Dr. Raleigh R. Roas, M. D.

Chairman Board for Texas State Iioepltals and Special Schools Austin, Texas Opinion NO. ~~-376

Re: Whether the Board for Texas State Hospitals and Special Schools Is authorized to supplementthe salary of the Executive Director of the Dear Dr. Ross: Board.

We quote fromyour request for an opinion as follows:

"ThisBoard has been attempting formany months to employ an Executive Dlrectos capable of carrying out the duties and policies of this Board. Due to the diverse duties imposedby law Inmanaging the State'smental hospitals, tuberculosishospitals and special aohoola, It haa been,lmposaible for us to find a person with the neoeaaary quallfloatlonsat the salaryauthorized In the current appropriation bill.

"Inaddition to the above, the Executive Dlrector is now chargedwith the new and supplementalduty of conductingan extensive research $rogram and operation of several outpatient clinics.

"In order for this Board to carry out Its responsibilities to the State of Texas and its patients and special students,particularly In the new, added and supplementalwork fields occasioned by the various outpatient clinics and research proo-amJ it Is essential that a person be employedwho is capable of directing these various affairs.

"A Texas charitable foundationhas expressed
an Interest in donating funds to the Board for theDr. Raleigh R.Ross, ': " page 2 (WW-376)

malntenanoe and operation of the research and out-patient clinicprograms, and wishes to stlpulate that the Board,in Its discretion,may use the donated funds for supplementingthe salaries of personnel In charge of these programs, if the use of the funda for this purpose would be lawful.
Yherefore, your opinion Is respectfully requestedas to whether or not'this Boardmay supplement the aalar

8 of the Executive Director from donated funds.

The Board is 'authorized by general statute to accept and disburse gifts fromprivate souroes. Article 693, Vernon's Civil Statutes,pertaining to the powers and duties formerly vested in the Board of'Contro1with respect to eleemosynary institutions,provides In part:

“8

. Itmay take and hold in truat any gift or devise of real or personal estate for the benefit of such institutionand apply the sameas the donor or devisermay direct."

This power Is now vested In the Board for Texas State Hospitals and Special Schoolsby virtue of the provision in Section 2 of Chapter 316, Acts of the 5lst Legislature,Regular

1949,whlch,reads: Session,

II *

. . Effective September 1, 1949, the control

and management of, and all rights,privileges,powers, and duties Incident thereto Includingbuilding, design and constructionof the Texas State Hospitals and Special Schoolswhich are now vested In and exercisedby the State Board of Control shallbe transferred to, vested in, and exercisedby the Board,,for

Texas State Hospitals and Special Schools.

. . .
In this opinionwe shallassume that the donations will be made to the Board in accordancewith Article 693. While this Article does not speolfloallyauthorize the Board to use donated funds for payment of salaries,we think the language used therein Is sufficientlybroad to glve such authorization, provided samedoes not contravenethe provisions of any other applicable statute.

We need not concern ourselveswith the question of whether the donated fundswould be subject to legislativeappropriation pursuant t,oSection 6 of ArticleVIII of the Constitution of Texas, forwe In fact have an appropriationwhich we believe Is applicable to the limited situationpresented by yourDr. Raleigh R. Ross, ?_ page 3 (w-376)

request. In the current Biennial AppropriationAct (Acts 55th Leg., R.S., 19571; ch, 385, p. 907), there is the followingprovision under the heading of 'RESEARCH,TRAINING, AND OUT-PATIENT FACILITIES":

"TheHospital Board Is authorized to accept any

gifts, grants, or donations, real property or facilities, for the maintenance and operation of the Research Facilities or Cut-Patient Clinics;and such gifts, grants, or donations are appropriated for the purposes forwhich the donor stipulates,except such gifts shallnot be used for traveling expenses of personnel employed at such facilities."

It is significant that the only restrictionplaced upon the use of the subject funds In connectionwith the operation of research facilities or out-patient clinics Is that such fundsmay not be used for traveling expenses of personnel employed at such facilities. Implicit In this singlerestriction is the conclusion that such fundswere appropriated for all other maintenance and operational costs,includlngthe payment of salaries of personnel connected therewith.

Chapter 4, Acts of the 55th Legislature,R.S., 1957, provides that the salaries of state officers and employees for the currentbiennium shallbe in such sums or amounts as may be provided for by the Legislature in the General Appropriations The current Biennial Appropriation Act sets the salary of iki*Executlve Director of the State Hospital Board at $15,000.00 for each year of the biennium. This fact alone, however, does not preclude the payment of additional compensation to the Director from gifts and donations. Attorney General's Opinion No. V-1476, written In 1952, concerned the legality of supplementing the compensation of the Comptroller of The University of Texas, from funds derived from gifts and bequests. Chapter 455, Acts of the 52nd Legislature,R. S., 1951, contained the same provision, applicable to salaries for the 1951-1953biennium, as Chapter 4 of the 55th Legislature, supra. The:General Appropriation Bill, then In effect, set the~'salary of*the Comptrollerat $l2,5OO.O0 per year. There ,wareother proyisions in the Act, which provided:

"The expenditure of the appropriations herein made and authorized, whether from the State General Revenue Fund, local institutional funds, or any other receipts and funds whatsoever, except bequests and gifts, shallbe subject to the followingprovlsions:

..

. . . "Sec. 24. Additional Salary Payments. NoDr. Raleigh R. Ross, page 4 (W-376 1

Institution of higher education shallpay in
excess of the salary rates specified for the ltemisedpositions In this Article, excepting only those which are designated as 'part-time.'" (Emphasisadded.)

The Opinion concluded,after considering the foregoing provisions of the Appropriation Act, tha~tthe Legislature intended to limit the amountsof money thatmight be paid as salaries to these full-time administrative officials from funds derived from any source except gifts and bequests. The Opinion accordingly held that the proposed salary supplementationwas authorized.

Attorney General's Opinion No. WW-211 (1957) concerned the construction of an item in the appropriation bill which authorized the Central Education Agency to accept gifts, grants or allotments from the United States Government and to appropriate suoh funds for the "specificpurposes authorized" by the Government or other donor. The Opinion held that such funds could be expended by the Agency as authorized by the Government or donor, and other provisions of the appropriation bill which limited the number of personnel employed in a particular category and set salarymaximums therefor, did not apply to the expenditure of such funds, so long as such expenditureswere in accordance with the terms of the colitract entered into 'betweenthe Agency and the party making the gift or grant.

We believe that the reasoning of the foregoing Opinion is applicable to your specific question. In appropriating gifts received for the operation of research facilities and out-patient clinics for the purpose for which the donor stipulates,-the Legislature has manifested a clear Intent that the funds so received and appropriated are In addition to and supplementary of the funds otherwise appropriated for such purposes.

One further statute shouldbe considered. Section 3(k) of Huuse Bill 3, Chapter 100, Acts of the 55th Legislature, Regular Session, 1957,provides:

"(k) No officer or employee of a state agency, Legislator, or legislative employee shall receive any compensation for his servicesas an officer or employee of a state agency, Legislator or legislative employee from any source other than the State of Texas, except as may be otherwiseprovided by law."

We have concluded above that the General Appropriation Act authorizes the use of donated funds for supplementation ofDr. Raleigh R. Ross,page 5 (m-376)

salaries In connectionwith research and out-patient facilities. If this authorization Is In conflictwith ChaDter 100. It is invalidas an attempt tomodify or repeal a general law. State
v. Steele, 57 Tex. 200 (1882); Moorev. Sheppard, 144 Tex, ‘I92S W 2d 5 9 V-1254 i1951

7 (1946);Attorney Ce 1's OpinionsV-412 and m-96 (1957). R%~er, we are of the that-this-Drovlslonof the-ADpropriatlon- Act Is not in conflict with Chapter 100.

The above quoted Section 3(k) is a part of the code of ethics for state officersand employees enacted by the 55th Legislature. follows: Section 1 of the Act states the purpose of then Act as-

"Section 1. Declaration of policy. It 1s hereby declared to be the pollcy~of the Leglslature that no officer or employee of a stateagency, Member of the Legislature or legislativeemployee shouldhave any Interest, financial or otherwise, direct or Indirect, or engage In any business or transaction or professional activity or inour any obligation of any nature which la In substantial conflictwith the proper dlsoharge of his duties in the public interest. To implement suchpolicy and to strengthenthe faith and confidence of the people of Texaa In their Government,there Is hereby enacted a code of ethics setting forth standardsof conduct to be observedby state offlcersand employees In the performance of their officialduties. It is the Intent of the Legislature that this code shall servenot only as a guide for official conduct of the State'spub110 servantsbut also as a basis for dlaclpllne of those who refuse to abide by Its terms."
Section 3(k) prohibits an officer or employee from reoelvlng compensation from any source other than the State of Texas, except as may be otherwiseprovided by law. Would the salary supplementation be received from the State of Texas,within the meaning of that phrase as uaed In thla section, "otherwiseprovld&d by law"? or Is the supplementation In either event, Itwould not be In violation of the Code.

The Board has'the discretion to accept or refuse private donationswhich are tendered to It. We may assume that the Board will accept donations only after due deliberationand determlnatlon that the source of the donation and the conditionsattached to itsuse would not be inimical to the interests of the State Governmentand the public welfare. The trust funds are held for disbursement on order of the Board and the donor loses all con-Honorable Raleigh R. Rosa, page 6 (w-376 1

troI over their expenditure so long as the conditionsof their
use are compliedwith. Our conception of the purpose of Section 3(k) 1s to prevent an employee from exposinghimself to obllgatlon to or Influenceby individuals

### orgroupswhoseInterests might conflictwith his fealty to the 

### Stateandto thepublic. In receiving the salary supplementthe employeewould be dealing solelywith the Board, and so far a8 he Is concerned the source of paymentwould be the Board acting as an agency of the State

By the donation the trust funds lose their character zi ,‘sgzte funds and become,publio fundsunder the direct control of the Stateagency administering them. See Attorney CeneralI s ;Elnlon

### v-1365 (1951). This being true, 

### it Isouropinionthat
e source of compensationwould be the State of Texas within themeaning and spirit of Section 3 (k). But if we arewrong in this, the paymentwould nevertheless come wlthln the exception as being “otherwiseprovidedby law.”

As already noted, therewas legislativeauthorization for the payment of salaries from donationsunder the law existing at the time of enactment of the Code of Ethics. The exception in Section 3 (k)recognized and preserved all those provisionswhioh sanctionedpayment of compensationfrom other
sourceso To our mind, this 1s the clear meaning of the exceptione It may be observed, further, that any other meaning would place the 55th Legislature In theposition of condemning
as unethical the acts of prior Legislatureswhich enacted theseprovisions. In adopting the Code of Ethics the 55th Legislaturewas not presuming to create a new and original concept of ethicalbehavior. The Code Is but an articulation of standards inherent in the duty of public employees to preserve the integrity of their employment. It is a reduction to written form of principles already embedded in the public conscience, so that persons less sensitive to thoseprinciples
or less responsive to the restraints of consciencewill know what standard of behavior the State demands of Its employees. It would require a much plainer negation than Is found In Section 3 (k) to say that the Legislature intended to condemn as unethical a course of conduct theretofore considered ethical or to forbid actswhich had been authorizedby prior Legislatures. The conclusion that the 55th Legislaturedid not intend In Chapter 100 to prohibit payment or supplementation of salaries from donations receivedby State agencies Is furtherborne out by the fact that the only restriction which the 55th Legislatureplaced on the expenditure of funds donated for research and out-patient facilities Is In the payment of traveling expenses.

We are, therefore, of the opinion that the Board may, in its discretion, supplement the salary of the Executive Director from gifts or grants receivedby the Board for the purpose of maintaining and operating research facilities. -- -

Honorable Raleigh R. ROSS, page 

### 7 (w-376/

and out-patient clinics,provided such supplementationIs consistentwith the purposes of such grants or gifts as specifled by the donor. The amount of such supplementationmay be setby the Board, but shouldbe commensuratewith the special duties performedby the Director In connectionwith the malntenance and operation of research facllltlesand out-patient clinics.

As ,youhave pointed out in your request, the Board Is confrontedwith the pressingproblem of obtaining the services of a trained and capable specialistwho cannot only accomplish the usual administrativeduties of his post, but who can also give special attention and effort to the establishment and mafntenance of recently authorized out-patient clinics and the Improvement of hospital research facilities. The executive chosenwill perform duties In connectionwith these clinics and facilitieswhich,under ordinary circumstances, would not be incumbentupon this position. He will not be assuming an additionalposition,but additionalduties, in this connection,will be transferred to theposition of Executive Director.

We wish to emphasize that the scope of this opinion is necessarily limited to theparticular question submitted, and the answer to said question is grounded upon statutory authoritywhich is not necessarily applicable to other posltions or situations.

SUMMARY

The Board for Texas State Hospitals and Special Schools may, In Its discretion, supplement the compensationof the ExecutiveDirector of the Board from gifts or grants received by the Board for thepurpose of maintaining and operating research facilities and outhpatient clinics, provided such supplementationIs consistentwith the purposes of such grants or gifts as specified by the donor. The amount of such supplementationmay be setby the Board, but shouldbe commensurateHonorableRaleigh R. Ross, page 

### 8 (WW-376)

with the specialdutiesperformedby the Director in connectionwith themaintenance and operation of research facilitiesand out-patient clinics.

Yoursvery truly,

WILL WILSON Attorney General of Texas



## 1, ;x,,

~.., P~C... e By onard Passmore Assistant iP:jl:zt

APPROVED:

CPINION COMMITTEE

J. C. Davis, Chairman

Cecil C. Rotsch

Mary K. Wall

REVIEWED FOR THE ATTORNEY GENERAL

BY: W. V. Geppert