Untitled Texas Attorney General Opinion ( 1991 )

Q9fficeof tly Bttornep @eneral
Mate of UJexae
DAN MORALES November 8.1991
.ATTORS:EY
GENERAL
Honorable Gib Lewis Opinion No. DM-55
Speaker
Texas House of Representatives Re: Whether service on the board of a
P. 0. Box 2910 county education district by a board
Austin Texas 78768-2910 member of an independent school
district constitutes unconstitutional dual
office holding, and related questions
(RQ-142)
Dear Mr. Speaker:
You ask three questions about the propriety of members of the board of the
Hurst-Euless-Bedford Independent School District setving in other positions. Each
of your questions requires us to consider the applicability of both the constitutional
prohibition on dual office holding, Tex. Const. art. XVI, 5 40, and the common-law
doctrine of incompatibility. Article XVI, section 40, of the Texas Constitution
prohibits a person from holding two “offices of emolument.” The common-law
doctrine of incompatibility prevents a person from holding two offices where one
off%e might impose its policies on the other or subject it to control in some other
way; See Attorney General Opinions JM-1266 (1990); JM-129 (1984); JM-97
(1983). It also prohibits an officer from employing himself, that is, from holding an
employment subordinate.io his office. Attorney General Opinion JM-1266 (1990);
Letter AdvisoryNo. 114 (1975).
You first ask ðer a member of the board of the Hurst-Euless-Bedford
Independent School District may also serve on the board of the county education
district of Tarrant County.1 The Hurst-Euless-Bedford Independent School District
*Your specific qumtion is whether a member of the board of the Hurst-Euless-Bedford
Independent School District may serve as “president”of the board of the county education district. The
statutes gowning county education districts make no reference to the position of president of the
board. There is a reference to the “chaimun.” Educ. Code 5 20.944(b) (chairman may caU meetings);
see uLso id 9 20.943(e) (commissioner of education may adopt roles relating to the operation and
admiitration of county education districts). Presumably, the members of the county education
district in question chose one of their members to serve as the head of the board for procedural
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Honorable Gib Lewis - Page 2 (DM-55)
is a component of the county education district of Tarrant County. See Educ. Code
5 20.941(a). The boards of the component districts of a county education district
choose one or two of their members to serve on the board of the county education
district. Id 9 20.943(b).
Service on the county education district board is an additional duty of office
of the school board members. Id In other words, a school board member serving
on a county education district is not to be considered to be holding two different
offices. If an individual is holding only one office, the constitutional prohibition on
dual office holding is not applicable. See Tam Tumpikz Autk v. Shepperd, 279
S.W.2d 302 (Tex. 1955) (legislature may impose extra duties upon statutory
officials). Further, members of the board of the county education district receive no
compensation for their service, although they are entitled to reimbursement for
necessary expenses. Educ. Code 0 20.944(c); see also id 0 23.19(e) (trustees of
independent school districts do not receive compensation). Reimbursement for
actual expenses does not constitute an emolument for purposes of article XVI,
section 40. See Attorney General Opinion JM-1266 at 3. Thus, even if a school
board member who was also serving on the board of a county education district was
considered to be holding a second office, the office would not be an office of
emolument and the constitutional prohibition on dual offke holding would not
apply.
The common-law doctrine of incompatibility is also inapplicable here since
the Education Code requires that members of the board of a county education
district be members of the boards of the component districts of the county education
district. Even if service in two positions is incompatible under the common-law test,
the common-law rule is inapplicable where a statute authorizes service in both
positions, since the legislature has authority to change the common law by adopting
a statute. Tex. Const. art. XVI, 8 48; Civ. Prac. & Rem. Code %5.001; see ako
Attorney General Opinion JM-1157 (1990).
Your second question is whether a member of the board of the Hurst-Euless-
Redford Independent School District may serve as a teacher in a different school
district. Such service would not constitute dual office holding since a teacher is not
an officer. See Letter Advisory No. 137 (1977). Article XVI, section 40, also
contains the following proviso:
purposes. For purposes of your question, there is no legal disthchon behveen the chairman and other
board members.
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Honorable Gib Lewis - Page 3 (DM-55)
State employees or other individuals who receive all or part of
their compensation either directly or indirectly from funds of the
State of Texas and who are not State officers, shall not be barred
from serving as members of the governing bodies of school
districts, cities, towns, or other local governmental districts;
provided, however, that such State employees or other
individurds shall receive no salary for serving as members of
such governing bodies.
That proviso would not prohibit the situation you describe since a school board
member receives no compensation. Educ. Code 9 23.19(e).
Further, the common-law doctrine of incompatibility would not prohibit a
school board member from working for another district. See gerreruJ& Letter
Advisory Nos. 114 (1975); 54 (1973) (language from article XVJ, section 40, set out
above, does not override common-law incompatibility). Previous decisions of this
office have applied two discrete tests to determine whether incompatibility exists:
one is whether the individual holds two offices that involve conflicting loyalties; the
other is whether there is self-employment. Attorney General Gpimon JM-1266. A
person has contlicting loyalties if he occupies “two offices where one office might
thereby impose its policies on the other or subject it to control in some other way.
Attorney General opinion JM-129 at 1. This kind of incompatibility only exists if
the two positions in question are both offices. Attorney General Opinion JM-1266
at 4. Because a teacher does not hold an office, the conflicting loyalties standard
would not apply to the facts in question. The doctrine of incompatibility also
prohibits an officer from employing himself. Letter Advisory No. 114. Thus, a
school board member could not be employed by the district for which he is a board
member. However, his employment by a different district would not put him in the
position of working for himself.2
Your last question is whether a member of the board of the Hurst-Euless-
Bedford Independent School District may serve as a part-time staff member in the
Bedford office of a state representative. A staff member is an employee and
3ThcfaftthatthctwodirtridsinquMtionarebothinthesamcwuntycducatioodirtriddocs
not raise an issue of self-employment. The board member in question is not a member of the board of
the county cdocation d&trk% We need not address whether iwompatiiity would arise if the board
memtcr were a member of the board of the county education district that encompassed both districts.
p. 281
Honorable Gib Lewis - Page 4 (DM-55)
therefore would not hold two civil offices of emolument if he serves on a school
board. See Attorney General Opinion H-10 (1973) (secretary of a state legislator is
not a state officer). Nor is there incompatibility in this situation. Because a
legislative staff member does not hold an office, the aspect of incompatibility that
prohibits a person from holding two offices with conflicting loyalties is inapplicable.
The Self-employment aspect of incompatibility is also inapplicable here.
Neither the prohibition on dual office holding set out in
article XVI, section 40, of the Te&s Constitution nor the
common-law rule of incompatibility prohibits a school board
member from serving on the board of the county education
district of which his school district is a component, from serving
as a teacher in a different school district, or from working part-
time in a state legislator’s office.
Very truly yours,
DAN MORALES
Attorney General of Texas
WILL PRYOR
First Assistant Attorney General
MARY KELLER
Executive Assistant Attorney General
JUDGE ZOLLlE STEAKIXY (Ret)
Special Assistant Attorney General
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Honorable Gib Lewis - Page 5 (DM-55)
RENBAHICKS
Special Assistant Attorney General
MADELEINB B. JOHNSON
chair, Opinion Committee
Prepared by Sarah Woelk
Assistant Attorney General
p. 283