# The Attorney General of Texas

November 12, 1979

MARK WHITE Attorney General

HonorableCraig A. Washington OpinionNo. MW-8 1 Chairman,Human

Services Committee House of Representatives Re: Authority of the governor to Austin,Texas 78769 restructure the Governor’s Committee on Aging, and related questions

Dear Mr. Washington:

On AllgustIs, 1979,Governor Clements advisedthe Executive Director of the Department of Community Affairs by letter of his intent to transfer to that agency the Governor’s Committee on Aging. In part, the letter reads:

It is my intent that the Coordinator of Aging and

the other persoMe of the Governor’s Committee on Aging function in all respects as a Division Director anda Division, respectively, of the Texas Department of. CommunityAffairs..

. . 

# mtis my intent that the

concurrence of the Executive Director of the Texas Department of Community Affairs be obtained with respect to the execution of any and all contracts, .-grants or other similar obligations between the Governor’s Committee on Aging and other parties; with respect to any and all expenditures of funds by the Governor’s Committee on Aging; and with respect to the formulation and implementation of policies of the Governor’s Committee on Aging.

You ask by what authority the governor might restructure the statutory Committee on Agiig, and whether the appointment of the Department of Community Affairs executive director to be also presiding officer of the Committee on Agingwould be valid.

The Department of CommunityAffairs was legislatively establishedin 1971 as the successor agency to the Division of State-Local Relations, Office of the Governor, ‘see V.T.C.S. art. 4413(201)3 Attorney General Opinion M-1265 fl972), to zit local governments in providing essential public

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services for their citizens andin overcoming financial, social and environmentalproblems V.T.C.S. art. 4413(2OU, SL See Attorney General Opinions H-1275, H-1276(1976). The governor is specifically auth&&d to transfer to the department personnel, equipment, records, obligations, appropriations, functions and duties “of the Division of State-Local Relations and of other appropriatedivisions of hi office.” V.T.C.S. art. 4413(2OU, SlO. (Emphasisadded).

The Governor’s Committee on Aging was established in 1965by statute codified as article 695k, V.T.C.S., which hasbeen since incorporated into the HumanResources Code, sections 100.001

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without substantivechange. Acts 1979,66th Leg., ch. 842, at 2333, 2415. See V.T.C.S. art. 5429b-2, S 3.03(4). Although the committee, like the Department of Community Affairs, performs functions whichthe legislature might have assigneddirectly to the governor or his office, it is legislatively constituted as an independententity. The governor is empowered to appoint the committee members with the advice and consent of the Senate and may, without the necessity of such consent, appoint a coordinator, other necessary personnel, and a ‘presiding officern (formerly chairman) to %lirect the work of the coordinator of aging and the committee.” See Attorney General Opinion H-248 (1974);Letter Advisory No. l21(1977). Cf. Attorney GeneralOpinion M-1286 (1972). The pesiding officer serves in additionto thexe members of the committee. The committee is statutorily designated the state agency to lmndlefederal ‘programs relatiw to the agingthat sre not the specific responsibilityof another agency. Human Resources Code SlOLO25.

The most recent legislature considered, but failed to enact, House Sill 2210and Senate BiJl 1251

namingtbe committee, along with a number of other agencies, as. one %onsidered to be underthe control of tbs governor,” andallowingthe governor to transfer any program of such an agency to any other spprcpriate agency in the executive department. Nevertheless, if the committee is anvappropriatevdivision of the governor’s office within the meaningof article 4413(201), no additional authorization is needed to transfer to the departmentthe wpersonnel, equipment,records, obligations, appropriations, functions and duties” of the committee. While the Governor has authority to transfer appropriate divisions of his office to the Department of Community Affair, we do not believe that article 4413(2OR provides authority to transfer a division or agency which has legislatively assigned &ties to be performed by independent state officers. Once the legislature has provided that functions will be performed by public officers who are confirmed by the Senate, who take an oath of office, and who are independentof any other state officer, these functions cannot be diminishedor subordinatedwithout specific statutory authority. See Letter AdvisoryNo. 2 (1973); &. Attorney General OpinionM-H91 (l972). -

Under article 4413(2OU, V.T.C.S., the director of the Department of Community Affairs, amcng other things, is to administer the week of the department andadminister all moneys entrustedto the department;he may assignfun&cm andduties to the various offices and **divisions,** reorganize the department, and loan or detail departmental employees to other state agencies or instrumentalities,or to local governments. V.T.C.S.

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art. 44l3(2OD,

SS5, 9, lL As Governor Clements’ letter shows, his concurrence wouldbe necessary to the executicn of any committee contracts 01awardof grants.

This authority in the executive director of the department, if applied to the Committee on Aging, wouldconflict with the statutory authority vested by the legislature in the committee (0 to adopt rules governing the function of the committee, (2) to delegate its rights, powers and duties or conversely to refrain from doing so, (3) to contract for the employment of elderly persons, (4) to disbursestate funds appropriated for certain purposes, (5) to determine the amounts of state money distributedto various agencies, and (6) to establish qualifications therefor. See Attorney General Opinions H477 (19741,

G644 (1966). -

In our opinion, the Governor%Committee on Aging, as structured by the legislature is not a division of the governor’s office that can be transferred to the present Department of CommunityAffairs.

But it does not follow that the executive director of the departmentis hmligiblefor appointmentas presidingofficer of the committee. The committee’s statute anticipates that the person appointedmay already be an officer in another capacity, andit takes care to specify that the’ duties of the presidingofficer in that event are to be considered an extension of the duties of the other state office. HumanResources Code SlOLOO3fb). Moreover, the presiding officer serves without compensation and does not occupy an office of emolument within the meaning of article XVI, section 40 of the Constitution. There is no orohibition aaainst such an arrannement so lone as the two oositions are compatible. iones v. Ale&der, 59S.W.2d 1080-(&.x. 1933). S& Texas TurnpikeAuthori

v. She erd 279 S.W.2d 302 (Tex. 1955). cf. Attorney General Opinion H-ll7 (19 ?GiiG$%s &ties). Although an incompatibility of separately delegated powers prevents their merger, the two agencies are not antagonistic so long as they remain separated. In several respects, the wcrk of the departmentis complementaryto the wak of the committee, and there is no necessary conflict between their roles. The committee is legislatively designed so as not to supplant or take over from other state agencies the specific responsibilitiesheldby other agencies, andit is directed to cocperate with them, including the Department of Community Affairs. HumanResources Code S 101.025; V.T.C.S. art. 4413(200,S 12. The presidingofficer of the committee, unlike the executive director of the department under the departmental statute, ,is subordinate to a group of senateconfumed officers - the committee - which has power to control his activities in directing the wmk of the committee and its staff. Although the possibility exists that conflicts might arise between his responsibilities andpowers as director of the department and his completely different responsibility and powers as presiding officer of the committee, neither position is related or subordinate to the other. Absent other facts, there is no apparent incompatibility such as would prevent the same person from holding both posts so long as the committee is not a part of the Department of CommunityAffairs

or subject to the departmental statute. State ex rel. Brennanv. Martin, 51 S.W.2d 815 (Tex. Civ. App. - San Antonio 1932, no writ). See Attorney General Opinion MW39
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fl979); Letter Advisory Nos. 149(19781, ll4 U975). z Attorney General Opinion H-727 (l975).

SUMMARY

The governor may lawfully appointthe executive director of the Departmentof CommunityAffairs to serve as presiding officer of the Committee on Aging. The Committee on Aging may not, however, be transferred to the Department of CommunityAffairs.

MARK WHITE Attorney General of Texas

JOHNW. PAINTRR,JR. First AssistantAttorney General

TED I,. HARTLEY Executive AsslstabtAttorney General preparedby BrucaYoungblood AssistantAttorney General

AFFROVEDZ OE ’INION~

COMMITTEE

C. Robert Heath, Chairman DavidBi Bra%+ SusanGarrison Rick Gllpin Bob Gammage Terry Goodman Wlllllm G Reid Bruce Youngblocd

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