Can a Texas school district police chief be paid for serving on a city council?

Plain-English summary

Dan W. Heard, the Calhoun County Criminal District Attorney, asked the Attorney General whether a school district chief of police may be paid for serving on a city council. The answer turned on a specific part of the Texas Constitution. Article XVI, section 40(a) bars holding more than one "civil office of emolument" at a time. Section 40(b), added in 2001, addresses a different group: state employees or other individuals who receive part of their compensation from state funds and who are not state officers. Such people are not barred from serving on the governing bodies of school districts, cities, towns, or other local districts, but they generally may not receive a salary for that service, with an exception that lets a schoolteacher or retired school administrator be paid for serving on such a body.

The request assumed the police chief was compensated from state funds, which puts public school district employees within section 40(b). The first question was whether he fit the "schoolteacher" exception. The opinion noted that no Texas court had construed "schoolteacher" in this provision, and that a prior AG opinion (GA-0530) had said the term turns on whether the individual is employed to instruct students in a school setting in a way that yields curriculum credit. Because the requestor told the AG that the police chief's job description included no teaching responsibilities, the opinion concluded that, on those facts, the chief is not a schoolteacher within section 40(b)(1), and so he may not be compensated for service on a city council.

The second question was whether subsection (a) applied to the police chief independently of subsection (b). The opinion said it does not. Subsections (a) and (b) are not in conflict: (a) governs persons holding a civil office of emolument, while (b) is an independent provision addressing state-funded employees who are not state officers. The opinion treated the police chief's situation as governed by subsection (b).

Currency note

This opinion was issued in 2011. Subsequent statutory amendments, court decisions, or later Attorney General 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.

What the opinion meant for those who asked

The county DA and the officials who asked (as the opinion held for them): The opinion told them that, on the facts presented (a police chief with no teaching duties), the chief could not be paid for serving on the city council, because he did not fit the schoolteacher exception in section 40(b).

School district police and similar state-funded employees (as the opinion described it): Under the opinion, a state-funded employee who is not a state officer may serve on a local governing body but generally cannot be paid for it, unless the schoolteacher or retired-school-administrator exception applies.

On the "schoolteacher" line (where the opinion relied on the facts): The opinion drew the conclusion from the requestor's statement that the job description had no teaching responsibilities. It treated the schoolteacher determination as fact-dependent, consistent with the earlier opinion it cited.

On subsection (a) (as the opinion clarified): The opinion explained that subsection (a)'s "civil office of emolument" ban did not separately control here, because subsections (a) and (b) are independent and not in conflict, and the police chief's question fell under subsection (b).

Common questions

Can a Texas school district police chief serve on a city council at all?
Yes, serving is allowed. The opinion's issue was pay: under section 40(b), a state-funded employee who is not a state officer generally may serve on a local governing body but may not be paid for it unless an exception applies.

Why doesn't the schoolteacher exception cover a police chief?
Because, the opinion concluded, the chief's job had no teaching responsibilities, so he was not a "schoolteacher" within section 40(b)(1) on the facts presented.

Does this depend on the specific job?
Yes. The opinion treated whether someone is a "schoolteacher" as a fact question tied to whether the person instructs students for curriculum credit, and it relied on the stated job description here.

What about the constitution's ban on holding two offices?
The opinion said section 40(a)'s "civil office of emolument" ban did not separately apply to this question; the police chief's situation was governed by the independent subsection (b).

Background and statutory framework

Article XVI, section 40(a) of the Texas Constitution bars a person from holding more than one civil office of emolument at the same time, with exceptions not relevant here. Tex. Const. art. XVI, § 40(a). Section 40(b), added in 2001, provides that state employees or other individuals who receive part of their compensation from state funds and who are not state officers are not barred from serving on the governing bodies of school districts, cities, towns, or other local governmental districts, but generally may not receive a salary for that service, except that a schoolteacher or retired school administrator may be compensated for serving on such a body. Tex. Const. art. XVI, § 40(b); id. § 40(b)(1).

The opinion relied on the requestor's statement that the police chief's job description had no teaching responsibilities, and on its prior construction of "schoolteacher" as turning on whether a person instructs students in a school setting for curriculum credit. It concluded that subsections (a) and (b) are independent and not in conflict, with (b) governing state-funded employees who are not state officers.

Citations

Statutes:

• Tex. Const. art. XVI, § 40(a)
• Tex. Const. art. XVI, § 40(b)
• Tex. Const. art. XVI, § 40(b)(1)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0874
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2011/ga0874.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts were corrected; the linked PDF is authoritative.

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 1001 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.[1]

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 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:

(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).

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 1. No Texas court has considered the term "schoolteacher" as used in subsection (b)(1). 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)(1), 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 2001, 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).

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.

Very truly yours,

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

[1] Letter from Honorable Dan W. Heard, Calhoun County Criminal District Attorney, to Opinion Committee, Office of the Texas Attorney General at 1 (Mar. 3, 2011), https://www.oag.state.tx.us/opin/index_rq.shtml ("Request Letter").