Could the Texas human-resources agency stop child-protective workers from doing paid court-ordered custody studies after hours?

Texas AG Opinion JM-188: CPS Workers' Outside Custody Studies

Plain-English summary

JM-188 concluded that the Texas Department of Human Resources could prohibit child-protective workers from performing paid court-ordered social studies on their own time when the outside work created a conflict of interest.

"The Texas Department of Human Resources may prohibit workers from performing court-ordered social studies on their own time when the workers' dual employment creates a conflict of interest."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0188.pdf

The opinion identified competition with the department for court appointments and revenue under the Family Code as one valid conflict. It also allowed the department to consider adverse effects on workload, credibility, and other agency interests.

"Competing with the department for court appointments and revenue under sections 11.12 and 11.18(c) of the Family Code or by adversely affecting other aspects of the department."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0188.pdf

Although conflicts ordinarily called for employee-specific factual review, JM-188 said the agency could determine that every covered child-protective worker faced a conflict when privately competing for the same appointments and fees.

"Whether a conflict of interest exists is a question of fact which ordinarily must be determined by the agency on a case-by-case basis in light of the specific duties performed by the employee."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0188.pdf

"We cannot say that the department may not validly determine that a conflict of interest exists in every instance in which a child protective service worker in his individual capacity competes with his employer."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0188.pdf

Currency note

This opinion was issued in 1984. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

What kind of outside work did the policy address?

It addressed court-ordered social studies in disputed custody cases performed on an employee's own time when the department had no official relationship with the parties.

"Its child protective service workers are prohibited from performing court ordered social studies on their own time in disputed custody suits, even though the department has no official relationship with the parties involved in the proposed study."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0188.pdf

Who could prepare a court-ordered social study?

Family Code section 11.12 allowed a state agency, a private agency, or any person appointed by the court to prepare it.

"The social study may be made by any state agency, including the Texas Department of Human Resources, or any private agency, or any person appointed by the court."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0188.pdf

Why did the department have a financial interest in the appointments?

Section 11.18(c) required the court to award the department a reasonable fee when the court ordered the department to prepare the study.

"If the court orders the Texas Department of Human Resources to prepare the social study ... the court shall award a reasonable fee for the preparation of the study to the department."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0188.pdf

Were public employees automatically prohibited from holding a second job?

No. The opinion said state employees were not categorically barred from simultaneous state or private employment.

"A public employee is not prohibited per se from simultaneously holding two different state employments or from simultaneously holding both state and private employments."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0188.pdf

What did the department's dual-employment policy require?

It required review and approval of outside activities that might conflict with the employee's department duties, clients, regulated persons, providers, or official position.

"All other requests for participation in dual employment or activities are carefully reviewed to determine if they are compatible with the employee's assigned responsibilities in the department."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0188.pdf

What standard did JM-188 use for the outside-work restriction?

It said a prohibition would be upheld when reasonably related to the state's legitimate interest in preventing conflicting outside employment.

"A prohibition against outside employment will be upheld by the courts inasmuch as the prohibition is reasonably related to the legitimate interest of the state in prohibiting outside employment that creates a conflict of interest."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0188.pdf

Background and statutory framework

House Bill No. 642 added Family Code section 11.18(c). Legislative materials estimated that the mandatory fee would produce revenue for the department and reduce required state and federal operating funds.

"The conference committee bill analysis and the bill's fiscal note estimate that the bill will result in sizeable revenue gains to the department's Welfare Administration Operating Fund."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0188.pdf

The Board of Human Resources adopted department policy, and the commissioner could hire personnel needed to administer its duties. JM-188 treated reasonable personnel rules as implied in that employment authority.

"We believe that reasonable personnel policies for which there is an adequate showing of need are authorized under the department's implied powers."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0188.pdf

The policy prohibited use of client information, official position, or duty hours for private work and allowed discipline for violations.

"Employees approved to engage in off-duty employment or activities must not conduct any non-departmental business activity during duty hours."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0188.pdf

Citations and references

• Family Code section 11.12 authorized court-ordered social studies and identified who could prepare them.

"In a suit affecting the parent-child relationship, the court may order the preparation of a social study into the circumstances and condition of the child and of the home of any person seeking managing conservatorship or possession of the child."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0188.pdf

• Family Code section 11.18(c) required payment of the department's study fee.

"The department's fee shall be taxed as costs, and shall be paid directly to the department."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0188.pdf

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-0188
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0188.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain. The linked PDF is authoritative.

The Attome), General of Texas

JIM MATTOX
Au;;ust13, 1984
Attorney General

Supreme Court Building Honorable Lloyd Doggett Opinion No. JM-188
P.O. Box12548
Texas State Senate
Aus!in, TX, 79711- 2549 P. 0. Box 12068, Capttol Station Re : Whether the Texas Depart- 5121475-2501 Austin, Texas 78711 ment of Human Resources may Telex 910/874-1367 Telecopier 512/475-0266
prohibit workers from per- forming court ordered social studies on their own time
714 Jackson, Suite 7W
Dallas. TX. 75202-4506
Dear Senator Doggett:
2141742-8944

YOU have requested an opinion on the validity of a policy of the 4824 Alberta Ave., Suite 160 Texas Department of Human Resources under which its child protective
El Paso, TX. 79905-2793
service workers aru prohibited from performing court ordered social
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studies on their o&n time in disputed custody suits, even though the
department has no of'ficialrelationship with the parties involved in ,pv Texas, Suite 700 the proposed study. The existence of a conflict of interest in dual ,w.ton, TX. 77002-3111 employment is s question of fact which ordinarily must be determined
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by the agency on a case-by-case basis, but we believe the department
may find that a coni'lictof interest exfsts for all of its employees who would compete gfth the department for appointments and revenue 606 Broadway, Suite 312
Lubbock, TX. 79401-3479 under sections 11.12 and 11.18(c) of the Family Code or would perform
8061747-5238
services which may luwe other adverse affects on the department.

Section 11.12 0::the Family Code provides, in pertinent part:
43w N. Tenth, Suite B
McAllen, TX. 78501-1685
5121082-4547
(a) In a suit affecting the parent-child relationsh:.p,the court may order the preparation of a social study into the circumstances and
200 Main Plaza, Suite 400
condition of the child and of the home of any
sari Antonio, TX. 78205-2797 person ut:eking managing conservatorship or 51212254191 possession of the child.

*n Equal Opportunity1
(b) Tht: social study may be made by any state
Affirmative Action Employer
agency, including the Texas Department of Human
Resources: or any private agency, or any person appointed t'y the court . . . . (Emphasis added).

House Bill No. 642 of the Sixty-eighth Legislature amended section 11.18 of the Family Code by adding subsection (c), which reads as follows:
Honorable Lloyd Doggett - Page 2 (JM-188)

(c) If the court orders the Texas Department of Human Resources to prepare the social study pre- scribed by Section 11.12 of this code, the court shall award a reascnable fee for the preparation of the study to the department. The department's fee shall be taxes1 as costs, and shall be paid directly to the department. The department may enforce the order ior the fee in its own name.
(Emphasis added).

A conference committee for House Bill No. 642 intentionally determined that the language If section 11.18(c) is mandatory instead of permissive. The conference committee bill analysis and the bill's fiscal note estimate that the bill will result in sizeable revenue gains to the department's Welfare Administration Operating Fund, with corresponding reductions in the state and federal funds required for the operation of the departmwt.

The Department of Hurran Resources has the powers expressly granted to it by statute together with those necessarily implied from Fhe authority conferred or%lties imposed. See Stauffer V. City of San Antonio, 344 S.W.2d 15ti, 160 (Tex. 1961). The Texas Board of Human Resources is responsibl? for the adoption of policies and rules for the government of the department. Human Resources Code, 521.003(a). The commissioner of Human Resources may employ personnel necessary for the administration of the department's duties. Sec. 21.005(c). We believe that reasonable personnel policies for which there is an adequate shox,ing of need are authorized under the department's implied powers. Attorney General Opinion JM-93 (1983) expressed the opinion that a necessary concomitant of the authority to employ persons needed by an agency to perform its duties is the power to adopt reasonable employnent policies calculated to insure the achievement of its objective:s,

A public employee is not prohibited per se from simultaneously holding two different state wnployments or from simultaneously holding both state and private emptoyments. See Attorney General Opinions JM-22 (1983); MW-415 (1981). Under theDepartment of Human Resources' policy for dual employment, ,lN:tivity presenting a possible conflict of interest with the employee's job duties must be reviewed and approved by the department. Rule 7200 of the department's personnel procedures prescribes the following:

7200 Other Employmz:It

Department employees may wish to become involved with employment or activities outside the department. This ,?:acticeis generally acceptable to the department as long as the additional Honorable Lloyd Doggett - Page 3 (JM-188)

employment or act,brity is compatible with the department's work. Employees must not participate in employment or activity that violates the standards of condu:: as prescribed in TEX. REV.
CIV. STAT. ANN., art. 6252-9b, Section 8, known as the ethics code.

. . . .

All requests for pxticipation in dual employment or activities are considered on an individual basis except that:

1. Employees of 1:he department may not hold positions in both county and state protective services programs.

2. Employees may not participate in those political activit Lrss listed in Item 7112, Political Activities Prohibited.

All other requests for participation in dual employment or activities are carefully reviewed to determine if they are compatible with the employee's assign~r~l responsibilities in the department. The duitl employment or activity may not conflict with thz employee's relationship with department clients, contractors, providers, persons regulated by the Licensing Branch, or the employee's job ir. the department. Employees approved to partic:.pate in dual employment or activities must nc't use clients' or licensees' names or other infxmation from any department files in connectior.with the part-time employment or activity. Emp:.oyees must not use their official position C~I identificatj,onto influence, threaten, or coerce any person in connection with part-time employmc!r.t. Employees approved to engage in off-duty employment or activities must not conduct any non-iepartmental business activity during duty hours. The only way an employee may conduct business f3c an outside activity during duty hours is For the activity to be
department-related, such councils of
government, child welfare b%ds, or various advisory boards. Thz activity must be approved at the regional or state office level. Employees who violate these instructions may be subject to dismissal.
Honorable Lloyd Doggett - Pa3.34 (JM-188)

Personnel committz~?s responsible for approving dual employment or activity requests should carefully consii~c r the following outside activities:

. . . .

9. Engaging in the independent activity of providing court-orslered social studies. (This type of request should be referred to the state office Personnel C'xmnittee.)

It is not suggested tlwt Rule 7200 is per se an unreasonable procedure for screening duct:.employment activity that may involve conflicts of interest. The question is its present application to certain of the department's employees. We understand that since the effective date of section 11.18(c), the department has held that a conflict of interest exists in all cases involving child protective service workers who wish to perform court-ordered social studies on their own time.

Whether a conflict of ixrerest exists is a question of fact which ordinarily must be determine,1by the agency on a case-by-case basis in light of the specific dutie::performed by the employee. However, E cannot say that the departmr:r,tmay not validly determine that a con- flict of interest exists in t?ylery instance in which a child protective service worker in his individual capacity competes with his employer, the Department of Human Rescurces, for court appointments and revenue anticipated by the departmert and the legislature under the recently enacted section 11.18(c) of .:ile Family Code or adversely affects other aspects of the department, such as its anticipated workload or its credibility if the courts cJlfuse the source of studies prepared by workers in their individual cdtpacities.

One's right to work and earn an income, whether characterized as a liberty or a property intexst, is a valuable right which should not be curtailed without legitink.testate interest. See Bishop V. Wood, 426 U.S. 341 (1976); The Borl,dof R~egentsof StateColleges v. Roth, 408 U.S. 564 (1972); Perry V~ Sindermann, 408 U.S. 593 (1972); Schware v. Board of Bar Examiners cf the State of New Mexico, 353 U.S. 232 (1957); Attorney General Opinion H-1317 (1978). It is our opinion that a prohibition against yltside employment will be upheld by the courts inasmuch as the prs'libition is reasonably related to the legitimate interest of the !;tate in prohibiting outside employment that creates a conflict of inwrest. See Gosney v. Sonora Independent School District, 603 F.2d !i22 (5thxr. 1979); Attorney General Opinion JM-93 (1983).
. /,

Honorable Lloyd Doggett - Paga 5 (~~-188)

,LUMMARY

The Texas Department of Human Resources may prohibit workers from performing court-ordered social studies on thsir own time when the workers' dual employment creates a conflict of interest by competing with the department for court appointments and rwenue under sections 11.12 and 11.18(c) of the Family Code or by adversely affecting other aspects of the department.

.JI M MATTOX
Attorney General of Texas

TOM GREEN
First Assistant Attorney Genersl

DAVID R. RICHARDS
Executive Assistant Attorney General

Prepared by Nancy Sutton
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Rick Gilpin, Chairman
David Brooks
Susan Garrison
Jim Moellinger
Nancy Sutton

p. 824