Untitled Texas Attorney General Opinion ( 2004 )

ATTORNEYGENERALOF TEXAS
GREG ABBOTT
November 23,2004
The Honorable Donna R. Bennett Opinion No. GA-0273
Henderson County District Attorney
173rd Judicial District Re: Whether the district attorney of the 173rd
109 West Corsicana, Suite 103 Judicial District may simultaneously hold a part-
Athens, Texas 7575 1 time teaching position at Trinity Valley Community
College and receive compensation for doing so
(RQ-0234-GA)
Dear Ms. Bennett:
You ask whether the district attorney ofthe 173rd Judicial District may simultaneously hold
a part-time teaching position at Trinity Valley Community College’ and receive compensation for
doing so?
You indicate that the district attorney of the 173rd Judicial District is subject to the
Professional Prosecutors Act, chapter 46 of the Government Code. See TEX. GOV’T CODE ANN.
$5 46.001(3)-.002(l) (Vernon 2004). As such, the district attorney is barred from engaging in the
private practice of law. Id. 5 46.005(a). The teaching profession, however, does not generally
‘TheTrinity Valley CommunityCollege Districtis establishedby section 130.205ofthe Education Code. That
statute provides:
The service area of the Trinity Valley Community College District
includes the territory within:
(1) the part of the Terre11Independent School District located in Hunt
county;
(2) Anderson, Henderson, Kaufman, and Rains counties; and
(3) Van Zandt County, except the territory within the Grand Saline,
Lindak, and Van independent school districts.
TEX.EDUC.CODEANN.9 130.205(Vernon 2002).
‘See Letter from Honorable Donna R. Bennett, Henderson County District Attorney, 173rd Judicial District,
to Honorable Greg Abbott, Texas Attorney General, at 1 (May 26, 2004) (on tile with the Opinion Committee, also
available at http://www.oag.state.tx.us)[hereinafterRequest Letter].
The Honorable Donna R. Bennett - Page 2 (GA-0273)
involve the representation of clients or the provision of other legal services and thus does not
constitute the private practice of law. See id. 5 81.101(a) (Vernon Supp. 2004-05) (“[T]he ‘practice
of law’ means the preparation ofa pleading or other action document incident to an action or special
proceeding or the management of the action or proceeding on behalf of a client before a judge in
court as well as a service rendered out of court, including the giving of advice or the rendering of any
service requiring the use of legal skill or knowledge, such as preparing a will, contract, or other
instrument, the legal effect of which under the facts and conclusions involved must be carefully
determined.“). Consequently, the Professional Prosecutors Act does not prohibit a district attorney
from holding a teaching position at a community college. You wish to know whether the district
attorney, for purposes of dual office holding, may simultaneously hold a part-time teaching position
at Trinity Valley Community College. See Request Letter, supra note 1, at 1.
Article XVI, section 40 of the Texas Constitution prohibits an individual f?om holding at the
same time more than one “civil office of emolument.” TEX. CONST. art. XVI, 5 40(a). It is well
established that a teacher employed by a governmental body does not hold a civil office of
emolument. See Ruiz Y. State, 540 S.W.2d 809,811 (Tex. Civ. App.-Corpus Christi 1976, no writ)
(public school teacher does not hold an office of emolument); Tilley v. Rogers, 405 S.W.2d 220,224
(Tex. Civ. App.-Beaumont 1966, writ ref d n.r.e.) (a professor at a state-supported institution of
higher education is an employee rather than an officer); see also Tex. Att’y Gen. LO-93-096,
at 1 (a compensated teaching position with a state university is an “employment” rather than an
“office”). Because an instructor at a community college does not hold an office of emolument,
article XVI, section 40 does not bar a district attorney from simultaneously holding the position of
instructor at a community college.
Article XVI, section 40 also contains a proviso permitting “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” to serve as members of the governing bodies of
various local governmental districts, provided they receive no compensation for doing so. TEX.
CONST. art. XVI, § 40(b). Although a district attorney does indeed receive compensation from funds
of the state, a community college instructor is not a member of a governing body of a local
governmental district. Thus, this proviso to article XVI, section 40 does not prohibit a district
attorney from receiving a salary for serving as an instructor at a community college.3
We must also address the common-law doctrine of incompatibility, which has three aspects:
self-appointment, self-employment, and conflicting loyalties. See Tex. Att’y Gen. Op. Nos.
‘You refer to Letter Advisory No. 55 (1973) for the proposition that article II, section 1 of the Texas
Constitution,the separation ofpowers doctie, prohibits a district attorneyfrom simultaneouslyserving as an instructor
at a state-supportedinstitution ofhigher education,because the positions exist in different branches of government. See
Request Letter, supro note 1, at 1; Tex. Att’y Gen. LA-55 (1973) attached to Request Letter. This interpretation of
article II, section I has been abandoned by this of&e, in light of subsequentjudicial decisions and attorney general
opinions. See, e.g., Turner Y. Trinitylndep. Sch. D&f.Bd. ofTrustees, 700 S.W.2d 1,2 (Tex. App.-Houston [14thDist.]
1983, no wit) (school board trustee permitted to also serve as justice of the peace); Tex. AR’y Gen. Op. No. JM-519
(1986); Tex. Att’y Gen. LO-92-004. In the usual circumstance, the separation ofpowers doctrine poses no bar to dual
oftice holding. See Tex. Att’y Gen. Op. Nos. GA-0021 (2003), K-0216 (2000).
The Honorable Donna R. Bennett - Page 3 (GA-0273)
GA-0224 (2004) at 2, GA-0032 (2003) at 4. Neither self-appointment nor self-employment are
applicable here because a district attorney neither appoints nor supervises community college
instructors. Moreover, district attorneys are elected officials and, as such, are neither appointed nor
supervised by community college instructors. The third aspect of common-law incompatibility,
conflicting loyalties, was first addressed by a Texas court in 1927. See Thomas v. Abernathy County
Line Indep. Sch. Dist., 290 S.W. 152, 153 (Tex. Comm’n App. 1927, judgm’t adopted) (offices of
school trustee and city alderman are incompatible). It is generally held that both positions must be
“offices” in order for the conflicting loyalties doctrine to be applicable. See Tex. Att’y Gen. Op.
Nos. GA-0169 (2004) at 2, JM-1266 (1990). As wehavenoted, acommunitycollege instructordoes
not hold an offke of emolument. Accordingly, the conflicting loyalties aspect of common-law
incompatibility does not bar a district attorney from serving at the same time as a community college
instructor.
Weconclude that the district attomeyofthe 173rd Judicial District maysimultaneouslyhold
a part-time teaching position at Trinity Valley Community College and receive compensation for
doing so.
The Honorable Donna R. Bennett - Page 4 (GA-0273)
SUMMARY
The district attorney of the 173rd Judicial District may
simultaneously hold a compensated part-time teaching position at
Trinity Valley Community College.
Attorney General of Texas
BARRY R. MCBEE
First Assistant Attorney General
DON R. WILLETT
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
Rick Gilpin
Assistant Attorney General, Opinion Committee