The Attorney General of Texas 

November 12, 1979 

MARK WHITE 

Attorney General 

Honorable Craig A. Washington Opinion No. 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 Allgust Is, 1979, Governor Clements advised the 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 

and a Division, respectively, of the Texas Department 

of. Community Affairs.. . . mt is 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 Aging would be valid. 

The Department of Community Affairs was legislatively established in 

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 

p. 246 
Honorable Craig A. Washington - Page TWO (H+81) 

services for their citizens and in overcoming financial, social and environmental problems 

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 appropriate divisions of hi office.” V.T.C.S. art. 4413(2OU, SlO. 

(Emphasis added). 

The Governor’s Committee on Aging was established in 1965 by statute codified as 

article 695k, V.T.C.S., which has been since incorporated into the Human Resources Code, 

sections 100.001 - lOLO26, without substantive change. 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 which the legislature might have assigned directly to the governor or his office, 

it is legislatively constituted as an independent entity. 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 General Opinion M-1286 (1972). The pesiding officer serves in 

addition to thexe members of the committee. The committee is statutorily designated 

the state agency to lmndle federal ‘programs relatiw to the aging that sre not the specific 

responsibility of another agency. Human Resources Code S lOLO25. 

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

Senate BiJl 1251 naming tbe committee, along with a number of other agencies, as. one 

%onsidered to be under the control of tbs governor,” and allowing the governor to transfer 

any program of such an agency to any other spprcpriate agency in the executive 

department. Nevertheless, if the committee is anvappropriatev division of the governor’s 

office within the meaning of article 4413(201), no additional authorization is needed to 

transfer to the department the 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 independent of any 

other state officer, these functions cannot be diminished or subordinated without specific 

statutory authority. See Letter Advisory No. 2 (1973); &. Attorney General Opinion M-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 and administer 

all moneys entrusted to the department; he may assign fun&cm and duties 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. 

p. 247 
c . 

Honorable Craig A. Washington - Page Three (m-81) 

art. 44l3(2OD, SS 5, 9, lL As Governor Clements’ letter shows, his concurrence would be 

necessary to the executicn of any committee contracts 01 award of grants. 

This authority in the executive director of the department, if applied to the 

Committee on Aging, would conflict 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 disburse state funds appropriated 

for certain purposes, (5) to determine the amounts of state money distributed to 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 Community Affairs. 

But it does not follow that the executive director of the department is hmligible for 

appointment as presiding officer of the committee. The committee’s statute anticipates 

that the person appointed may already be an officer in another capacity, and it takes care 

to specify that the’ duties of the presiding officer in that event are to be considered an 

extension of the duties of the other state office. Human Resources 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, 59 S.W.2d 1080-(&.x. 1933). S& Texas Turnpike Authori 

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 department is complementary to 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 

responsibilities held by other agencies, and it is directed to cocperate with them, including 

the Department of Community Affairs. Human Resources Code S 101.025; V.T.C.S. art. 

4413(200, S 12. The presiding officer 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 and powers 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 Community Affairs 

or subject to the departmental statute. State ex rel. Brennan v. Martin, 51 S.W.2d 815 

(Tex. Civ. App. - San Antonio 1932, no writ). See Attorney General Opinion MW39 - 

p. 248 
Honorable Craig A. Washington - Page Four (MI+81) 

fl979); Letter Advisory Nos. 149 (19781, ll4 U975). z Attorney General Opinion H-727 

(l975). 

SUMMARY 

The governor may lawfully appoint the executive director of 

the Department of Community Affairs to serve as presiding 

officer of the Committee on Aging. The Committee on 

Aging may not, however, be transferred to the Department 

of Community Affairs. 

MARK WHITE 

Attorney General of Texas 

JOHN W. PAINTRR, JR. 

First Assistant Attorney General 

TED I,. HARTLEY 

Executive Asslstabt Attorney General 

prepared by Bruca Youngblood 

Assistant Attorney General 

AFFROVEDZ 

OE’INION~ COMMITTEE 

C. Robert Heath, Chairman 

David Bi Bra%+ 

Susan Garrison 

Rick Gllpin 

Bob Gammage 

Terry Goodman 

Wlllllm G Reid 

Bruce Youngblocd 

p. 249