Untitled Texas Attorney General Opinion ( 2009 )

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
September 3, 2009
The Honorable Edmund Kuempel Opinion No. GA-0738
Chair, Committee on Licensing &
Administrative Procedures Re: Whether an individual may simultaneously serve
Texas House of Representatives as a member of a school district board of trustees and
Post Office Box 2910 as a principal of a disciplinary alternative program
Austin, Texas 78768-2910 that serves several school districts (RQ-0788-GA)
Dear Representative Kuempel:
You ask whether "an individual [may] serve as a principal of a disciplinary alternative
education program ("DAEP") campus that serves several school districts as part of a cooperative
arrangement while simultaneously serving on the board of trustees of a member district[.]"l You
explain that the individual about whom you ask is the principal of a campus within the Floresville
Independent School District ("Floresville ISD") that, through a cooperative arrangement, serves as
a disciplinary alternative education program2 campus for several school districts. See Request Letter
at 2. You explain further that the Nixon-Smiley Consolidated Independent School District ("Nixon-
Smiley CISD") is one ofthe school districts participating in the cooperative. See id You tell us that
the principal of the DAEP campus in the Floresville ISD resides in the Nixon-Smiley CISD and
wishes to run for a place on the Nixon-Smiley CISD Board of Trustees. See id at 1.
You do not provide the contract governing the cooperative arrangement between the school
districts, nor do you provide information about any of its specific provisions. See id at 1-3. Thus,
our opinion is limited to the facts as you provide them. You tell us that the Nixon-Smiley CISD
Board of Trustees votes on the contract governing its participation in the cooperative but does not
have an employment contract with the principal of the DAEP campus. See id at 2. You also inform
us that the principal's employment contract is with the Floresville ISD and that, while some Nixon-
Smiley CISD employees work directly with the principal, no one from the Nixon-Smiley CISD
ISee Request Letter at 3 (available at http://www.texasattorneygeneral.gov).
2The Education Code requires each school district to provide a disciplinary alternative education program and
authorizes, and sometimes requires, a student engaging in specified conduct to be removed from class and placed in a
DAEP. See e.g., TEX. EDUC. CODE ANN. §§ 37.006 (Vernon 2006) (requiring and authorizing removal of student for
certain conduct), 37.008(a) (Vernon Supp. 2008) (requiring each school district to provide a DAEP). The Education
Code authorizes school districts to provide a DAEP jointly with one or more other districts. See id. § 37.008(d). We
fmd, however, no statute, case law, or administrative rule that fully details the relationship between districts that provide
a DAEP jointly.
The Honorable Edmund Kuempel - Page 2 (GA-0738)
evaluates or supervises the principal. 3 See id Absent any information from the contract, and
because by statute a school district appoints and employs its own principals, we assume that the
Nixon-Smiley CISD has no authority to employ the DAEP campus principal. See TEx. EDUC. CODE
ANN. § 21.002(a) (Vernon 2006) (providing that a school district employs its principals). You do,
however, note that "[a]s in any school setting, circumstances such as disciplinary appeals or other
parent or student complaints could arise to bring the actions or decisions of the DAEP campus
principal into question by the Nixon-Smiley CISD Administration or the Board of Trustees."
Request Letter at 2. With this background you present your query concerned specifically about the
__provisions of article XVI, section 40, Texas Constitution, and the common-law doctrine of
incompatibility.
Article XVI, section 40, provides, in relevant part, that "[n]o person shall hold or exercise at
the same time, more than one civil office of emolument.,,4 TEx. CONST. art. XVI, § 40(a). The office
of school board trustee is not a civil "office of emolument" under article XVI, section 40, because it
is an uncompensated position. See TEx. EDUC. CODE ANN. § 11. 061 (d) (Vernon 2006) ("The trustees
serve without compensation."); State ex rei. Hill v. Pirtle, 887 S.W.2d 921,931 (Tex. Crim. App.
1994) ("An 'emolument' is a pecuniary profit, gain, or advantage."); see also TEx. EDUC. CODE ANN.
§ l3.155 (a), (d) (Vernon 2006) (providing that a "consolidated district is an independent school
district" and that the "powers, duties, and terms of office of the trustees are governed by Chapter 11 ");
Tex. Att'y Gen. Op. Nos. GA-0224 (2004) at 1, LA-114 (1975) at 2. Thus, article XVI, section 40,
is not implicated here and does not serve as a bar in the circumstances you describe.
The common-law doctrine of incompatibility generally prohibits a person from holding
two positions where one might impose its policies on the other or subject it to control in some
other way. Tex. Att'y Gen. Op. No. JM-129 (1984) at 1. There are three aspects to the doctrine of
incompatibility: self-appointment, self-employment, and conflicting loyalties. See Tex. Att'y Gen.
Op. No. GA-0224 (2004) at2. The self-appointment aspect prohibits "an individual from 'appointing
himself to another public position.'" Tex. Att'y Gen. Op. No. GA-0688 (2009) at 1 (quoting Tex.
Att'y Gen. Op. No. GA-0488 (2006) at 2). The self-employment aspect, "which derives from the self-
appointment aspect of incompatibility, prevents one person from holding an office and an
employment that the office supervises." Tex. Att'y Gen. Op. No. GA-0214 (2004) at 3. The
fundamental consideration under the self-employment aspect is the supervision of the subordinate
employment by the office. Tex. Att'y Gen. Op. Nos. GA-0536 (2007) at 4, JC-0371 (2001) at 2-3.
Considering the circumstances you describe and our assumption based on statutes concerning the
authority of the Nixon-Smiley CISD Board of Trustees over the Floresville ISD campus principal,
3We accept the facts that you have submitted as true. See Tex. Att'y Gen. Op. No. JM-682 (1987) at 2 (stating
this office makes no findings offact and "merely accept as true the facts" presented in the request letter). In the event
.the cooperative contract between the school districts provides that the participating schools have supervisory authority
over the DAEP campus, our opinion could change.
4There is no longer any distinction between a civil office and a public office. See Tilley v. Rogers., 405 S.W.2d
220, 224 (Tex. Civ. App.-Beaumont 1966, writ ref d n.r.e.) ("We see no difference in the meaning of public office and
civil office."); see also Tex. Att'y Gen. Op. Nos. GA-0214 (2004) at 2, JM-480 (1986) at 1, MW-415 (1981) at2 (term
"civil office" used interchangeably with ''public office").
The Honorable Edmund Kuempel - Page 3 (GA-0738)
we do not see that the Nixon-Smiley CISD appoints or employs the DAEP campus principal in the
Floresville ISD. See TEx. EDUC. CODE ANN. § 21.002(a) (Vernon 2006) (providing that a school
district employs its principals); Tex. Att'y Gen. Op. No. DM-55 (1991) at 3 (A school board
member's "employment by a different [school] district would not put him in the position of working
for himself'); supra note 3; see also Tex. Att'y Gen. Op. No. GA-0688 (2009) at 1 (stating that
"[b]ecause neither the police chief nor the city council appoints or employs the other, the self-
appointment and self-employment strands ... are not applicable"). Accordingly, we conclude that
the self-appointment and self-employment aspects are not applicable here. However, should the
. cooperative contract provide the participa.ting school districts withsupervisory authority over the
DAEP campus, our opinion could change.
The conflicting loyalties aspect applies only when the two positions are "offices." Tex. Att'y
Gen. Op. No. GA-0402 (2006) at 1-2 (citing Thomas v. Abernathy County Line Indep. Sch. Dist., 290
S.W.2d 152,152-53 (Tex. Comm'nApp. 1927,judgm'tadopted); see also Tex. Att'yGen. Op. Nos.
GA-0214 (2004) at 3-4, GA-0127 (2003) at 3. "[T]he determining factor which distinguishes a
public officer from an employee is whether any sovereign function of the government is conferred
upon the individual to be exercised by him for the benefit of the public largely independent of the
control of others." Aldine Indep. Sch. Dist. v. Standley, 280 S.W.2d 578, 583 (Tex. 1955) (quoting
Dunbar v. Brazoria County, 224 S.W.2d 738, 740 (Tex. Civ. App.-Galveston J949, writ ref'd),
disapproved on other grounds, Nat 'I Sur. Corp. v. Friendswood Indep. Sch. Dist., 433 S.W.2d 690,
693-94 (Tex. 1968). This office has opined that a person is not ordinarily an officer if his or her
actions are subject to control by another because the person cannot be said to exercise authority
"largely independent of the control of others." Tex. Att'y Gen. Op. No. GA-0688 (2009) at 2 (citing
Tex. Att'y Gen. Op. No. GA-0538 (2007) at 2); see also Tex. Att'y Gen. Op. No. GA-0393 (2006)
at 3-4. Using similar reasoning, a Texas court of appeals has determined that a school superintendent
is not an officer because a school superintendent reports to a board of trustees. See Pena v. Rio
Grande City Consolo Indep. Sch. Dist., 616 S.W.2d 658,659-60 (Tex. Civ. App.-Eastland 1981,
no writ) ("A school superintendent merely performs functions delegated to him by the trustees who
do not by such delegation abdicate their statutory authority or control."). In much the same way, a
school principal works under the supervision of the school district superintendent. See e.g., TEx.
EDUC. CODE ANN. § 11.202(b)(4), (7) (Vernon 2006); see also Tex. Att'y Gen. Op. No. DM-132
(1992) at 6 ("We believe that the principal is, therefore, not a public officer [under Aldine] for
purposes of the nepotism statutes."). Because a school principal is subject to direction from the
superintendent and does not act "largely independent of the control of others," we conclude a school
principal is not an officer under Aldine. Therefore, the conflicting loyalties aspect of incompatibility
does not preclude the dual service about which you ask.
In sum, we conclude under the facts as presented in your request that neither article XVI,
section 40, Texas Constitution, nor the common-law doctrine of incompatibility prohibits an
individual from serving as a principal of a disciplinary alternative education program campus that
serves several school districts as part of a cooperative arrangement while simultaneously serving on
the board of trustees of a member district.
The Honorable Edmund Kuempel - Page 4 (GA-0738)
SUMMARY
In the particular circumstances you provide, neither article
XVI, section 40, Texas Constitution, nor the common-law doctrine of
incompatibility prohibits an individual from simultaneously serving as
a principal of a disciplinary alternative education program campus that
serves several school districts as part of a cooperative arrangement
while simultaneously serving on the board of trustees of a member
. .district. This opinion could change under different circumstances
wherein the participating school districts had supervisory authority
over the disciplinary alternative education program campus.
Very truly yours,
ANDREW WEBER
First Assistant Attorney General
JONATHAN K. FRELS
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
Charlotte M. Harper
Assistant Attorney General, Opinion Committee