Can a state university professor be paid for serving on a school board, city council, or water district board in Texas?

Plain-English summary

A state senator asked whether the word "schoolteacher" in the 2001 amendment to article XVI, section 40 of the Texas Constitution covers an instructor or professor employed by a state university. Section 40 generally bars holding more than one paid public office, but since 1972 it has let state employees who are not state officers serve on local governing bodies (school districts, cities, towns, and other local governmental districts) without pay. The 2001 amendment carved out an exception so that "a schoolteacher, retired schoolteacher, or retired school administrator" may be compensated for such service.

The Attorney General concluded that "schoolteacher" does not include university professors or instructors. So a professor may sit on a local governmental district board, but may not be paid for it. Several things pointed the same way. The common meaning of "schoolteacher" is someone who teaches below the college level. The Education Code itself calls elementary and secondary instructors "teachers" but calls college instructors "faculty members." Most tellingly, the legislative history showed the choice was deliberate: the resolution as filed would have allowed "college professors" to be paid, but Representative Bosse offered an amendment that struck "college professors" from the ballot language, and he explained on the floor that the change narrowed the measure to "schoolteachers, retired schoolteachers, and retired school administrators." A House Research Organization analysis confirmed the same history. Reading all of that together, the opinion held the amendment's pay exception does not reach university faculty.

Currency note

This opinion was issued in 2002. 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

Senator Shapiro (what the opinion held): The opinion answered that "schoolteacher" in article XVI, section 40 does not include a state university professor or instructor, so such a person may serve on a local governmental district board but may not receive a salary for the service.

University professors and instructors (what the opinion held): The opinion treated them as state employees covered by the no-salary rule of section 40(b), not by the schoolteacher pay exception. They could serve, just not for pay.

Schoolteachers, retired teachers, and retired school administrators (what the opinion noted): The opinion described these as the groups the 2001 amendment actually allowed to be compensated for local-board service, after lawmakers removed "college professors" from the measure.

Common questions

Can a Texas university professor be paid for sitting on a school board or water district board?
Under this opinion, no. The Attorney General concluded a university professor is not a "schoolteacher" under article XVI, section 40, so the professor can serve without pay but cannot receive a salary for the service.

Who can be paid for local-board service under the 2001 amendment?
The amendment allowed a schoolteacher, retired schoolteacher, or retired school administrator to receive compensation for serving on the governing body of a school district, city, town, or local governmental district, including a water district.

Why didn't "schoolteacher" include college faculty?
Because the term commonly means a teacher below the college level, the Education Code distinguishes "teachers" from college "faculty members," and the legislative history showed lawmakers deliberately struck "college professors" from the ballot language before adoption.

Can a professor still serve on the board at all?
Yes. The opinion concluded a university professor may serve on a local governmental district's governing board; the limit is only that the professor may not be paid a salary for that service.

Background and statutory framework

Article XVI, section 40(a) prohibits simultaneously holding more than one office of emolument. Tex. Const. art. XVI, § 40(a). Since 1972, the section 40(b) proviso has allowed state employees and others compensated from state funds, who are not state officers, to serve on the governing bodies of school districts, cities, towns, or other local governmental districts, but "may not receive a salary for serving." Id. § 40(b). (A county is not a "local governmental district" for this purpose. County of Maverick v. Ruiz, 897 S.W.2d 843, 847 (Tex. App.-San Antonio 1995, no writ); Tex. Att'y Gen. Op. No. JC-0074 (1999).) The 2001 amendment added an exception letting a schoolteacher, retired schoolteacher, or retired school administrator receive compensation for such service, including on a water district board.

Constitutional provisions are construed under the same rules as statutes. Booth v. Strippleman, 61 Tex. 378 (Tex. 1884); Rooms With A View, Inc. v. Private Nat'l Mortgage Ass'n, Inc., 7 S.W.3d 840, 844 (Tex. App.-Austin 1999, pet. denied); Tex. Att'y Gen. Op. No. JC-0043 (1999). Words with a technical or particular meaning are construed accordingly, and courts ascertain legislative intent considering the old law, the evil, and the remedy. Tex. Gov't Code Ann. § 311.011(b) (Vernon 1998); § 312.005 (Vernon 1998). "Schoolteacher" commonly means a person who teaches below the college level, and the Education Code labels secondary instructors "teachers" but college instructors "faculty members." Tex. Educ. Code Ann. § 21.101 (Vernon 1996); § 51.101. The decisive point was legislative history: House Joint Resolution 85 as filed would have allowed "college professors" to be paid, but a floor amendment struck that phrase, and the sponsor explained the change limited the exception to schoolteachers, retired schoolteachers, and retired school administrators. The House Research Organization analysis confirmed the history. The opinion concluded "schoolteacher" excludes university faculty.

Citations

Statutes and constitutional provisions:

• Tex. Const. art. XVI, § 40(a)
• Tex. Const. art. XVI, § 40(b)
• Tex. Gov't Code Ann. § 311.011(b) (Vernon 1998)
• Tex. Gov't Code Ann. § 312.005 (Vernon 1998)
• Tex. Educ. Code Ann. § 21.101 (Vernon 1996)
• Tex. Educ. Code Ann. § 51.101

Cases and opinions:

• County of Maverick v. Ruiz, 897 S.W.2d 843, 847 (Tex. App.-San Antonio 1995, no writ)
• Booth v. Strippleman, 61 Tex. 378 (Tex. 1884)
• Rooms With A View, Inc. v. Private Nat'l Mortgage Ass'n, Inc., 7 S.W.3d 840, 844 (Tex. App.-Austin 1999, pet. denied)
• Tex. Att'y Gen. Op. No. JC-0074 (1999)
• Tex. Att'y Gen. Op. No. JC-0043 (1999)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/john-cornyn/jc-0577
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2002/jc0577.pdf

Original opinion text

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

OFFICE OF THE ATTORNEY GENERAL . STATE OF TEXAS
JOHN CORNYN

November 19, 2002

The Honorable Florence Shapiro Opinion No. JC-0577
Chair, Senate Committee on State Affairs
Texas State Senate Re: Whether an adjunct professor employed by a
P.O. Box 12068 state university is a "schoolteacher" for purposes
Austin, Texas 78711-2068 of article XVI, section 40 of the Texas
Constitution (RQ-0564-JC)

Dear Senator Shapiro:

You have requested our opinion regarding a recent amendment to the "state employee" proviso to article XVI, section 40 of the Texas Constitution. Specifically, you ask whether the provision that permits a "schoolteacher" to receive a salary for serving as a member of the governing board of a local governmental district includes within its ambit instructors or professors employed by a state university. For the reasons set forth below, we conclude that it does not, and that as a result, a university professor may serve on the governing board of a local governmental district, but may not receive a salary for such service.

Article XVI, section 40 of the Texas Constitution prohibits the simultaneous holding of more than one "office of emolument." See TEX. CONST. art. XVI, § 40(a). Since 1972, it has also included a proviso that allows "[s]tate 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 school districts, cities, towns, or other local governmental districts." Id. § 40(b). The provision further states, however, that "[s]uch state employees or other individuals may not receive a salary for serving as members of such governing bodies." Id. In 2001, the voters adopted an amendment to the article XVI, section 40 proviso to permit certain persons to receive compensation for service as members of local governing boards. The proviso now states:

(b) 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 a schoolteacher, retired 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, including a water district created under Section 59, Article XVI or Section 52, Article III.

Id. (emphasis added). You ask whether the term "schoolteacher" may be read to include an instructor or professor at a state university.

We initially note that the construction of constitutional provisions is generally governed by the same rules as those governing the interpretation of statutes and codes. See Booth v. Strippleman, 61 Tex. 378 (Tex. 1884); accord Rooms With A View, Inc. v. Private Nat'l Mortgage Ass'n, Inc., 7 S.W.3d 840, 844 (Tex. App.-Austin 1999, pet. denied); Tex. Att'y Gen. Op. No. JC-0043 (1999). The Code Construction Act provides that "[w]ords and phrases that have acquired a technical or particular meaning, whether by legislative definition or otherwise, shall be construed accordingly." TEX. GOV'T CODE ANN. § 311.011(b) (Vernon 1998). The common meaning of "schoolteacher" is "a person who teaches in a school below the college level." AMERICAN HERITAGE DICTIONARY 1560 (4th ed. 2000). Furthermore, the Texas Education Code refers to instructors at the elementary and secondary level as "teacher[s]," while it denominates instructors at the college level as "faculty member[s]." Compare TEX. EDUC. CODE ANN. § 21.101 (Vernon 1996), with id. § 51.101. But the clearest example of what the legislature intended by adopting the resolution placing the amendment to article XVI, section 40 on the ballot is provided by the legislative history of the resolution.

"In interpreting a statute, a court shall diligently attempt to ascertain legislative intent and shall consider at all times the old law, the evil, and the remedy." TEX. GOV'T CODE ANN. § 312.005 (Vernon 1998). As introduced, House Joint Resolution 85 would have amended the constitutional provision to read, "except that a schoolteacher or retired schoolteacher may receive compensation for serving as a member of a governing body of a water district created under Section 59, Article XVI or Section 52, Article III." Tex. H.J. Res. 85, 77th Leg., R.S. (2001) (introduced version, section 1(b)). The ballot proposition included with the joint resolution, however, was quite different:

SECTION 2. This proposed constitutional amendment shall be submitted to the voters at an election to be held November 6, 2001. The ballot shall be printed to provide for voting for or against the proposition: "The constitutional amendment to allow current and retired public school teachers and college professors, and retired public school administrators to receive compensation for serving on the governing bodies of school districts, cities, towns, or other local government districts."

Tex. H.J. Res. 85, 77th Leg., R.S. (2001) (introduced version, section 2) (emphasis added).

The enrolled version of the resolution conforms to the amendment adopted by the voters on November 6, 2001. But section 2 of the resolution's enrolled version, which sets forth the required ballot language, differs greatly from that of the introduced version:

SECTION 2. This proposed constitutional amendment shall be submitted to the voters at an election to be held November 6, 2001. The ballot shall be printed to provide for voting for or against the proposition: "The constitutional amendment to allow current and retired public school teachers and retired public school administrators to receive compensation for serving on the governing bodies of school districts, cities, towns, or other local governmental districts, including water districts."

Tex. H.J. Res. 85, 77th Leg., R.S. (2001) (enrolled version, section 2). The change in the ballot language was the result of an amendment to the resolution offered by Representative Fred Bosse and adopted by the House of Representatives on April 30, 2001. The amendment reads:

Amend HJR 85 as follows:
(1) On page 2, strike lines 17 and 18 and substitute: "as members of such governing bodies, except that a schoolteacher, retired schoolteacher, or retired school administrator may receive compensation for serving as a".
(2) On page 3, line 7, strike "and college professors,".
(3) Amend the caption of the resolution to conform to the body of the resolution.

H.J. OF TEX., 77th Leg., R.S. 1666 (2001) (amendment by Representative Bosse made April 30, 2001 on the Floor of the House). In testimony, Representative Bosse confirmed the removal of the term "college professors" from the ballot language:

REP. BOSSE: There was a discrepancy between the ballot language and the bill itself, and this narrows it down to assure that it only applies to schoolteachers, retired schoolteachers, and retired school administrators.

Debate on Tex. H.J. Res. 85 on the Floor of the House, 77th Leg., R.S. (Apr. 30, 2001) (tape available from House Video/Audio Department).

Finally, an analysis of proposed constitutional amendments by the House Research Organization, issued on August 13, 2001, contains the following reference to ballot proposition eleven:

As filed, HJR 85 would have worded the ballot proposition to allow college professors, as well as school teachers, retired teachers, and retired school administrators, to receive pay for serving on a local government board. The House-approved version of HJR 85 would have limited the change to teachers serving on water district boards, but the Senate amended the proposal to include the governing boards of school districts, cities, towns, and other local governments as well.

HOUSE RESEARCH ORGANIZATION, TEX. HOUSE OF REPRESENTATIVES, FOCUS REPORT, CONSTITUTIONAL AMENDMENTS PROPOSED FOR NOVEMBER 2001 BALLOT 33-35 (Aug. 13, 2001) (analysis of Proposition 11, HJR 85). We conclude that the term "schoolteacher" as used in the amended version of article XVI, section 40 does not include instructors or professors employed by a state university. Accordingly, a university professor may serve on the governing board of a local governmental district, but may not receive a salary for such service.

SUMMARY

The term "schoolteacher" in article XVI, section 40 of the Texas Constitution does not include instructors or professors employed by a state university. Thus, a university professor may serve on the governing board of a local governmental district, but may not receive a salary for such service.

Very truly yours,

JOHN CORNYN
Attorney General of Texas

HOWARD G. BALDWIN, JR.
First Assistant Attorney General

NANCY FULLER
Deputy Attorney General - General Counsel

SUSAN DENMON GUSKY
Chair, Opinion Committee

Rick Gilpin
Assistant Attorney General, Opinion Committee

[1] A county has been held not to constitute a "local governmental district" within the meaning of article XVI, section 40 of the Texas Constitution. County of Maverick v. Ruiz, 897 S.W.2d 843, 847 (Tex. App.-San Antonio 1995, no writ); Tex. Att'y Gen. Op. No. JC-0074 (1999) at 2.

[2] Letter from Honorable Florence Shapiro, Chair, Senate Committee on State Affairs, to Honorable John Cornyn, Texas Attorney General (June 18, 2002) (on file with Opinion Committee).