Can a part-time college instructor get paid to serve on a water district board?

TX AG Opinion GA-0428: Can a part-time college instructor be paid on a utility district board?

Plain-English summary

A part-time instructor at Austin Community College was appointed to the board of directors of a municipal utility district and had been serving without pay. A state representative asked the Attorney General whether the instructor could be compensated for that board service. The answer in 2006 was yes.

The starting point is article XVI, section 40 of the Texas Constitution. Subsection (a) bars holding more than one "civil office of emolument" at the same time, and subsection (b) generally says that state employees who serve on the governing bodies of school districts, cities, towns, or other local districts may not receive a salary for that service. But subsection (b) contains an exception: a faculty member (or retired faculty member) of a public institution of higher education may receive compensation for serving on the board of a water district created under article XVI, section 59 or article III, section 52. A municipal utility district is exactly that kind of water district.

So the case turned on whether a part-time community college instructor is a "faculty member" of a public institution of higher education. Austin Community College is undisputedly a public institution of higher education. The representative pointed to an Education Code definition (section 51.101) that limits "faculty member" to full-time employees, but the Attorney General explained that definition applies only to one subchapter, the one on faculty development leaves of absence, and not to the constitutional provision. Finding nothing in the 2003 adoption history of the constitutional exception suggesting an intent to exclude part-timers, the opinion concluded a part-time instructor is a "faculty member" for purposes of section 40(b)(2). As a result, the instructor could receive the fees of office a district director is entitled to under Water Code section 49.060(a), up to $150 a day for each day actually spent performing director duties.

Currency note

This opinion was issued in 2006. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The Water Code director-fee provision (the daily fee was capped at $150 in 2005) and the Education Code definitions cited here can change over time. Anyone weighing whether a faculty member can be paid for water district board service today should check the current article XVI, section 40 framework and the current Water Code fee provision, not the 2006 figures.

Who this opinion affected (as of 2006)

Part-time community college faculty on water district boards: The opinion told them they fell within the constitutional exception and could be compensated for serving on a municipal utility district board, not just serve without pay.

Municipal utility districts and other water districts: The opinion confirmed a district could pay a director who was a part-time community college instructor the statutory fees of office under Water Code section 49.060(a).

Public colleges and their employees generally: The opinion clarified that the full-time limitation in Education Code section 51.101 is confined to the faculty-development-leave subchapter and does not narrow the constitutional term "faculty member."

Common questions

Could the part-time instructor be paid for serving on the district board?
Yes. According to the opinion, the constitutional exception in article XVI, section 40(b)(2) lets a faculty member of a public institution of higher education be compensated for serving on a water district board, and a part-time instructor qualifies.

How much could a district director be paid?
The opinion pointed to Water Code section 49.060(a), under which a director was entitled to fees of office of not more than $150 a day for each day actually spent performing director duties.

Doesn't the Constitution bar state employees from being paid for local board service?
Generally yes, but the opinion explained that section 40(b) carves out faculty members of public higher education institutions serving on water districts created under article XVI, section 59 or article III, section 52.

Why didn't the full-time definition of "faculty member" control?
The opinion explained that the Education Code section 51.101 definition, which requires full-time employment, applies only to the subchapter on faculty development leaves, not to the constitutional provision, and nothing in the 2003 history showed an intent to exclude part-timers.

Background and statutory framework

Municipal utility districts are created under article XVI, section 59 of the Texas Constitution and chapter 54 of the Water Code (Tex. Water Code Ann. §§ 54.011, 54.014-.037 (Vernon 2002 & Supp. 2005)). Chapter 49, applicable to all general law districts, entitles a director to "fees of office of not more than $150 a day for each day the director actually spends performing the duties of a director" (id. § 49.060(a) (Vernon Supp. 2005)). Article XVI, section 40(a) bars holding "more than one civil office of emolument" at the same time, and section 40(b) provides that state employees who are not state officers may serve on the governing bodies of school districts, cities, towns, or other local governmental districts but "may not receive a salary" for that service, with an exception: "a faculty member or retired faculty member of a public institution of higher education may receive compensation for serving as a member of a governing body of a water district created under Section 59 of this article or under Section 52, Article III" (Tex. Const. art. XVI, § 40(a), (b)(2); art. III, § 52).

Austin Community College is part of the Austin Community College District (Tex. Educ. Code Ann. § 130.166 (Vernon Supp. 2005)), is subject to the Texas Higher Education Coordinating Board's control of public junior colleges (id. § 130.001(a) (Vernon 2002)), and is an "institution of higher education" under the Education Code definition (id. § 61.003(8) (Vernon Supp. 2005)), so it is undisputedly a "public institution of higher education" for section 40(b). On whether a part-time instructor is a "faculty member," the opinion noted that Education Code section 51.101(3) defines "faculty member" as someone employed "on a full-time basis," but that definition is prefaced "in this subchapter" and is limited to subchapter C, governing faculty development leaves of absence (Tex. Educ. Code Ann. § 51.101(3) (Vernon 1996)). Finding nothing in the 2003 adoption history of the constitutional exception indicating an intent to exclude part-time instructors, the opinion concluded a part-time community college instructor is a "faculty member" under article XVI, section 40(b)(2) and may receive the section 49.060(a) fees of office.

Citations

Statutes:

• Tex. Const. art. XVI, § 40(a), (b)(2); art. XVI, § 59; art. III, § 52
• Tex. Water Code Ann. §§ 49.060(a), 54.011, 54.014-.037 (Vernon 2002 & Supp. 2005)
• Tex. Educ. Code Ann. §§ 51.101(3) (Vernon 1996); 61.003(8), 130.166 (Vernon Supp. 2005); 130.001(a) (Vernon 2002)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0428
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2006/ga0428.pdf

Original opinion text

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

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT

May 12, 2006

The Honorable Mike Krusee
Chair, Committee on Transportation
Texas House of Representatives
Post Office Box 2910
Austin, Texas 78768-2910

Opinion No. GA-0428

Re: Whether an individual employed as a part-time instructor at a community college may be compensated for simultaneous service as a member of the board of directors of a municipal utility district (RQ-0409-GA)

Dear Representative Krusee:

You ask whether an individual employed as a part-time instructor at a community college may be compensated for simultaneous service as a member of the board of directors of a municipal utility district.[1]

A letter accompanying your request indicates that the person in question is a part-time instructor at Austin Community College.[2] On January 18, 2005, he was appointed as a member of the governing board of The Meadows at Chandler Creek Municipal Utility District (the "district"). He has served since that time without compensation. See MUD Letter, supra note 2, at 1.

Municipal utility districts are created under article XVI, section 59 of the Texas Constitution and under chapter 54 of the Water Code. See TEX. WATER CODE ANN. § 54.011 (Vernon 2002) ("[a] municipal utility district may be created under and subject to the authority, conditions, and restrictions of Article XVI, Section 59, of the Texas Constitution"); id. §§ 54.014-.037 (Vernon 2002 & Supp. 2005) (creation or conversion of a municipal utility district). Chapter 54 is part of title 4 of the Water Code, entitled "General Law Districts." Chapter 49, which applies to all General Law Districts, provides that a director of a district "is entitled to receive fees of office of not more than $150 a day for each day the director actually spends performing the duties of a director." Id. § 49.060(a) (Vernon Supp. 2005).

Article XVI, section 40(a) of the Texas Constitution prohibits an individual from holding "at the same time, more than one civil office of emolument." TEX. CONST. art. XVI, § 40(a). A proviso to subsection (a) applies to state employees as well as officers. Subsection (b) of article XVI, section 40 declares that

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. Such State employees or other individuals may not receive a salary for serving as members of such governing bodies, except that:

. . . .

(2) a faculty member or retired faculty member of a public institution of higher education may receive compensation for serving as a member of a governing body of a water district created under Section 59 of this article or under Section 52, Article III, of this constitution.

Id. art. XVI, § 40(b)(2). The question before us is whether a part-time instructor at Austin Community College is a "faculty member . . . of a public institution of higher education." Id. If so, then he or she may receive the fees of office to which an individual is entitled by section 49.060(a) of the Water Code for performing the duties of a director. See TEX. WATER CODE ANN. § 49.060(a) (Vernon Supp. 2005).

Austin Community College is part of the Austin Community College District, as described by section 130.166 of the Education Code. See TEX. EDUC. CODE ANN. § 130.166 (Vernon Supp. 2005). The Texas Higher Education Coordinating Board (the "coordinating board") is required to "exercise general control of the public junior colleges of Texas." Id. § 130.001(a) (Vernon 2002). Chapter 61 of the Education Code, which establishes and describes the duties of the coordinating board, defines "institution of higher education" as "any public technical institute, public junior college, public senior college or university, medical or dental unit, or other agency of higher education as defined in this section." Id. § 61.003(8) (Vernon Supp. 2005). Thus it is undisputed that Austin Community College is a "public institution of higher education" for purposes of article XVI, section 40(b) of the Texas Constitution. TEX. CONST. art. XVI, § 40(b). The remaining question is whether a part-time instructor is a "faculty member" for purposes of article XVI, section 40(b). Id.

You note that section 51.101 of the Education Code defines "faculty member" as "a person who is employed by an institution of higher education on a full-time basis as a member of the faculty or staff and whose duties include teaching, research, administration, including professional librarians, or the performance of professional services." TEX. EDUC. CODE ANN. § 51.101(3) (Vernon 1996) (emphasis added); MUD Letter, supra note 2, at 2. This definition is, however, restricted to subchapter C of chapter 51, which governs "Faculty Development Leaves of Absence." TEX. EDUC. CODE ANN. ch. 51, subch. C (Vernon 1996 & Supp. 2005). Section 51.101, the definitional portion of the subchapter, is prefaced by the phrase "in this subchapter." Id. § 51.101 (Vernon 1996). Thus this "full-time basis" limitation on the definition of "faculty member" applies only to subchapter C of chapter 51. Id. ch. 51, subch. C (Vernon 1996 & Supp. 2005).

We have found nothing in the history of the adoption of this provision in 2003 to indicate that the legislature that proposed it, or the voters who ratified it, intended to exclude part-time instructors from the meaning of "faculty member." It is also apparent that a part-time instructor at a community college is a "faculty member . . . of a public institution of higher education" for purposes of article XVI, section 40(b) of the Texas Constitution. TEX. CONST. art. XVI, § 40(b)(2).

We conclude that an individual employed as a part-time instructor at a community college may be compensated for simultaneous service as a member of the board of directors of a municipal utility district.

SUMMARY

An individual employed as a part-time instructor at a community college may be compensated for simultaneous service as a member of the board of directors of a municipal utility district.

BARRY R. MCBEE
First Assistant Attorney General

ELLEN L. WITT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Rick Gilpin
Assistant Attorney General, Opinion Committee

Footnotes

1. Letter from Honorable Mike Krusee, Chair, House Committee on Transportation, to Honorable Greg Abbott, Attorney General of Texas (Oct. 31, 2005) (on file with the Opinion Committee, also available at www.oag.state.tx.us) [hereinafter Request Letter].

2. Letter from Nancy Beleckis, President, The Meadows at Chandler Creek Municipal Utility District, to Honorable Mike Krusee (Oct. 26, 2005) (submitted as part of Request Letter, on file with the Opinion Committee, also available at www.oag.state.tx.us) [hereinafter MUD Letter].