Can a Texas school board member also serve on a county education board, teach elsewhere, or work for a legislator?

Texas AG Opinion DM-0055: A School Board Member's Other Roles and Dual Office Holding

Plain-English summary

The Speaker of the Texas House asked three questions about whether members of the Hurst-Euless-Bedford Independent School District board could also hold other positions. Each turned on two doctrines: the constitutional ban on holding two "offices of emolument" (Texas Constitution article XVI, section 40) and the common-law doctrine of incompatibility, which keeps one person from holding two offices where one could impose its policies on or control the other, and also bars an officer from employing himself. The Attorney General concluded all three arrangements were allowed.

The first question was whether a school board member could serve on the board of the county education district (a school finance entity that the school district was a component of). The opinion concluded yes, for several independent reasons. Serving on the county education district board is an additional duty of the trustee's existing office, not a separate second office, so the dual-office ban does not apply. Even if it counted as a second office, board members of the county education district receive no pay (only expense reimbursement), so it is not an office of emolument. And common-law incompatibility does not apply because the Education Code itself requires county education district board members to come from the boards of the component districts, and a statute authorizing service in both positions overrides the common-law rule.

The second question was whether a school board member could teach in a different school district. The opinion said yes. A teacher is not an officer, so this is not dual office holding. Article XVI, section 40 also expressly allows state employees who are not state officers to serve on the governing bodies of school districts and cities as long as they draw no salary for that service, and school trustees are unpaid anyway. Common-law incompatibility does not bar it either: the conflicting-loyalties test applies only when both positions are offices, and a teaching job is not an office, while teaching for a different district is not self-employment (a board member could not be employed by his own district, but a different one is fine).

The third question was whether a school board member could work part-time in a state representative's office. Again yes. A legislative staff member is an employee, not an officer, so there are not two civil offices of emolument, and neither the conflicting-loyalties nor the self-employment aspect of incompatibility applies.

Currency note

This opinion was issued in 1991. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. County education districts were a short-lived school finance mechanism created in 1991, and the Texas Supreme Court later held the related funding scheme unconstitutional, so county education districts no longer exist. The Education Code was also recodified in 1995, so the section numbers here no longer correspond to current law. Verify current statutes before relying on anything here.

Common questions

Can a school board member also sit on the county education district board?
Under this 1991 opinion, yes. The opinion treated that service as an additional duty of the trustee's office rather than a second office, noted it was unpaid, and found the common-law incompatibility rule did not apply because a statute required board members of the county education district to come from the component districts.

Can a school board member teach in a different district?
Yes. A teacher is not an officer, so it is not dual office holding, and teaching for a different district is not self-employment. A board member could not be employed by his own district, but a different one is permissible.

Can a school board member work part-time for a state legislator?
Yes. A legislative staff member is an employee, not an officer, so there is no second office of emolument and no incompatibility.

What made these arrangements allowed when dual office holding is restricted?
The dual-office ban and the conflicting-loyalties branch of incompatibility apply only when a person holds two actual offices. Teaching jobs and staff jobs are employment, not offices, and the county education district seat was treated as an added duty of the existing office, not a new one.

Background and statutory framework

Article XVI, section 40 of the Texas Constitution bars holding two offices of emolument and contains a proviso allowing non-officer state employees to serve on the governing bodies of school districts, cities, and similar bodies so long as they receive no salary for that service. The common-law incompatibility doctrine (Attorney General Opinions JM-1266 (1990), JM-129 (1984), JM-97 (1983)) bars holding two offices with conflicting loyalties and bars self-employment (Letter Advisory No. 114 (1975)).

On the county education district question, the opinion relied on Education Code section 20.941(a) (the school district as a component of the county education district), section 20.943(b) (component boards choose members to serve on the county education district board), and section 20.944(c) (no compensation, expenses only), with Texas Turnpike Authority v. Shepperd (the Legislature may impose extra duties on statutory officials) for the additional-duty reasoning, and Texas Constitution article XVI, section 48 and Civil Practice and Remedies Code section 5.001 (statute may change the common law; see Attorney General Opinion JM-1157 (1990)). It noted school trustees are uncompensated under section 23.19(e). On the teaching and legislative-staff questions, it relied on the principle that teachers and staff members are not officers (Letter Advisory No. 137 (1977); Attorney General Opinion H-10 (1973)) and on Letter Advisory Nos. 114 (1975) and 54 (1973) regarding incompatibility.

Citations

Constitutional and statutory provisions:

• Tex. Const. art. XVI, § 40 (ban on holding two offices of emolument; proviso for non-officer state employees on local governing bodies)
• Tex. Const. art. XVI, § 48 and Civ. Prac. & Rem. Code § 5.001 (Legislature may change the common law)
• Education Code § 20.941(a), § 20.943(b), § 20.944(c) (county education districts; board membership; no compensation)
• Education Code § 23.19(e) (school trustees uncompensated)

Cases:

• Texas Turnpike Authority v. Shepperd, 279 S.W.2d 302 (Tex. 1955)

Prior Attorney General opinions and advisories referenced: JM-1266 (1990), JM-129 (1984), JM-97 (1983), JM-1157 (1990), H-10 (1973), Letter Advisory Nos. 114 (1975), 137 (1977), 54 (1973).

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0055
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1991/dm0055.pdf

Original opinion text

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

Office of the Attorney General
State of Texas

DAN MORALES
Attorney General

November 8, 1991

Honorable Gib Lewis
Speaker
Texas House of Representatives
P.O. Box 2910
Austin, Texas 78768-2910

Opinion No. DM-55

Re: Whether service on the board of a county education district by a board 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 serving 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, § 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 office 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 to his office. Attorney General Opinion JM-1266 (1990); Letter Advisory No. 114 (1975).

You first ask whether 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 is a component of the county education district of Tarrant County. See Educ. Code § 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. § 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 Texas Turnpike Authority 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 § 20.944(c); see also id. § 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 office 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, § 48; Civ. Prac. & Rem. Code § 5.001; see also Attorney General Opinion JM-1157 (1990).

Your second question is whether a member of the board of the Hurst-Euless-Bedford 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:

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 individuals 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 § 23.19(e).

Further, the common-law doctrine of incompatibility would not prohibit a school board member from working for another district. See generally Letter Advisory Nos. 114 (1975); 54 (1973) (language from article XVI, 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 Opinion JM-1266. A person has conflicting 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 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.

SUMMARY

Neither the prohibition on dual office holding set out in article XVI, section 40, of the Texas 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 ZOLLIE STEAKLEY (Ret.)
Special Assistant Attorney General

RENEA HICKS
Special Assistant Attorney General

MADELEINE B. JOHNSON
Chair, Opinion Committee

Prepared by Sarah Woelk
Assistant Attorney General

[1] Your specific question 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 governing county education districts make no reference to the position of president of the board. There is a reference to the "chairman." Educ. Code § 20.944(b) (chairman may call meetings); see also id. § 20.943(e) (commissioner of education may adopt rules relating to the operation and administration 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 purposes. For purposes of your question, there is no legal distinction between the chairman and other board members.

[2] The fact that the two districts in question are both in the same county education district does not raise an issue of self-employment. The board member in question is not a member of the board of the county education district. We need not address whether incompatibility would arise if the board member were a member of the board of the county education district that encompassed both districts.