Untitled Texas Attorney General Opinion ( 2011 )

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
August 9, 2011
The Honorable Dan W. Heard Opinion No. GA-0874
Calhoun County Criminal District Attorney
Post Office Box 100 I Re: Whether a school district chief of police may
Port Lavaca, Texas 77979 be compensated for service on a city council
(RQ-0950-GA)
Dear Mr. Heard:
You ask whether a school district chief of police may be compensated for service on a city
council.!
Article XVI, section 40 of the Texas Constitution provides, with certain exceptions not
relevant to your inquiry, that "[n]o person shall hold or exercise at the same time, more than one civil
office of emolument." TEx. CONST. art. XVI, § 40(a). Subsection (b) declares, in relevant part:
State employees or other individuals who receive all or part
of their compensation either directly or indirectly from frmds 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. Such State employees
or other individuals may not receive a salary for serving as members
of such governing bodies, except that:
(1) a schoolteacher ... or retired school administrator
may receive compensation for serving as a member of a governing
body of a school district, city, town, or local governmental district
Id. § 40(b).
'Letter from Honorable Dan W. Heard, Calhoun County Criminal District Attorney, to Opinion Committee,
Office of the Texas Attorney General at I (Mar. 3, 2011), https:llwww.oag.state.tx.us/opin/indexJq.shtrnl ("Request
Letter").
The Honorable Dan W. Heard - Page 2 (GA-0874)
Although you acknowledge that the individual in question disputes that he is compensated
from state funds, your request appears to assume that he is in fact so compensated. See Tex. Att'y
Gen. Op. No. GA-0530 (2007) at 2-3 ("Employees of public school districts ... receive 'all or part
of their compensation either directly or indirectly from funds of the State of Texas,' and thus are
subject to article XVI, section 40(b).").
You first question whether the school district chief of police may be compensated for his
service on the city council under the "schoolteacher" exception in subsection (b). Request Letter
at I. No Texas court has considered the term "schoolteacher" as used in subsection (b)(l). In a prior
opinion, we said that "whether a particular individual who receives compensation from the State of
Texas is a schoolteacher for purposes of article XVI, section 40 of the Texas Constitution depends
upon whether the individual is employed to instruct students in a school setting, which may include
an athletic facility, as a result of which participants may receive credit toward fulfilling their
curriculum requirements." Tex. Att'y Gen. Op. No. GA-0530 (2007) at 5. Although Opinion
GA-0530 ultimately concluded that its particular determination was a fact question, you have told
us that the job description for school district police chief does not include any teaching
responsibilities. Request Letter at 2. On the basis of the facts you have provided, it appears that the
district's chief of police, because he has no teaching responsibilities, is not a "schoolteacher" within
the meaning of subsection (b)( I), article XVI, section 40 of the Texas Constitution. Consequently,
that individual may not be compensated for service on a city council.
You also ask whether subsection (a) of article XVI, section 40 is applicable to the school
district police chief irrespective of subsection (b). It is not. Subsections (a) and (b) of article XVI,
section 40 are not in conflict. Subsection (a) applies to persons who hold a "civil office of
emolument." Subsection (b), which was added to the constitutional provision in 200 I, by its terms .
applies to persons "who are not State officers." We conclude that subsection (b) is an independent
provision that addresses prohibitions and exceptions applicable to "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." See TEX. CONST. art. XVI, § 40(b).
The Honorable Dan W. Heard - Page 3 (GA-0874)
SUMMARY
Under the facts presented, a school district chief of police is
not a "schoolteacher" for purposes of article XVI, section 40(b) of the
Texas Constitution. Accordingly, he may not be compensated for his
service on a city council.
DANIEL T. HODGE
First Assistant Attorney General
DAVID J. SCHENCK
Deputy Attorney General for Legal Counsel
JASON BOATRIGHT
Chair, Opinion Committee
Rick Gilpin
Assistant Attorney General, Opinion Committee