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March 14, 1974 The Honorable Betty J. Anderson Executive Secretary Opinion No. H- 255 Texas State Board of Examiners Re: Application ofHouse in the Basic Sciences Bill 1, 63rd Leg., the 1012 Sam Houston State Office Bldg. Ethics Bill, to officers Austin, Texas 78701 ofan agency not named therein. The Honorable W. Forrest Smith Chairman, Texas Youth Council P. 0. Box 900 Dallas, Texas 75221 Dear Mrs, Anderson and Mr. Smith: Article 6252-9b, the Ethics Law adopted by the 63rd Legislature (Acts 1973, ch. 421, p- 1086) lists in its Sec. 3(a) as those who are required to file a financial statement “every [l] elected officer. [ZJsalarie,d appointed officer, [3Jappointed officer, ofa major s$ate agency, and [4] executive head ofa state agency . a .’ i”’‘Each.‘of these is defined in Sec. 2.

“Set, 2. Inthis Act:

“(1) ‘State officer’ means an elected officer, an appomted officer, or the executive head ofa state agency as defined in t,hi.ssection.

“(2) ‘Elected officer’ means:

“(A) a member ofthe l,egisl.ature;

“(B) an executive orjudicial. officer elected in a statewide election:

“(C) ajudge of a court of civil appeals, a district court, a court of domestic relations, or ajuvenile court created by special l.aw: p. 1191The Honorable Betty J. Anderson

The Honorable W. Forrest Smith, page 2 (H-255)



## ‘l(D) a member of the State Board of

Education; or

“(E) a person appointed to fill a vacancy

or newly created office who, if elected rather than appointed, would be an elected officer as defined in paragraph (A). (B). CC), or (D) of this subdivision.

“(3) ‘Appointed officer’ means:

“(A) the secretary of state;

“03) an individual appointed with the advice

and consent ofthe senate to the governing board of any state-supported institution ofhigher education: “CC) an officer of a state agency who is

appointed for aterm of office specified by the constitution or a statute of this state, excluding a person appointed to fill a vacancy in an elective office; or “CD) a person who i,s not otherwise within

the definition of elected officer, appointed officer, or executive head of a state agency, but who holds aposition as a member ofthe governing board or commission ofa state agency acquired through amethod other than appointment.

“(4) ‘Salaried appokted offker’ means an

appointed officer as defined in this Act who receives or is authorized to receive for his services to the state a salary as opposed to a per diem or other form of compensation.

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The Honorable Betty J. Anderson The Honorable W. Forrest Smith, page 3 (H-255)

“(5)(A) ‘Appointed officer of amajor state

agency’ means any ofthe following: [twenty-seven agencies are then listed including nei,ther the State Board of Examiners in the Basic Sciences nor the Texas Youth Council]

“(6) ‘Executive head’ of a state agemy means the director, executive director, commissioner, administrator, chief clerk, or other individual not within the definiti,on ofappointed officer who is appointed by the governing body or hi,ghest officer of the state agency to act as the chief executive or administrative officer of the agency. The term includes the chancellor or highest executive officer of a university system and the president ofa public senior college or university as defined by Section 61.003. Texas Education Code, as amended.

The State Board of Examiners in the Basic Sciences consists of six members appointed by the Governor for aterm of six years, subject t:o the consent and confirmation ofthe Senate (Article 4590~. Sec. 3. V. T. C.S.). Each member insto receive $25 per day “for each day actively engaged in the discharge ofhis duties” pl.us “actual expenditures” (Ibid., Sec. 4). Section 4a ofthe Article, added in 196’7 (Acts 1967, 60th Leg., ch. 711, p. 1834) directs the employment. of an Executive Secretary. The Texas Youth Council consists ofthree members appointed by the Governor with the consent of the Senate for terms of six years, They are to receive a per diem of $10 per day, not to exceed 60 days for any fiscal year plus actual expenses, They are to empl.oy a full-time Executive Director. Article 5143d. Sec. 4, ‘V.T. C.S. Mrs. Anderson’s question is:

p0 1193The Honorable Betty J. Anderson

The Honorable W. Forrest Smith, page 4 (H-255)

“The members of the Texas State Board of Examiners in the Basic Sciences respectfully request your opinion as to whether or not the members ofthis Board and the employees and staff of this Board would be subject to the provisions of House Bill 1 [Article 6252-913, supra] by virtue ofthe fact that this agency is not named in Subsection (5)(A) of Section 2 of House Bill 10” Mr. Smith asks:

“My question is whether members of the Texas Youth Council are ‘state officers’ or
‘appointed officers’, defined in Section 2of the Act, and, if so, whether we are required to file financial statements as provided in Section 3of the Act.” The members ofthe State Board of Examiners in the Basic Sciences and ofthe Texas Youth Council are not required to file the financial statements called for by Sec. 3ofthe Ethics Act. Although they are “appointed officers” within the defmition ofSec. 2(31 of the Ethics Act, they are not elected officers, they are not salaried appointed officers and, neither agency being one ofthe twenty..seven named major state agencies, they are not appointed officers of a major state agency. Finally, they do not meet the Sec. 2 definition of executive head ofa state~agency. Though agency members are not required to file the Sec. 3statement, that circumstance does not excuse members or staff from otherwise complying with the Act. Section 5, requiring an affidati,t from an appointed officer not required to file a financial statement who has. acquires, or divests himself ofa substantial interest in a business entity which is subject to regulation by a state agency or does business with a state agency, applies to the members of each board, which is not listed as a “major state agency”
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The Honorable Betty .I. Anderson The Honorable W. Forrest Smith, page 5 (H-255)

The Executive Secretary of the Board of Examiners and the Executive Direct orof the Youth Council, in our opinion,probably meet the Sec. 2(6) definition of “executive head of a state agency” and, as such, will have to file the financial statement reqlir~ed by Sec. 3. if in fact.. they are appointed “to act as the chief ~administratke or executive officer ofthe agency, ” See Attorney General Opinion No. H-190 (1973). Of course, all ofthese persons and all other empl,oyees of these agencies are subject to the “standards of conduct” ofSet, 8 ofthe Act. SUMMARY The unsalaried, appointed members of a board or a stste agency, not name’d as a ‘major state agency” in the Ethics Act, Article 6252-913, are not required to fi1.ea fi.nanci,al statement, but are required to fi,le an affidavit showmg any invol.vement in regulated activities. The person appointed to act as the chief executive or admini~st:rati.ve person in such an agency is required to fi.le tlie financial statement. The board members, the execut.ive head and all other staff members and employees are governed by the Standards of Gonduct. Very truly yours,



# !iik \*~L.-L+a- -----. DAVID M.. KEN ------

DALL, Chai,rman ( / Attorney General of Texas

Opinion Committee

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