'&ondltlon~:precedent %o the -Departmen~*s'obf;ainine,.approvall~f~~b~e State -P&ah fop ChI3d .Welfare.Services, -theDepartment' feels :thiit:dt.%houldi .,and that It.

can, legally.ljay

these: Commtttee

members.-:per~dlem .and travel expensesa&ally incurred in the c&rse of the performanaeof their dutles~'as '-C~ttee.,m&&er~'s; :

.. ::;‘.

::~ 'G_~ c+~.,~ .I i

.-. ~.::.:I 1, '. "' >
"The .quesMon;hasalso,&~~~~Pa&& &&.thethe authorlty.of

represen*atiives',of~ other ~State'Departments .to sex?ve ae..members

.of this Advisor-Gmanlttee. We.understsnd.:that.the basis.:.~o~.~~e%tloning their..author$.ty

6 serve ls,~fhat.‘theg:-would be h6ldinP;

two~:pos~tlons

of ..&96; ~.:.,:.

."~ <"Y ,i:I '.Hon. John Winters, Page 3, OQinion No.~ C-528

honor and trust at the same time, and therefore.,

would be unable to receive' their salary from the employingState Agency

. ~. . .

I,

. . -.,The Federal Laws providing for the **Advisory** Committees require that the Advisory Committeeinclude among Its menibers‘representatlves~of other State

. Agencies concernedwith day care, or services reIat.ed.thereto, as well as representatives

of pfofessional

or civic groups.~ !J!o

ellmlnatepeople from other .agencles

would mean that we would be deprived of the experienceand knowledge of persons in close&y related fields suoh'as Education,Health, and Extension Service, which ls.badlyneeded in the development of good Day Care Programs In this State.

.-

I %ly Qurpoae of~the Committeeas S~ipiikted

in the Law and the. agreementwith the United States Children% Bureau, ls.tto, interest as many different segments.ofthe **pOQUtition as-QqSSihle**  with the view of :extendlng

and strengthening

the services : avall.able

ln aommunltles.

for the jpotectlon and.care of ~chlldren who,ere cared for away from their own homes. By working with AdVlsory Connnittees~ the **DeQartqe+.ls** better .ableto serve the needs of children being cared .forIn day care centers.' 11

. . . .
vWe 'shall

appreciate

your opinion on the following questions:

"1. Is the State &partment of Public Welfare authorized to set up a Day Care ; Advisory Conimlttee consistingof representatlves of other State Departments' or Agencies and representatives of other - ~qrofessio@. and clvlc'grouljs for the pur-; pose of complying-with the Federal requlrement'and‘agreementwhich Is .the basis for the~Department!s receiving Federal.funda for the Day Care Program in the'State of Texas?
**-2497-**lion, John'Wlnters,

Page 4 Oplnlon‘No.~ C.328~

"2. If you answer QuestionNo. one (1) in the affirmative, then lz the State, Departmentof publicWelfare authordzed ""‘to pay for the per diem and:the.travel expensesof those members of the ..~ Commftteewho are not employees of other State Departments or Agencies out of Federal funds made'avallable to the Department fQr the extensionof the Day Care Program? “3. If you answer QuestionNo. one (.l)' in the affirmative, may employeesc)S other State Departmentsserve on this Day Care Advisory Committee,without Jeoparqiizln&

o$ losing their salaries from tihe

other,State'Agency?~ ,:'., "4.. Is.the State Departmentof Public Welfare empowered to.set up~other types of'Advisor&

~Boards or.Commlttees

ofPublic Welfare (unrelated,to Day .Care AdvisoryCommittees) which are'essential to,the accomplishment of the other.. purposes.ofthe public Welfare Programs 1n.Texs.s

in accordanckwlth the Depart,. ment's.agreements

with the.Federa$:. Government?

.. I'$* Zf khe'kpai-<meit d6es.'.h.&ve'th~

: atithoi?ity

to'.set up'&3sentialAdvisoti$‘ Boa?@ qr:Cq~ltte&s~.f6r aiiy purpose": it deem appropriate:~d'essenqial to lithe aceoinpl$shuierit

of the' purpdses set. out in the Public Welfare Act, .z+d.o$her

._ relate&Stat& Stqtutps.such as those: ptividing:for.M~dicalAsslst$nc&..un~erthe'Feder&l.Soclal Sectirlty

Act,kloes the Departmenthave the authorlty:to ..pay the per diem and .travel.expelises solely.out,ofl?~derz+l. Funds,.vhen:,the State Departmetit.fin@ $t.necessary tb..~ request such members Tao attetid'ineetings

: foti.the:purQo~se

of.c+rglng ,out..the~. pro~lsi~n~of tJiese,IAct$?!'. : :I~._.

In answ&&g your first~&&3tl&, 'it"& fi;ls.t necessiry to examine-'and

:lntex$l?et.bi$h

,&be: j?ert$$ent.

federal and state : statutes, togetherwlth.theirpo1icy:basi.s. .TheFederal SOCKS SecurityAct prouidei,. i$,Tltle'V,

Part 3.~(@ KS.C., SUbChaQt. 3)~ fcir

Chlld'Wqlf~k :S&vlces,@d: t$i6:~till,oc&t,ioti and appropria tlon of federal ’guncjs~ to.the aii(rte,s .$'!$ch.,aQpiid~+

States PlanEi for, the.purppsq/ti,f

~rk+bllsh%tqj

;extet+ng; and strengthening i&98,- ", .' ..'.~ I :~on;'JohnWlnteig, Page 5 y.CplnlonNo. c-528

such .servlces

wlthln:the state,. In addition to various other provlslonq therefor In the state , a.speclflcprovision Is made in the~fedepalstatute for:th$ allocatlo?and appropriationto, the states for the express.purpose of providing 'Day Care ServIcesU. The law furthermakes It mandatory that the state, through.ltsdepartmentadministering the program, appoint a Day %are Advisory Ccmmlttee;' Title Vi Section 523 (a) (1) (B) provides In part as followsi

"Sec. 523; (a) From .the sums apuroprlatedtherefor and the allotment tivallable under this part; the~S&cretaryshall from time to time pay'to each State --

: "(1) that has a plan for child-welfare serviceswhich has been developed'as provided In this part and .whlch-- "(Aj

. . . "(B) provides, w'lth respect to day care sirvlces (ticludlngthe proiislon of such care) provided under the plan --.'
"(I) for cooperative arr&ngements

mtij the. St&te,healthauthorityqnd the Stati agency prlmar&ly responsiblefo5 State supervision i of public sbhools to assure msxlmum utilization .ofsuch agencies In the provision of necessary : health tiervices

and education for children receiving day care, ."(ll). for an advisoryconrmittee, to advise the State public-welfare agency.on the general policy Involved In the provision of day care services under the State plan, which ,shall Include among Its members representatives of other State agencies concerned.wlth day care or services related thereto and persons representativeof professionalor civic or other publlc.or nonproflE.prlvate agencies, organizations,

or groups concernedwith the provlsion'ofday csre, (underscoring added for &nphasls)
"'(III)

. . . "(iv) for giving priority, In determiningthe existence.

of need.for such day c&e, to members of low-incomeor other groups ln the populatlon.andto geographical areas which have the~greatest

relative need for extension df such day care, and"

12499-Hon. John Winters, Page 6

Section 523 (a).(2)~ also In part.provldes:
;,

. . i.Provided,that In developingsuch.services ~for chileen the facllltles~and experienceof voluntaryagencles.shall be utilized In accordance with child-care programs and arrangements In the. States and local communltles as may be -. authorizedby the State."

'haveRules and.

regulationsfor the Implementation of this statute been subsequently

promulgatedby the Departmentof %Uth, Education,and Welfare, Social SecurityAdministration. In this connectionand in order for the particular state to partlclp&e In the federal allotment for Day Care Services,which Is but another.

facet.of Chlld'Welfare Servlces,~.the.

"Handbook

For Child' Welfdre'Servlces"~

has been published, setting out the mandatory provisions for the State Plan. See Chapter III; SubitemG. ~Oplnioh

**NO.** .c+j@

The Tetis.Leglslature~.hix~made provlslon.for

the State Departtient

of Public Welfare'sauthority so -to,cooperate .x$th the federal governmentand to accept -&nd.e.xpend such funds In accordancewith approved State Plans, as shoti by Section 4, subtiectlon

(4) and (7) of Artlcle:695c,. V.C.S. of Texas, such Act belng:tltlbd "pllibllc Welfare Act df 1941,"subsection (7) having been *.-d&ted and.tiegded,by Acts. 1963, 58th Leg.? p. 70?, ch.-257,Sec,tl'.I, ~.eff&t$ve,Aprll

12, 196Ti
~'~'P&tliie&

siibse&&ns,<ln

ps&'ar$:i&oted:

"Sec. 4.- The State D&a&ment &all be charged wlth the administration of-the .welfare.ac~lvltles .dfthe State,as'h&el~fti?r pp'oqlded. :.The State ~psi$mentsball:
) '"Qjl. F,.... 1. : 'Y .: : '. "(~2) ..' i. '. ,. : .~
-W.(3) ~.. : ’ g. ,.;. 1

. . ::.

. .-

“ f(~) “ :&&&& ‘ &.th’%&~&&r& Sof$al Security Board, cre$jed 'iuider'Tltle 7:of the Social Security Act enacted by the Seventy-fourth Congress and approved Aught 14, ,1935; and 8"s amendmeniz.

thereto, and $&th any other agency

_ of .the,Fede&l.

QovqMent ln.any reasonable.
manner which'

ma+ +e...pecessary

-toqualify for ..F+dera?l..Ald::,

.:.l,:.Hon. John Winters, Page 7 'Opinion No. c-.528

“(6)

. ~. . “(7) Establish and Qrcivlde such method of local admlnlstratlon as Is deemed advisable, and provide such personnel as may be found necessary for carrying out.ln an economical way the administration of this Act. To serve ln an advisory capacity to such local administrative

units as may be established,

.forthe accellshment of theyGooses of --. -- this Act not in conflictwith or du licxlon -~--- of.other laws on this subject;

-- added for emphaslr ----(we

Section 8 of Article 695c, Vernon's Texas.ClvllStatutes specifically

designates the State Departmentof Public Welfare a%the State Agency to cobperatewith the United States ~lldren~s Bureau; and sets forth the m&ruier in which such - eoaperatlon

may be accomplished:. t

"Sec.,8. tie State Department .ls hetieby designatedas "the agency'to.cooperate with the Chlldren'iBureau of the United States Departmentof Labor In:
"(1) Est+bllshlng,extending,and strengthenlngespecially In predominantlyruralareas, public welfare services for the protectlon'tid care of ~.hdoneless,

depende.nt,

and neglected children In' danger 6f becoming delcnquent;and
"(2) Developing State services for the encouragement and assistance of adequatemethods of ckmunlty child welfare organization and paying part of the cost of district, county or ot,her local chlld.wel-, fare services In areas predominantly rural and In other areas of special need; ahd as may be determined by the rules and regulationsof sald'state Department;and i

“(3) DeveloQlna such plans as mav be.fotid'

necessaryto effectuate the services.contemrJlated in this SexIon, and to com~lg with the rules and -- WC reoulrementsof the Children's Wlre'&.i.f

the Used -- -- States DeQartmentof Labor Issued and Qrescrlbed

- -2501-Hon. John Winters,Page~8 opinionNo- C-528

&I conformlt~

with, and &virtue of the Federal Social Securs Act as ameaec l(corlng added for emphaslr

The State &+piWtment of Pibllc Welfare IS ab30 designated
as the State Licensing Agency for children'sfacilities, Including

Day Care Centers,and Is authorizedto set up standards

and promulgate

rules and regulations for the admMs, trationof the LicensingProgram. See'Sectlon8(a) of Article 695c for specificreference.

House Bill No. 12, Acts of the 59th Legislature, Regular Sessioni 1965 (the GeneralAppiqrlatlons Act for the blennlum beginning

September1, 1965 and ending August 31, 19671, appropriates

the Federal funds and stipulatesthe conditions under which suph fundsmay be expended. Reference Is made to Article

V, Sections27 and 28 of said General Appropriations Act which provide as follows.

%ec. 27. FEDERAL FUNDS APPROPRIATED FOR USE. & funds receivedb the ag from the.

IF-- encles:oftpc State named In this

-- nlted States Governmentare hereby a rlated.~ to such agencps for the purooses s which te grsnt. alloca Ion, aia, orp aymentwase, sub-~. the provisionsof this Act. Wlthln%ilrty (3O)'d&k

i

. ’ '_ ,afteE

the receipt of any such Federal &r&t& &.lo-&tlons, aid or payments,.the amounts thereof and the purposes.for which they were made .shallbe epqrted to the Qovernor and the Legislative Budget Board. fop, emphasis) (Underscorlng'added

!%ec; .28. #EDERAL &Pl!RAti 4ND AC+-. :None .of $&Federal aap~rop -- Mated for use by the terms of. / this.Actx & -- exoe nded pursuant.60a contract or. agreementwlth the Feder 'alQovernment

unless.-=&until
.a appropriate

State agency haS filed as.of such contractor BP:

rea ;; --recordinjwith thaew of State for - Provlded~,

however, that copies of research contra&.classlflid In the. Interest of National SecurltY"'

shall not be flled,..but In ,lleu

thereof &..statx?iuent that' such &'c&tract has been made shall be filed.?... (Under- ~scohg 'added

fo+.empti&s) ,. ~'

From y&r letter,you advise that'kver since the enktG ment of.Sen#e Blll~ No: 118, Acts of the 52nd LeglSlatUre9 RegularSessioq,~lg51,,your Departmenthas corii3lstently corn-- plied wlth'the.

provisionsof,thqt law @s wellas~the provlslon;s

as:&ontalned

4.n..the tkneql, Appr6prlatldns.Act pertainingto~$he '$llj$g of federal-cotitbacts;: It further

. i. $502; .:Hon. John.Wlnteersi Page. 9 Opinion No. c-528

appearsthat The:.State Plan for Child Welfare Services which was developed by your~lkpartment was approved by the Department-of Realth, Education,'and Welfare,United States Children's Bureau, and all subsequentamendments.thereto have been filed in accordancewith the above cited provisions of,the law. The curzent~officlal

State Plan for Child Welfare Services, was filed In the,Officeof the Secretary of the State of Texas op July13, 1965, which is, In essence, the contractualagreement between the State Departmentof Public Welfare an'd the Department of Realth,.Educatlon and Welfare,'

United States Children's' Bureau Por.the operationof the Child Welfare Services Program in this state; It containsprovisions In relation to Day Care AdvisoryBoards or Committees. The structure,need and functionsof the Commltteeare evidenced in Item (bj of the Annual. Budget.Narratlve,

effectiveJuly 1, 1965, B. pg. 8, "State Plan for Child Welfare Services,"covering the federals fist+ yea.z.endlng June 30, 1966, from which we quote:
"(b) A Day:Care Advisory Committeet&~r;t;~eDe~etment of Publlc.Welfare

has been formed. used.for~

consultation

and advice In various ways during the year. The members are considered. a representative group from the point~.of view of geography and individuals concerned~.with

day care. The State Departments of Realth anff Education are represented. These- is a high concerii

; tratlon of perions with background~trainlng In presch,ool educati,?n.

"

"The Day .&re Advlsky CommItteemeets on a,quarterly basisin the offices of the.Department of Public Welfare, Austin, Texas. The major focus of.the commlttee-1s to evolve guides regardlng.w'ays In which the Department of Public Welfare~cari better utilize existing day cw services and encourage development of other public and private day care services where gaps exist. Some of the.lssuesto be studied are:
“(1)

“(2)

"(3) Current observations and .attitudes

about day car&as seen by Commltkeemembers.

Present status of the Department's role In the extension and strengthening of day care services. Relationshipand use of existing voluntary non:profltday care services and commercial day care facilities.

,-2503-Hon. John Winters, Page 10 OpinionNO. C-528

“(4) What are the gaps In day care services. If any, and if there are.gaps,what are the solutions? “(5) zkg;sof,khe non-profitday care

. : "(6) Extensionof~training resources on a .State-wide

basis for day care personne!.."
Provision is made in the State Plan for meetings of the Day Care Advisory CommItteeon a quarterlybasis In the office of the Departmentof Public Welfare In Austin, and for participation

of representatives of the AdvlsOry Committee In other meetings, some of which could be held in Washington, D.C. upon call by the United States Children'sBureau. It would seem that as a practicalmatter, meetings at.least on a quarterlybasis are'essential If the Committee Is to function
on an effectivebasis, and members must also be permitted to participateIn meetings on a national level lf~ Indicated.

Item 7, Subitem (7) appearing on Bi ,Psge11 &f+& State' Plan definitelycommits the.Department to pay such expenses and 'provides

as follows:
"(?) Advisory CommIttees2 Fe’deral '&da till be used to pay the expenses of the Day Care Advisory CommIttee' .to.the State Departmentof Public Welfare to attend

_ quarterlymeetings .for the p oses of carrying lout the functionsw.stated'ln.5(b above. Delegates "p from the~Day Care Advisory Committeemay also be sent to state-and/or

national day care meetings to gain l&wledge in behalf-..of the Department of Public Welfee~for the extension-andstrengkhenlng of day
care services.;

,Xt~e~expenses

may Include travel,per diem and/or registration. fees."

We observe that this statute was enacted for the protection of chlldren:andfor the public welfare and as such should be given a liberal construction, since in rts observances the public 1s held,to.have.sn Interest.'.

Small v. State, 360 S.W.2d~443...(Tex.Civ.App., 1962, error .ref.).. Such general statutesmust be accorded a liberal constructionand given the most comprehensive applicationof which It Is susceptible to 'effectuate

-the-legislative

object or public purpose and to promote t@publl$ interestandywelfare, 53 Tex.Jur.2d298, Sec. 194; Sec. 203, p. 309, Statutes; .Friedman v. American

..:T2504-Hon. John Winters., Rage 11 Opinion.No.C-528

Suret?i Co. of New York,.137 Tex. 138, 151 S.W.2d 570 (1941), holding that unemnlosmentand nublic welfare laws are legltlmate p&+oses within-thepowers of the administrationofgovernment. Under this construction, not only all powers and authorityexpressly granted will be upheld, but ally those which may bereasonably inferred or impliedare to be read into such a statute.

We are unable to find any law which prohibits the state Departmentof public Welfare from appointingan Advlsorylloard
or Committee of Public Welfare, such as a Day Care Advisory CommIttee,

nor'any law which Is in conflictwith Section 4 of, Article 695c, which expressly authorizesthe establishmentof AdvisoryBoards of Public Welfare. Construingthe statute so
. . asto give it the broadest or most comprehensive application 'of which it is susceptible, as we must, we hold that it was unnecessaryfor the statute to enumerate specificallythe various types of committeeswhich are authorized to be appointed..

The statute Is sufficiently comprehensive,

and the legislativeintent therein sufficiently clear, to imply the power and authority for the appointmentof the required AdvisoryCommIttees or Boards for any phase of such public welfare,the responsibilityof which is placed In the Department of PublSc Welfare, as covered and set out in the statutes. The.general

wording in the statute, construedae a whole, empowersthe Commlsslonerto aPpolnt such advisory boards or committees

for such purposes as are reasonablyappropriateand essentialfor the accomplishment of,the purposes of the Welfare Act In the absence of any other conflictinglaws on the.subject. For ln broad general terms The Public Welfare Act authorlies the Departmentto performany and al1 acts not Inconsistent rrith the law for the'purpose of carryingout the provisions. .ofthe state and federal laws authorizingthe Public Welfare. *wpama in Texas.

We are unable'to find anything In the Texas Constitution ;whichwould prohibit such a construction of the Act aswemake herein; Section 51, Article III of the Texas Constitution,

.. Prohlbltlng

the Legislature from making any grant, or authorising the same,.of, public moneys to any Individual,aseoclation of ~lndlvlduals, .munlcipal.

or other corporations,Is not' given a strict applicationbut Is held to be Inapplicable wherea public purpose for the expendltures.ls present. State x. Cl m 160 vex. 348~331 S.W.2d (1960); Brown y* Calveston,97,Tex. 1,'.75 S.W.2d 488 (i903 %a 37.s.W.2d 291, afflrmed~, 123 Tex. 39, 6

Blal;asvW

F
lo33 (1931);Allydon Realty Corp. v. Holyoke HouslnR Authorits 23 N.R.2d 665 (x&ss.SuP.Ct.1939); Attorney General Opinions C-342 (1964) and c-464, and authoritiestherein cited. -2505-Hon. John Winters,Page 12 Opinion NO. C-528 .'

Your first and ,fourth questionsare thereforeanswered "Yes".

Your second Inquiry Is also answered in the affirmative. Your Departmentis authorizedto pay per diem and travel expenses of the Committee members out of federal funds made az;vaAle to the Departmentfor the extension of the Day Car,

As previouslyobsemred,the appointmentof the Advisor; CommitteeIs mandatoryunder the statute, and under Sect. V, Section 27 of the General !Ipproprlations Act (House Bill No. 12, Acts, 59th'Leglslature, Reg. Session.1965). the funds received from the federalgovernmentwere expressly appropriatedto the various Departmentsfor their use and for. the purposes for which the, federalgrant was made to the state. It is well-settled that the statute must be **COnStrued** as a whole and with reference to the other statutesboth state and federal,and general system of legislationof which It forms a part, giving full recognitionto the legislative .intent.

-53 Tex.Jur.2d180, Statutes,~ Sec. 125. Construing the statute In such light and-giving it the required liberal Interpretation,

we conclude.that

the' authority to pay reasonableand necessary per diem and travel expenses of the cattee membersmust be held to have been conferredas a reasoriable

and necessary incident to',committee service. It would bi an unreasonable and unduly technical and harsh., i construction to expect cltlcens~from various parts of the

- : state to expend their own monies for such out of pocket expenses. Being wlthln the-general-authorized purposes, the -statute

was not required to-specifically &nunerate these 'particular

purposes In order to authorize the same. .lhe.~ general purposes are broad and comprehensive enough-to atithorlze

theses necessarilylmplled:andIncidentalexpenses, which are dlstlngulshable in law from salary or compensation,
as Is herelnafternoted.

Your third questionasking whether employees of other state departments

may serve on'the Day Care Advisory CommIttee without jeopardlzlng.or loslng.thelrsalaries 'from the .other state agency la llkewlseanswered ttyescr.: It Is: importantto observe first that the membership on-the Advisory Committeeis, 'not made an offfce or position of proflt~ or~en!olument,under the state or federalgovernment..It.provldesfor.no salarJr or compensatlonj

which ls:.to

be.dlstlngulshed

from out-of-pocket ;travel;:

sixbsistence,.and

other such per diem expenses/the 'payment.of

whlch:maybe properly authorlzed,bylaw to state .&nploye& without violatingany constitutional provisions; In&m&h as ;compensatlon is heid to.mean ~sal,ary. Terrell'v.

-~. "Kingt::118.Teirci~

52371 ’ 241; i4 s.W.2d .F; 791 .(192g); State v. :

-2iO6-Ron. John Winters, Page 13 OpinionNoJo. c-528

Aronson 314 P.2d 849, 85 (Sup. Ct. Mont. 19%); Kirkwood v. Soto, Cal. 394, 25 P. 288 (1891); McCoy v. Randlln. 35 S.D. ml53 N.W. $1 (1915);MilwaukeeCo. v. Halsey,g14~l~l~~a~, 1% N.W. 139 (1912); Treu v. Klrkwood,255 P.2d 40 sup.ct. 1953). It would not be an "office of profli or trust;' under the Constitution. as in Sect. 12 of Art. 16, or "civil -_--- office of emolument"under Sect. 40,,of Art. 16, or "office or ~~ltlon of honor, trust, or profit under Section 33 of Art.

.
We also hold that the place of membership on the Advisory Board or Committeewould not rise to the dignity of "any other office or position of honor, trust

. . . under this S~tate or the United States. ; ." within the constitutional meaning of such terms In Section 33 of Article 16, Texas Constitution, which states In part:

i

"The Accounting Officers of this'state shall neither draw nor pay a warrsnt upon the Treasury in favor of any person, for salary~or~compensatlon as agent, officer, or appointee, who holds a?t.the,sametlme any other office
or position of honor, trust or profit, under this State or the United States, extG@t as prescribed in this Constitution.

. . ." (emphasis added)
This Se&ion was notincluded 5.n the Constitutionof 1876
as a safeguardagainst a recurrence of the evils and abuses of the 'carpetbag"

era, since It made Its first appearance In the Constitution

of 1869, a constitution drafted by Reconstruction' Republicans,

and its policy reasons are at best conjectural. See Vol. 43, Tex.Law.Revlew, p. 951; Tex.Const.Art. XII, Sec. 42 (1869).

The only policy basis for the section has been stated to ::.~. be that of lnaurlng full value for state services rendered In the payment of'salary or compensation out of state monies. Thus the safeguardwas aimed at preventinga person from hold- .lng at the same time two state offices or positions; or a state and federal office 'or position, the effect of which Would cause that person to divide his time and fidelity,'to the detrimentof his state service. See Attorney General @Inion No. 0-2607 (1940); ,Vol. 43, Texas Law Review, p. 952.

In construing the'meanlngof the Constltutiohand statutes,' a court will never adopt a construction that will make them absurd or ridlculous.orone that will lead to absurd conclusions or consequencesif the language of the,enactmentIS
-2507-Hon. John Winters, Page 14 "opinion NO. C-528

susceptibleof any other meaning. 53 Tex.Jur.2d241, 243, Statutes; Sec. 165.
Furthermore,

wherever.posslble, that construction shall be adopted which shall promote the public. Interest In accord with sound economic or governmentalpolicy. 72 Tex. 242, .ll S.W. 1029 (1888). State v. DeCress

Generally;In arrivingat the meaning of the Constltutlon;
we find It should not be given a "narrow or technical con&-u+ tion" but It Is to be given a "liberal meaning In order to effectuatethe purpose of the provision of which It IS a part" and 'wordswill be consideredto have been use.d In their natural-sense

and ordinary signification, unless the context :lndlcatesthe contrary." 12 Tex.Jur.2d 362-363, Constitutional Law, Sec. 14; Sec. 16, p. 364, and cases therecited.

The words in the phrase "Office or position of honor, trust, norprofit" are each words.havlng a meaning ascertainable‘ by reference to the other words with which they.are associated under the maxim, noscitur a soclls. 53 Tex.Jur.26221, Statuted Sec. 154.
Thus, unless it is an office or posltlon'ofhonor or trust within ttie

sense intended or meant, by the Constitution, a 'Stats i employeemay serve in such a capacity and still draw his salary from the Comptroller.

The words ?offlce or position of.honor or trust" as used in Section 33 of the Constitution should be held to have been used analogously;.snd as'havlngthe sqne chsracterlstlcs and general though not i'dentitiaj. meanlng;,when

given a.practiCal, natural, -ordinary, and reasonableconstruction. Webster's Third New International Dictionary 'p. 1769; Black's Law Dictionary,.&th

Rd., nPosltlon;" p. 1234, 33 Words & Phrases,p. 5%.

and cases there annotated. The authorities hold that a vposition'!

is analogous.

to an "office" In that the duties that pertaln.to it are permanent and certain. The same essentials,attributes, and characteristics arepresent lnsof~ asthe duties ares

governmental: Frajler v. Rlmore, 180 (petit232;'173 Siw:2d 563, 565;. Fredericksv. Doard of'Healthof Town of West Hoboken, 82 A.528, 529, '82 N.J.L. 200; Rlsle v. Board of.Clvj.1

Servlce~

Cori@'s.

of Cl htyvof~~dAr$e~+ 2d 167, 16% 60 Cal.App.2d32;.Elurr, P Freeholder8of Bergen County;Sup.,'163-A. 555, 556, 110 N.J.L*i 9.
An'"bfflce~'~means "place" or "position"and they have .been held',to

be~substsnt%.ally

analogous and Interchangeable _~ . ., -2508-Hon. John Winters, Page 15 opinion No.~ C-528

as understood in law. "Office 29 Words'& Phrases,p. 270, under

-- Place or position";and 1965 Pocket Part pp. 97- 98 and cases there annotated.

As stated in 22 R.C.L. 383. Sec. 1.6, Public Officers,

"Constitutions

and laws sometimes contain provisionsapplying to offices of trust or honor and offices or places of trust or profit. The line between 'offices' and 'placesof trust or profit' within the meaning of such provisionshas not been clearlymarked, and they may be considered
as approach@g each other so closely that they are In all essential featqres identical. A place of trust or profit is not, however, Identical .wlth

an office,yet it occupies the same general level in dignity and importance.

. . .'

We have, therefore,~heretofore correctlyheld on this subject in Opinion No. O-5341, dated July 19, 1943, that there

- fs no mz$terial;

legal dl~t~nctlonIn meaning between the term offic0 and po$ltion, and that,asused.in our Constitution, ,z such-"posltion'

or "office"

means that the holder thereofmust exerclse~

some governmentalfunction,or be the de@osltory of
some sove~lgnty of the sta$e.'or t:e United States before It l%%esto .the

dignity of an office under the state.,or United Ther& must be delegatedto the person holding Such "OffI&" some of the sovereign functlotis of the state -orthe Utited States Government.

We held'ln the Opinion as follows:

"There are severalpersuasive,though not conclusive,characteristics, oft ~&hat constitutesa public office; or to express It In another way, what constitutesholdlng an 'office

under the U&ted States.' Wee mention B few: Tenti and duration, oath of office, officialbond, etc. But one indispensable

characterlstlc,

as the
cases hereafternoted affirm, is that the duties performed shall Involve the exercise of sovereign power, whether great or small. Our ownsupreme Court, in
a comparatively

early case,-Kimbrmh v. Brnett, ,93

Texas 301, 55 S.W. 120, quoted wi~vio~pi?oval

Mechem on Public Officers as : -2509-Ron. John Winters, Page 16 CplnlonNo. C-528

"'A public offlce Is the right, authority, and.duty created and conferred by law, by which, for a.givenperiod, either fixed by law or enduring,at the pleasure of the creatingpower, an Individual1s Invested with some portion of the sovereign functionsof the government,to be exercisedby him for the benefit of the public."'

., In the above Cplnlon.No. O-5341, and from the authorities
we found that "office"had a definlte,legal meaning In the
sense employed In the Constitution:

"'The term "office" implies a delegation of
a portion of the soverelgn power to, and possessionof, It by the person filling the office; a public office being an agency for the state, and the person whose .dutyit la .to perform the agency being a public officer. The term embraces the.ldeaof tenure, durzitlon,

emolumentand duties, and .has .respect

to a permanentpubllc,trus$to be exercised ln'behalfof government,and not 'toa rqerely

transient,occaslonalgr. incidentalemploylnent. A person --'the ', ~ervl~ of the government who -derives

hls~ posljzlon

froma du&y and legally authorized election or appointment, whose duties '&re

.. continuousIn their-nature and. defined by .~ rules prescribedby government, and not by : contract, consistingof the exercise of I importantpublic powers, trusts, or duties,
-asa part of the regular admi,nls~tratlon of government, she place and the duties: remalnlng, though the Incumbentdles.or 1s. changed, every office In the c~nstltutlonal ieanlng of.the tern! implying an author19 to exercise some portion of the sovereign power,.eltherln~.maklngi exeautlng Or administeringthe laws. M&hem on.Publlc Officers,:

0.179. "
The recerit~case

of Wlllls,v.~~otts, 37f~sYW.2d 622 (19641, by the Supreme C&t.of ~Texas~.construing Art.:3, Sect. 19, ad Art. 11. Sect: 5 Of the Constitution, held that a City Councilman'of ihe C&y-of .fi.z,-Wo&h,held an~'Iofflce~under

th& State.' Utlliz,ing

the reasoning of the earlierde~isl&is, the Court's declslon.is~ln~harmony~wi~th~'our~~lnlon and .notIn conflict with it or the distinctionsought to be made. ..~ 72510-Hon..

John Winters, Psge 17 OpinionNo. C-528

Those authoritiesso coiistrulng the meat&g of."offlce"
or "position"

as comprehending

contlriuous

performance oft

defined permsnentpublic duties, compensation, tenure,.

exercise of SOverelgnty,

and other essentialrequisitesare In accord snd are thoroughlydiscussedand briefed In our Opinion O-5341. See Witkowsklv. Burke; 65 A.2d 781 150 Ksn. 630, 95 P.2d 281, 284 (1939 f 1949); Sowersv. Wells, ; .Abbott

v. McNutt, 218 cdl. 225, 22 P.2d 510 (Zg33),89 A.L.R. 1109; Howard v..Saylor, 305 Ky. 504, 204 S.W;2d 815 (1947); United States v. David Mouat, 124~U.S. 303, 307, 31 L.E& 4b3 1888 ; People ex rel Attorn_er 14 P. 853 1887 ; rr.n me ~oe's In Re. Wheeler.

Mallory, as Public Adm'r. v. Wheeler,

S.E.2d 757 (1940); < 130 N-i. 97 (1912);Patten 8 wherein the Supreme Court of Georgia approved of a,state employee (member of the Highway Board) holding at the same tlmeB position as a niember of the Advisory Committeeof the Atlanta 'Agency of the ReConstructlop-Finance Corporation,

the Court holding that his-office (lls not an office of profit or trust under the Governmentof the United States"; HartIRan v. Board of Renents of West VirginiaUniversity, 38 S.E. 698 ('1901); Hirschfeld.Commonwealth ex rel Attorney General, 76 S.W.2d .%7 (w:1934);- State ex rel v. Hawkins, 257 P. 411.( 1927), 53 A.L.R. 583' and Ki~ston.Assoclatea~v.La Guardia, 281 N.P. Supp. 390 2X935),wherein It was held that members of the A~QE% Committee on Allotments, tcreated:by

the President of

., were not holding an office of honor, trust, or emolument

under the-government of.the United States."' The .$urt said:

"'C'learl?;

the members of.the Advisory Committee on Allotments possess none of the powers of the sovereign; They perform no independent governmentalfunction. Such functlon.3.n

general is either legislative,judlcla& or executive. It Is too plain to require discussionthat' the Advisory Committeeexercisesno legislativeor judicialprerog&lves. It appears to be fairly evident that It IS&ewise possesses.no

powers of the executive. The CommItteethus lacks the most. &o&&t cha@acteris$ic or attribute associatedw%th the Idea of publlc~ office, namely, the right to exercisti SOme part of the power of the sovereign.'" Opinion O-5341, of July 19, 1943, that 8~ Mstrlct Attorney could receive his salary and also serve as Chairman of the Local. Chapter of The AmericanNational Red Cross, a Corporation

-251!-Hon. John Winters,Page 18 OpinionNo. c-528. i

charteredby Congress, because the latter was not an officeor position under,theUnited States, Is consistentwith our earlier CplnlonNo. O-5314, of July 2, 1943, holding that a state or county official could not be excluded from drawing his salary while serving as a member of an advisorybosrd for registrants,

the latter not being a position of honor, trust or profit under this State or the United States ,wlthin the contemplation

of our Texas Constitution. i'

Our still earlier OpinionNo. O-4458, of April 8, 1942, holding that a state employee could serve without loss of salsry as a member of a~CountyTire Rationing Board for'the
same legalreasons Is llkewlse consistentwith the above Opinions.

Our earlier and thoroughlyconsideredOpinion No. O-4313, of Jan. 24, 1942, written by gollie C. Steakley,now a member of the Texas Supreme Court, Is likewise consistent with the above opinions ln.holdl "B that a.8tat.e

employee.(member

of State Board of Education could still draw his salary .aud
serve on an Allen Enemy Hearing Board, created by the federal governmentthrough the U. S. Attorney-General, paying only. nominal compensation but requiring the member to take an.oath; The Bomd appointmentwas temporary, 'forsn lndeflnlteterm, with only occaslonal meetings and sporadic activities. It was merely a fact finding and advisory admlniatrative Instrumentality,

which could neither make norenforce deciel&& .Weexpresslyheld that membershipupon such a Doard, which

_ would be presumably identicalto an Advisory Doard or Caamrittee; did.not constitutethe holding or exercisingof.an offlae of trust, honor, or pro~flt under'the'unlted

States. Wethere held that~"it does not constitute a 'posltlon',as'that erm was Intendedby the Frsmers of the Constitution."

The precise questionhas still never been determined by
a Texas court but other'jurledlctions are In general accord with our clted.hol.dings.

In McIntoshv:Ifutchlnson, 59 P.2d 1117.(1936),the Supreme Court of Washington held thata State Senator. could Supervisor" still draw his salary and serve as a~"Dlstrlct of the Federal Works ProgressAdministration, which was not deemed to be the acceptanceof a "civil office," cltlng .Bexney v. Hawkins, 79 Wont. 506, 251 P. 411 (lg27), 53 A.L.R, 583, as to the meaning of the term 'office," to;wlit:
"After. an exhaustiveexaminationof the authorlties,..we

hold that five elements are~lndispensable.ln.any position of public employment,In order to make it -i512-~lion; John Winters;'.Page 19

.. ..,OpinionWo. C-528

a publYC office of a'clvil nature: '(1) It'must'be created by the Constltutlon or~by the Legislatureor createdby a '. municipalityor other body through authority conferredby the Legislature; (2) it must possess a delegationof a. portion of the kovereign power of goverrqent,to be exercised for the benefit of'the public; (3) thepowers conferre'd,

snd the duties to'be discharged, must be defined, directly or lmplledly, by the legislatureor through leg&slative authority; (4) the duties must be performed Independentlyand without control of a'superlorpower, other than the law, unle&,they be those of an Inferior or .subordlnate

office, created or authorized by the Leglsiature,.and by It placed under the general control of a superior officer 'or'body; (5,) hit nqxst have'some permanency and continuity,and not'be only temporary or,

occasional. In addition,
: in this state an 'officer must take and

. . ' ,file'anofftclal oath; hold a commls~slon

or other wrktten authority, 'and give' an?

.. officialbond, if.the latter be required - -by proper authority." - The Court concluded that the Senator was not appointed .to an office since "the-g$eat weight of authority well supports the.necessltyof meetingall of the .cqndltions laid .down

by the Montana Courtand.

. . it $8 not made to appear that these conditions;'or

any of them;have been here met

. . .".

'In accord and Involving similar questions and constltutlonal prohibitionssre State v. Corley,. 172 Ai 415, (Dsl. 1934); 'Curtin v. State, 214 P. 1030 (Cal. 1923); Mulnlx v. Elliott, 156 P., 216 (Colo..x916); State v. Jo- 78 So. 663 (~a. 1918); McCoy v. Roard of Suoervisors, 114 P.2d 569 (1941), .cit Carpenter 135 Tex.'413, 145 S.W.2d 562 (1940 , for the.necessityof taking a liberal vlew.~towardthe'.encouragem&t of such ena&ments t&t.their protectivepurposes~ "may be fulfilled

without undue.lmposltion of'constltutlonal

1Smitations
or hlnderancethrough narrow judicial construction."

In Parker v. Riley, 113 P.2d 873, 875-876; 18 Cal.26 83 (1941),134 A.L.R.'1405,the California Supreme Courtupheld a statuteproviding for ,the creation of the CaliforniaComm$ssion
on InterstateCooperationand providing for members of the legislatureto serve thereon. Although the Constitution' -25X3-Hon. **John** Winters,Page x) Cpinl&No. **C-528 :.** 

expressly

prohibitedthe '&embers from accepting "any Office, trust, oti

employment

under this state," the Court held that the constltutlonal,mesnlng of- “ office” or. “ trust” ‘wawnot applicablethereto as follows:

'*It may be noted, however, that the pds~flonscreatedby the +tute here attacked lack certalri elementsusually associated

with an "office or "trust

. Thus, It Is generally said that an office
or trnat requires the vestlng.ln-an' individualof a,portlonof the sovereign powers of the state. (Citationof authorities) The positionshere created do.notmeasure up td so high a standard. They involvemerely the interchangeof. infopnatlon, the assemblingof data, and the formulatlon.of proposals to be placed before the Legislature. Such tasks, do not require the exercise of a tart of the .'

. sovereign

power of the stat&.'
The Riley case doctrinewas recently recognizedand reaff&ued by the Supreme Court of Califormia~ ln State v. Aronson 314 P.2d.849,856-857 (1957)..li.aCcord, see also '&es le v. Barrett 15 N.E.2d 513 (Ill. 1938); Johnsonv. T)(Ga. 1919); and-ReadlnR **hll, .52**  P.2d 155 Adz. 1935 , for the. proposition-t& certain :eesential

elementsare required to constitutesn Icofflce" oi?"'posltlon"

as used in such constitutional sense and:the ~ineaning,of

these terms as so used do not precltie the 'acceptance of such duties and serVlce involvinghonor &nd%rus$ and fran which sny citizen could n&escap& without evad$ngbl8 civic or patrioticduty to aid his government or coun!rY in’ .tlmes of ten@orsryemergencies.

The terms "office"or '$osltlon"the&fore'neces&irllY implies, smongother eiements, compensation,' stability, dui-ation, perman

ency, continuity, taking oath and giving bo&t and the~msklngand administering of governmentaldecls-ions‘ independently

and wlthout Control of a super&orpowerti etc..--

.. The &@&M-Sal absence.ofthese essentiali appertaining to

., membershipon a Day Cai-e AdvlsorJr.Ccmmitte& frees a state emplcrgee

.fiom any constitutional inhibition to.such service' while continuingto draw his &ate ssla??yi

In a&wer to goW fifth questlon,'that is; 'doss

iout? Department

have the authorlty.to pay the per diem and $r&vell expense8 solely out of federal funds Upon a finding of-. .necesslty

that such camnlttee members attend the meetings ~. **-25 14-** for the nwtxe of .csrrjklng out the pr&r,iri~lons of the **Acts,**

_ ws hiiye

conc$ded fm* ‘l$ m&y be answered in'the afflrma- ' t1v.e. Under the gerieral st+$ut~ry.scheme,

and plan of operation,ws holds that under the'

federal and~ktate laws he‘&- inabt&e disouased,the power Is Inherent ln‘the'Dspartme@t,of F?ibllc Welfare to t@ce the. twxessary steps to comply wltih.+lts authokrl d contract+ilagreementrequired to be filed tith the Se x%fary of State'before. the fed&raLm&a can bs 0". expen,&%qd thereafter'to use and expend such. funds for the' pUrp1" 8.,fix

tit& they were @lotted to the state without Q% the ni3~sslty ef a'speclflcenumeratfon In tik statutes. Ln this connectl~, we. heretof&e held In Attorner%eneral's Cplnl~ C4K) .(Msy 12,.1965) that~'travel'expeksek of unpaid persm1, such as committeememb&ti.tihlle.&sged in the perfoMauce of the .offlc.lal business of‘the comm%ttee, can Abe pald'out of.fe.deya& fur@ received by the State of Texas by vlrtue of the contractual agreement between the state and the federal government,,The factual situationpresented i" that:'Qjlnlon

Is an+ogous to:

the one here presented and Is subijt8iit&ally

the &me. The state and federal government 'we* authprlzed to enter into the contractualarrangement. We we -ware of any law of this state which .worild prealude .' ~.the pay&at ~~'$iioh.per-diem or travel expelises out of the federal mds tib'a~zkprlated In such general.

terms comprehetis&Pe

~ei%@ghto.ln&lude such purpose tid under'the s,tat&d clrcumsttiees.

SUMMARY~ ------- _i ',
The State.Dspartment of Public Welfare. Is authorized to set up a Day Care Advisory Committee consisting of representativesof, other State Departments or Agenclea. and,. representatives

of other profess$onaland civic groups for the purpose of complying with the federal requlrementxnade the basii3 for the Department'sreceiving‘ federal @nds far the lky Care Prog&m .ln the State of ,, Texas.

It is empowered to set up other types~ of Advisory Boards or Commlttees.ofPublic' Welfare (unrelatedto,Day Care Advisory ,~ Committees)

which are essential to the ~aacomplls~entof the other purposes of the. PuJ~lic Welfare Programs In Teias in accordance with the Department*8agreement with the federa& government.

-2515- :Hon. John Winters.PsSe 22 opihio" No...!528

It Is authorizedto pag per diem and travel expensesto the committee**members** out of federal fundsmade avazlable tQ the.Depar‘tment for the extensionof the Day Cat% Program. Employeesof the State Departmentsmay serve on the Day Care Advisory Ccmmlttee. without loss of salary from the other state agency, such membershipnot constituting 'an office or position of iionor, trustYor profit, under this State or the United St.ates" within the constitutional mean1 T of those terms In Section 33 of Article 1 of the Texas Constitution.

Yours very truly,

WAGGONRR

CARR

. Attorney General :

-APPROVED: 'OPINION CCHMITTEZ

W. V. Ceppert, ChaIrman Bob qowers Arthur.Ssndlin H. Grady Chandler Roger TJrler Marietta Payne
APPROVEDF'ORTREATTORNEYGENEEiAL BY: T. B. might.

.