Can Texas put officials who answer only to the legislature on a state commission that carries out executive functions?

Texas AG Opinion JM-993: Can Legislative Officials Sit on an Executive Commission?

Plain-English summary

Texas set up a Productivity Bonus Commission to save taxpayers money. The idea was straightforward: if a state agency found ways to run cheaper, the commission would review the agency's cost-cutting plan and, if it qualified, award productivity bonuses to that agency's employees, with part of the savings flowing back to the treasury. The commission's chairman wrote to the Attorney General with a set of questions, and the answer turned on a constitutional problem baked into how the commission was staffed.

The commission's membership was a mix. It included the comptroller and a member of the governor's staff, but it also included the State Auditor and the Director of the Legislative Budget Board, two officials who work for and answer only to the legislature. That mix is what sank it.

The Attorney General first established what kind of body this was. The commission was not a study group or an advisory panel handing out ceremonial recommendations. It executed a detailed statutory program, decided which agencies earned bonuses and how big those bonuses would be, and directed how appropriated money got spent. That is executive work: applying discretion to carry out a public policy the legislature already enacted.

Here is the constitutional catch. Article II, section 1 of the Texas Constitution splits state power into three branches and forbids one branch from exercising powers belonging to another. The State Auditor and the Legislative Budget Board director are legislative officials. Putting them in command of a body that executes the law, and especially one that controls the spending of already-appropriated funds, lets the legislative branch reach into work the constitution assigns to the executive branch. Texas courts and Attorney General opinions have long said the legislature may pass laws but may not then run the machinery that carries them out, and it certainly may not set itself up to supervise how executive agencies spend money once it has been appropriated. So the commission was unconstitutionally constituted.

The chairman had a fallback: could the commission keep operating if the legislative officials just served in "advisory" roles or abstained from voting? The Attorney General said no. The statute expected these members to do real work, deciding which agencies qualify and how much they get, and officials cannot pick and choose which of their assigned duties to perform. Even a purely advisory presence of officials who answer only to the legislature, sitting in command of an executive agency, risks the same improper encroachment. A footnote added an important caveat: this does not mean every board with members from different branches is unconstitutional. Many mixed bodies are fine because their work is advisory or ceremonial. The problem is specific to bodies that exercise discretion over the expenditure of appropriated funds. Because the composition failed, the Attorney General did not reach the chairman's other question about paying bonuses out of funds already appropriated.

Currency note

This opinion was issued in 1988. 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.

The Productivity Bonus Act (then V.T.C.S. article 6252-29) and the related statutes cited here have their own later legislative history, and the Government Code provisions on the State Auditor and the Legislative Budget Board have been amended and renumbered. The separation-of-powers analysis reflects long-standing Texas constitutional law under article II, section 1, but anyone evaluating the composition of a state board today should check the current statutes and the current case law rather than relying on the 1988 provisions described here.

Who this opinion affected (as of 1988)

The Productivity Bonus Commission: The opinion told the commission it was unconstitutionally constituted because its membership included officials answerable only to the legislature while it exercised executive power over appropriated funds.

The State Auditor and the Legislative Budget Board director: The opinion identified these as legislative-branch officials whose presence in command of an executive body created the separation-of-powers defect.

The legislature and future board designers: The opinion drew a line: mixed-branch bodies are permissible when their work is advisory or ceremonial, but not when they exercise discretion over the expenditure of appropriated funds.

Common questions

Why was the Productivity Bonus Commission unconstitutional?
In this opinion the Attorney General concluded that the commission exercised executive power but included the State Auditor and the Legislative Budget Board director, officials answerable only to the legislature, which violates the separation of powers in article II, section 1.

What made the commission's work "executive"?
It executed a detailed statutory program, decided which agencies qualified for bonuses and how large they would be, and controlled how appropriated funds were spent, which involves fact-finding and discretion in carrying out public policy.

Could the problem be fixed by making the legislative members advisory or non-voting?
No. The Attorney General found no authority for that, because the statute expected those members to discharge real duties, and even an advisory presence of legislature-answerable officials in command of an executive agency risks improper encroachment.

Does this mean any board with members from different branches is unconstitutional?
No. A footnote made clear that many mixed-branch bodies are permissible when their duties are advisory or ceremonial; the defect here was specific to a body exercising discretion over appropriated funds.

Background and statutory framework

The Productivity Bonus Commission, created by V.T.C.S. article 6252-29, administered a program designed to produce taxpayer savings by reducing state agencies' operating costs. Its members were the comptroller of public accounts, the State Auditor, the Director of the Legislative Budget Board, a member of the governor's staff, the classification officer appointed under the Position Classification Act of 1961 (V.T.C.S. art. 6252-11), an officer or employee of a political subdivision, and three private-industry members experienced in incentive pay. V.T.C.S. art. 6252-29, § 2(a). Executive and judicial agencies (except the governor's office and higher-education institutions) could elect to participate by submitting a plan; the Act set detailed criteria for the commission to determine whether a plan produced qualifying savings, and bonuses awarded increased the agency's operating funds while a portion of savings returned to the treasury. Id. §§ 4(a), 5, 6, 9. The Act declared a legislative intent that an agency qualifying for a bonus not be penalized by a corresponding reduction in appropriations. Id. § 9(e).

The Attorney General first concluded the commission's powers are wholly executive. It is charged with specific duties executing a detailed legislative mandate, and its executive powers are neither few nor de minimis. The legislature expressly conferred authority to execute the law and to determine the manner in which appropriated funds are expended, along with powers necessarily implied from that grant. Railroad Commission of Texas v. Red Arrow Freight Lines, Inc., 96 S.W.2d 735 (Tex. Civ. App. - Austin 1936, writ ref'd). The powers are used not for ceremonial or advisory purposes but to execute the law and disburse appropriated funds.

Article II, section 1 of the Texas Constitution divides state power into legislative, executive, and judicial departments and bars any person of one department from exercising power properly attached to another, except as expressly permitted. The doctrine is a self-executing safeguard against the encroachment or aggrandizement of one branch at the expense of another. Buckley v. Valeo, 424 U.S. 1, 122 (1976); see Morrison v. Olson, 108 S.Ct. 2597, 2637 (1988) (Scalia, J., dissenting). This office has consistently held that legislative attempts to supervise the implementation of statutes outside the normal legislative process violate separation of powers. Attorney General Opinions JM-872 (1988); MW-460 (1982); V-1305, V-1254 (1951); O-4609 (1942).

The State Auditor is appointed by and serves at the will of the Legislative Audit Committee (Gov't Code § 321.005), and the Director of the Legislative Budget Board is appointed by and accountable only to that board (Gov't Code § 322.004); both are legislative-branch officials. While separation of powers does not prevent coordination and cooperation between the branches (State Board of Insurance v. Betts, 308 S.W.2d 846 (Tex. 1958)), the legislature may not assume general authority to execute and administer the laws, a principle uniform throughout American law (Morrison v. Olson, supra; I.N.S. v. Chadha, 462 U.S. 919 (1983)). The principle is especially important when the legislature attempts to manage the expenditure of funds already appropriated, because fiscal administration is an executive duty and no branch may set itself up in a supervisory capacity over another (Attorney General Opinion V-1254 (1951), at 15). The commission was therefore unconstitutionally constituted, because some members are answerable only to the legislature yet share responsibility for executing the law.

The Attorney General found no authority for allowing the commission to function with the legislative officials in "advisory positions" only or abstaining from voting. The statute expects those officials to discharge duties, including deciding which agencies are entitled to bonuses and in what amounts (V.T.C.S. art. 6252-29, §§ 8, 9), duties that involve fact-finding and discretion rather than mere advice, and officials may not pick and choose which duties to execute; even an advisory presence of officials serving at the will of the legislature in command of an executive agency may lead to improper encroachment. See Attorney General Opinion JM-872 (1988). A footnote cautioned that not every entity composed of members from different branches is unconstitutional; many bodies have purely advisory or ceremonial duties and do not involve discretion over the expenditure of appropriated funds, and coordination between branches is permitted. Because the composition was unconstitutional, the Attorney General did not consider whether the commission could make awards from funds already appropriated to participating agencies.

Citations

Statutory authority:

• V.T.C.S. art. 6252-29 (Productivity Bonus Act; §§ 2(a), 4(a), 5, 6, 8, 9, 9(e))
• V.T.C.S. art. 6252-11 (Position Classification Act of 1961)
• Texas Constitution art. II, § 1 (separation of powers)
• Government Code § 321.005 (appointment of State Auditor)
• Government Code § 322.004 (appointment of Legislative Budget Board director)

Cases:

• Railroad Commission of Texas v. Red Arrow Freight Lines, Inc., 96 S.W.2d 735 (Tex. Civ. App. - Austin 1936, writ ref'd)
• Buckley v. Valeo, 424 U.S. 1 (1976)
• Morrison v. Olson, 108 S.Ct. 2597 (1988)
• State Board of Insurance v. Betts, 308 S.W.2d 846 (Tex. 1958)
• I.N.S. v. Chadha, 462 U.S. 919 (1983)

Related opinions:

• Attorney General Opinion JM-872 (1988)
• Attorney General Opinion JM-141 (1984)
• Attorney General Opinion MW-460 (1982)
• Attorney General Opinion V-1305 (1951)
• Attorney General Opinion V-1254 (1951)
• Attorney General Opinion O-4609 (1942)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-993
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1988/jm0993.pdf

Original opinion text

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

December 15, 1988

Honorable Robert E. Davis
Chairman
Productivity Bonus Commission
P.O. Box 12428, Capitol Station
Austin, Texas 78711

Opinion No. JM-993

Re: Authority of the Productivity Bonus Commission created by article 6252-29, V.T.C.S. (RQ-1459)

Dear Mr. Davis:

You ask a number of questions concerning the Productivity Bonus Commission, article 6252-29, V.T.C.S. We will first describe the Commission and highlight its key functions before discussing each of your questions.

The Commission is charged with administering a program designed to produce savings for the taxpayers by reducing the operating costs of state agencies through the improvement of productivity by means of techniques specified in the statute. See generally V.T.C.S. art. 6252-29, § 6. The Commission is composed of the comptroller of public accounts, the State Auditor, the director of the Legislative Budget Board, a member of the governor's staff, the classification officer appointed under the Position Classification Act of 1961 (art. 6252-11, V.T.C.S.), an officer or employee of a political subdivision of the state, and three persons from private industry who have experience in the administration of incentive pay programs. V.T.C.S. art. 6252-29, § 2(a).

State agencies in the executive and judicial branches of the government, with the exception of the governor's office and institutions of higher education, may elect to participate in the program outlined in the statute by submitting a plan that "outlines a strategy . . . that, if implemented, would cause the agency . . . to qualify for a productivity bonus." Id. § 4(a). The Act contains detailed instructions and criteria for the Commission to use in determining whether an agency plan produces cost savings in its yearly operations which qualify for a productivity bonus. Id. §§ 5 and 6. Bonuses actually awarded are presented to employees of the agency and result in an increase of the funds available to the agency for its operations during a subsequent fiscal year. Id. § 9. A portion of any cost savings accrued through increased productivity is to be returned to the fund in the treasury from which the agency receives appropriations. Id.

Finally,

[i]t is the intent of the legislature that a state agency or a division of an agency that reduces its cost of operations and qualifies for a productivity bonus . . . may not be penalized for those savings through a corresponding reduction in appropriations for the subsequent fiscal biennium.

V.T.C.S. art. 6252-29, § 9(e).

You first ask whether the Productivity Bonus Act grants powers of the executive branch to the Productivity Bonus Commission.

The Productivity Bonus Commission is charged with very specific duties involving the execution of a detailed legislative mandate. See, e.g., V.T.C.S. art. 6252-29, §§ 7 and 8. Its executive powers are neither few nor de minimis. See Attorney General Opinion JM-141 (1984). The legislature has expressly conferred authority upon the Commission to execute the law and to determine the manner in which appropriated funds are expended. It also has those powers which are necessarily implied from the express grant of authority. Railroad Commission of Texas v. Red Arrow Freight Lines, Inc., 96 S.W.2d 735 (Tex. Civ. App. - Austin 1936, writ ref'd). The powers of the Commission thus are wholly executive -- they will be used not for ceremonial or advisory purposes, but to execute the law and provide for the disbursement of appropriated funds in a pattern selected by the Commission.

You next ask:

If the Commission is an executive agency, does the composition of the Commission -- the presence of members of the legislative branch -- violate the doctrine of separation of powers?

Article II, § 1 of the Texas Constitution provides for the separation of powers between the executive, legislative, and judicial branches.

The powers of the Government of the State of Texas shall be divided into three distinct departments, each of which shall be confided to a separate body of magistracy, to wit: Those which are Legislative to one; those which are Executive to another, and those which are Judicial to another; and no person, or collection of persons, being of one of these departments, shall exercise any power properly attached to either of the others, except in the instances herein expressly permitted. (Emphasis added.)

Tex. Const. art. II, § 1.

The doctrine of separation of powers serves as a "self-executing safeguard against the encroachment or aggrandizement of one branch [of government] at the expense of the other." Buckley v. Valeo, 424 U.S. 1, 122 (1976). "No political truth is certainly of greater intrinsic value or is stamped with the authority of more enlightened patrons of liberty." Madison, The Federalist No. 47, p. 324 (Cooke ed. 1961). "The purpose of separation and equilibration of powers in general . . . [is] not merely to assure effective government but to preserve individual freedom." Morrison v. Olson, 108 S.Ct. 2597, 2637 (1988) (from the dissenting opinion of Justice Scalia). See also "Separation of Powers," 4 Encyclopedia of the American Constitution 1659 (1986).

This office has consistently held that any attempt by the legislature to supervise the implementation of statutes through some means other than the normal legislative process specified in sections 28 through 40 of article II of the Constitution of Texas violates the doctrine of separation of powers. Attorney General Opinions JM-872 (1988); MW-460 (1982); V-1305, V-1254 (1951); O-4609 (1942).

The State Auditor and the Director of the Legislative Budget Board are officials of the legislative branch of government and they are answerable only to that branch. The Auditor is appointed by the Legislative Audit Committee and serves at the will of the Committee. Gov't Code § 321.005. The Director of the Legislative Budget Board is appointed by the Board and is only accountable to, and serves at the will of, that legislative agency. Gov't Code § 322.004.

The doctrine of separation of powers does not prevent effective coordination and cooperation between the legislative and executive branches of the government in the effective resolution of public problems. State Board of Insurance v. Betts, 308 S.W.2d 846 (Tex. 1958). But the legislature may not assume general authority to execute and administer the laws. This principle is uniform throughout American law. See, e.g., Morrison v. Olson, supra; I.N.S. v. Chadha, 462 U.S. 919 (1983). Many of the cases from other states supporting the doctrine are collected in Attorney General Opinion JM-872 which concerned the impermissibility of a legislative official -- the State Auditor -- supervising activities carried out by executive agencies in administering the law. The principle of separation of powers is especially important when the legislature attempts to manage the expenditure of funds already appropriated:

[t]he Legislature is no longer authorized to concern itself with the further . . . disbursement of the funds, the constitutional inhibition being not only against actual usurpation of the function, but also against one [branch] setting itself up in a supervisory capacity over the actions of another. [Citation omitted.]

---

[T]he fiscal administration of the affairs of the government [is] an executive duty.

Attorney General Opinion V-1254 (1951), at 15. Thus, the Productivity Bonus Commission is unconstitutionally constituted because some of its members are answerable only to the legislature and share responsibility with executive officers for executing the law.

Because the inclusion of officials answerable only to the legislature in command of an executive agency violates the doctrine of separation of powers, you ask whether the Commission may continue to function if the legislative officials occupy "advisory positions" only or abstain from voting.

There is no authority for either proposition. The statute certainly expects that the legislative officials named to the Commission will discharge their duties. These tasks include deciding which agencies are entitled to productivity bonuses and the amount of the bonuses to be awarded. V.T.C.S. art. 6252-29, §§ 8 and 9. Such duties are not merely advisory but rather involve the exercise of fact-finding and the application of discretion in executing a public policy. Officials and officers of the state government, consistent with their duties to the people, may not pick and chose from among the duties they will execute. Additionally, the mere "advisory" presence of officials who serve only at the will of the legislature in command of an executive agency may lead to an improper encroachment of one branch into the affairs of another.1 See Attorney General Opinion JM-872 (1988).

You also ask:

Does the Commission have authority to make the awards specified in the statute out of funds already appropriated to the agencies or their divisions, which participate in the productivity bonus plan when some of the appropriated funds are saved in connection with the productivity improvements contemplated by the Act?

Because we find that the composition of the Productivity Bonus Commission is unconstitutional, we do not consider this question.

1. This opinion should not be taken to mean that every entity composed of members or officials of different branches of the government is unconstitutional. Some entities consisting of members from the different branches of government may be authorized by the constitution. Other bodies too numerous to list here have many duties that are purely advisory or merely ceremonial and do not involve detailed tasks requiring the exercise of discretion about the expenditure of appropriated funds. In such a case, the function of the body may be appropriate under the constitution because nothing in the doctrine of separation of powers prevents coordination and cooperation between the branches of government.

SUMMARY

The Productivity Bonus Commission exercises functions of the executive branch of the Government. Because of the doctrine of separation of powers, its composition may not include officials appointed by, and only answerable to, the legislature. Tex. Const. art. II, § 1.

Very truly yours,

JIM MATTOX
Attorney General of Texas

MARY KELLER
First Assistant Attorney General

LOU MCCREARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by D. R. Bustion, II
Assistant Attorney General