Could Texas school trustees, college regents, teachers, and education employees serve on the transitional State Board of Education?
Apply this to your situation
This page answers the general question as of 1984. Ezel answers yours: what it means for your facts, under current Texas law, with citations.
Texas AG Opinion JM-203: Education Board Incompatibility
Plain-English summary
JM-203 concluded that common-law incompatibility barred school trustees, junior college trustees, and certain public college or university regents from serving on the transitional State Board of Education created by House Bill No. 72.
"The common law doctrine of incompatibility bars school trustees, junior college trustees, and certain college and university regents from serving on the transitional State Board of Education established under House Bill No. 72."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0203.pdf
The opinion also barred educational-agency employees who were directly subordinate or accountable to that board. It limited the conclusion to the offices, jobs, and Education Code provisions actually discussed.
"Certain employees of educational agencies who are directly subordinate to or accountable to the board are barred by the common law doctrine from serving on it. This opinion is limited to the offices, employments and Education Code provisions discussed in it."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0203.pdf
JM-203 did not treat every education job as incompatible. It found no categorical common-law bar for certified public-school personnel, junior-college faculty or administrators, or regional education service-center employees on the relationships it examined.
"We are not compelled to conclude that common law bars certificated personnel from serving on the State Board."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0203.pdf"The board's administrative and rulemaking powers do not create incompatibility between board members and junior college teachers and administrators."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0203.pdf"Common law incompatibility does not prevent his service."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0203.pdf
The opinion identified a narrower employee conflict for the chief administrator of a teacher-education program because the State Board could impose probation and ultimately revoke program accreditation.
"We believe the common law doctrine of incompatibility may reasonably be extended to bar the chief administrator of a teacher education program from serving on the board."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0203.pdf
Currency note
This opinion was issued in 1984. 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.
Common questions
Why did House Bill No. 72 not eliminate every dual-position restriction?
The opinion read the bill as removing the statutory restriction for the transitional board, while leaving constitutional and common-law restrictions in place.
"Although House Bill No. 72 makes section 11.22(b) of the Education Code inapplicable to members of the transitional board, we do not think it affects the operability of the common law doctrine."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0203.pdf
Could a school-district trustee also serve on the transitional State Board?
No. JM-203 found that the State Board's supervisory powers over school districts conflicted with a local trustee's legal role.
"The offices are incompatible under common law."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0203.pdf
Could a junior-college trustee serve on the State Board?
No. The opinion treated the trustee as subordinate to State Board authority over specified adult and vocational education programs.
"The office of junior college trustee is therefore incompatible with the office of State Board member, and one person may not hold both offices."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0203.pdf
Were ordinary junior-college faculty and administrators barred?
Not on the duties discussed. The opinion said they answered to junior-college trustees rather than directly to the State Board and lacked conflicting statutory duties.
"The junior college personnel do not have statutory duties which conflict with the duties of board members. They are accountable to the junior college trustees, not to the board."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0203.pdf
Were regional education service-center employees barred?
No categorical bar was found. Their local boards hired and supervised them, and the State Board's operating rules did not make them immediately subordinate or accountable to it.
"The employees of the centers are hired by and accountable to the local board of directors. The State Board's rules for operating the center necessarily affect employees, but they do not make employees immediately subordinate or accountable to the board."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0203.pdf
Did the opinion decide the status of Central Education Agency officers and employees?
No. The AG said none had been nominated and declined to address the category at that time.
"However, we have been informed that no officer or employee of this agency has been nominated to the governor. Therefore, we do not believe it is necessary to address this question at this time."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0203.pdf
Background and statutory framework
House Bill No. 72 replaced the elected State Board with a fifteen-member transitional board that would serve until a newly elected board took office on January 1, 1989.
"Among the changes, the previously existing, elected State Board of Education is to be abolished and replaced by a transitional board of fifteen members."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0203.pdf
The opinion described incompatibility as applying when two offices had conflicting duties or when one position was subordinate to the other.
"The common law doctrine of incompatibility, briefly described, prevents one person from holding two offices if the duties are inconsistent or in conflict, or if one office is subordinate to the other."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0203.pdf
JM-203 cautioned that some incompatibility questions depended on detailed facts and might require court fact-finding. Its answers were therefore category-specific rather than universal.
"Such questions must be resolved on a case by case basis with reference to the general principles stated here."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0203.pdf
Citations and references
- House Bill No. 72 created the transitional board and changed the statutory eligibility language considered by JM-203.
"House Bill No. 72 enacted by the second called session of the Sixty-eighth Legislature institutes a number of reforms applicable to the public education system in Texas."
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0203.pdf
- Education Code section 11.22(b) supplied the statutory restriction that the bill made inapplicable to transitional-board appointees.
"House Bill No. 72 provides in its fourth section, which establishes the interim board, that 'Section 11.22(b), Education Code, as amended by this Act, does not apply to a person appointed under this section.'"
Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0203.pdf
Source
- Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-0203
- Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0203.pdf
Original opinion text
Best-effort transcription from a scanned PDF. Minor errors may remain. The linked PDF is authoritative.
The Attome)! General of Texas
Sept.r,mber 13, 1984
JIM MATTOX
Attorney General
Supreme Court Building Honorable Gibson D. (Gib) Lewis Opinion No. JM-203
P. 0. BOX 12545 Speaker
A”s!in. TX. 78711.2543 Texas House of Reprwentatives Re: Whether certain public
51214752501 P. 0. Box 2910 officers and employees may
Telex 91om74.1367
Austin, Texas 787t& be appointed to the interim
Telecopier 51214750266
State Board of Education
714 Jackson. Suile 700 Dear Speaker Lewis:
Dallas, TX. 75202.4506
2141742.0944
Your letter requesting an opinion from this office reads in part:
4824 Alberta Ave.. Suile 180 As you know, the Legislative Education Board is
El Paso. TX. 79905-2793 . . . rev:lw[ing] the qualifications of indivi-
915/533-3404 duals who:w names may be submitted to the governor
for appoinxment to the transitional State Board of
01 Texas. Suite 7CQ
Education created by House Bill No. 72 from the
Houston. TX. 77002.3111 recent sp~ri:lal session.
71Y223-5886
Prior zo House Bill No. 72, officers and
employees >f the state or a political subdivision
000 Broadway. Suite 312
Lubbock. TX. 79401.3479
of the s’:;lte were not eligible to serve on the
9061747-5235 State Board of Education. Educ. Code 111.22(b).
The legislature eliminated the disqualification on
the basi;s of employment with the state or a
4309 N. Tenth, Suits S
political subdivision (article I, Part B, section
McAllsn. TX. 79501-1885
512lSS2.4547
2, House Ml1 No. 72). and specifically provided’
that the disqualification on the basis of holding
an offica: with the state or a political sub-
2W Main Plaza. Suits 4W division cf the state does not apply to persons
San Antonio, TX. 782052797
appointed to the transitional board (article 1.
512n254191
Part 8. section 4(b), House Bill No. 72).
An Equal OppOflUnilYl Aowever, we understand that a common law
Affirmative Action Employer doctrine relating to incompatible offices may
prevent :wme persons from holding their current
position .md membership on the State Board of
Education at the same time, even though those
persons are not statutorily ineligible.
Specifically, we are concerned about the following
categories:
(1) p~‘11ic school professional employees who
are cert:.j’ied under state law and State Board of
Bonorable Gibson D. (Gib) Lwle - Page 2 (Jk-203)
Education rules (this would include teachers,
counselors, administrators, and other professional
positions);
(2) school district trustees;
(3) junior college faculty and administrators;
(4) junior college trustees;
(5) senior co:.l.ege or university faculty and
administrators, psrticularly those involved in
teacher education programs;
(6) senior college or university regents;
(7) regional education service center
employees; and
(8) Central Mucation Agency officers and
employees.
As speaker of :he house and chairman of the
Legislative Educ;azloa Board, I request your
official opinion j,r regard to the ability of those
persons listed above to hold both the listed
position and membership on the State Board of
Education.
Aouse Bill No. 72 enacted by the second called session of the
Sixty-eighth Legislature iwtitutes a number of reforms applicable to
the public education system j.n Texas. Acts 1984, 68th Leg., 2nd C.S.,
ch. 28. at 269. Among the changes: the previously existing, elected
State Board of Education Ls to be abolished and replaced by a
transitional board of fif :t?en members to be appointed after the
provision takes effect, 1~. when approval of the United States
Department of Justice is obtained. The transitional board members are
to serve until a new. electotl board takes office on January 1, 1989.
Eouse Bill No. 72, aoxrg other things, amends section 11.22 of
the Education Code specifyin the qualifications for membership on the
State Board of Education. Prior to such action, subsection (b)
thereof read as follows:
(b) No person :$hall be eligible for election to
or serve on the board if he holds an off ice with
the State of Texas or any political subdivision
thereof, or holds employment with or receives any
compensation for ;;ervices from the state or any
political subdivision thereof (except retirement
benefits paid by %e State of Texas or the federal
Ronorable Gibson D. (Gib) Lew:;s - Page 3 (~~-203)
.
government), or engages in organized public
educational activi::r. (Emphasis added).
House Bill No. 72 changed it ‘:o read instead:
No person shall be eligible for election to or
acme on the board if he holds an office with the
State of Texas c#r any political subdivision
thereof.
Acts 1984, supra. at 279.
The change makes .the :rf:atute applicable to officers only; the
statutory restriction on the: eligibility of employees and independent
contractors to the board has been dropped. But even with respect to
officers, House Bill No. 72 provides in its fourth section. which
establishes the interim board, that “Section 11.22(b), Education Code.
as amended by this Act, dotr:s not apply to a person appointed under
this section.” Acts 1984. WE. 54(b), at 282.
It is clear to us that the exemption of interim board members
from the strictures of secticn 11.22(b) of the Education Code was not
intended to exempt them from all dual office prohibitions.
Restrictions that prevent a ‘person f= holding more than one public
position or office at the! same time may originate in either
constitutional. statutory, or common law. ,See 47 Tex. Jur. 2d. Public
Officers 5527 et seq. (1963). Article III’section 18. of the Texas
Constitution, for instance, makes a legislator Ineligible to “any
office or place, the appointrrent to which msy be made, In whole or in
part. by either branch of I:he Legislature. . . .V The legislature
could not exempt interim board members from the article III, section
18 constitutional prohibition. and we ascribe to it no intent to do
so. Similarly, we do not believe the legislature intended to exempt
them from the common law bar of incompatibility.’
The common law doctrina! of incompatibility, briefly described,
prevents one person from holding two offices ~if the duties are
inconsistent or in conflict, or if one office is subordinate to the
other. Thomas v. Abernathy County Line Independent School District,
290 S.W. 152 (Tex. Comm’n .c~p. 1927, judgmt adopted); Kugle v. Glen
Rose Independent School Disl:,ict No. 1. 50 S.W.2d 375 (Tex. Civ. App.
- Waco 19:$2~) rev’d~oaocfi5r~gr~~~~ sub nom. Pruitt v. Glen Rose
Independent School District-No . 1. 84 S.W.2d 1004 (Tex. 1935). The
doctrine has been held to bat a public employee from holding a public
office which appoints. supervises, and controls the employee. See
Rhlinger v. Clark, 8 S.W.2d 666 (Tex. 1928); Attorney General Letter
Advisory No. 114 (1975). It protects the integrity of state
Institutions by promoting iaqartial service by public officials.
In Attorney General Ler.:er Advisory No. 56 (1973) this office by
implication interpreted section 11.22(b) of the Education Code as a
a
Honorable Gibson D. (Gib) Le%ds - Psg'e 4 (JM-203)
.
bar to dual office holding tmt is separate from (and In addition to)
the c-on law bar of incompc~tlbility, stating:
It is our opinion, therefore, that because of the
express provisions af $11.22(b) of the Education
Code, and/or the .comon law doctrine of
Incompatibility. on,: person may not serve at the
same time as a member of the Board of Mental
Health and Mental 3?tardation and the State Board
of Education.
The passage of House Bill No. 72 exhibits no intent that the statute
now be construed otherwise.
We think the Letter Advisory No. 56 construction of section
11.22(b) is correct and th8.t the legislature so regarded it. The
statute is intended to complement and extend article XVI, section 40
of the Texas Constitution, w'l:Lch prohibits dual office holding -- but
only with respect to offices of emolument. The former language of
section 11.22(b) urohibited
. t'le simultaneous holdinn of membershiu .on
the State Board of Education by snother office holder whether or not
either office was one of emol.tment.
It is difficult to argue!., as some do, that the very existence of
the statute indicates an intent that any common law rule regarding
dual office holding be supers+ded. The existence of the article XVI,
section 40 constitutional bar to dual office holding has not been
thought to replace or invalidate the co-on law proscription against
incompatibility, and neither should the existence of the section
11.22(b) statutory bar, in cur opinion. It Is an additional impedl-
mat to the simultaneous holilng of two offices. Although House Bill
No. 72 makes section 11.22(11:1 of the Education Code inapplicable to
members of the transitional board, we do not think it affects the
operability of the common 1~ doctrine. Consequently, we turn to the
specific offices and positionr; about which you inquire.
T]~ISTEES, REGENTS
To determine whether the various offices and employments you name
are incompatible with servj.ce on the board, we must examine this
doctrine at greater length. We should state at the outset, however,
that a court, with its power I:O receive and evaluate evidence, is in a
better position to decide matters of incompatibility than is the
Attorney General In issuing a legal opinion. Although we are not
always provided sufficient j,nformation to resolve such questions, we
can at least provide guideliuc!s to be used in resolving them.
. Texas courts have d:l:rcussed the common law doctrine of
incompatibility only in relal::.on to officers. Opinions of this office
and judicial decisions in o,:Iler states have. however, applied it to
employees. The court in -- Thcmlas v. Abernathy County Line Independent
Aonorablc Gibson D. (Mb) Lewis - Page 5 UM-203)
School District, 290 S.W. at 1,53. made the following observation:
[T]he offices of rlc.hool trustee and alder& are
incompatible; for cnder our system there are in
the city council or board of aldermen various
directory or sup e rvlsory powers exertable in
respect to school property located within the city
or town and in respect to the duties of school
trustee performable within its limits -- s,
there might well ar:.se a conflict of discretion or
duty in respect to health, quarantine, sanitary,
and fire prevention regulations. See articles
1015, 1067, 1071, R.S. 1925. If the-me person
could be a school trustee and a member of the city
council or board oP aldermen at the same time.
school policies, in many important respects, would
be subject to direc:t:ion of the council or aldermen
Instead of to that elf the trustees.
Another Texas court determinccl that two offices were not incompatible:
It is quite obv:.cus from the allegations in the
information, when :onsidered, as they must be,
with relevant ac.d controlling statutory and
charter provisions, that the offices of school
trustee and city t,a:c assessor have no relation to
each other. The duties of the two offices are
wholly unrelated, are in no manner inconsistent,
[and) are never in conflict. Neither officer is
accountable to the ather. nor under his dominion.
Neither is subordinate to the other, nor has any
power or right to interfere with the other in the
performance of any duty. The offices are there-
fore not inconsistent or incompatible. . . .
State v. Martin, 51 S.W.Zd 815. 817 (Tex. Civ. App. - San Antonio
1932. no writ). There are ::wo aspects of incompatibility. First,
that an office represents interests in conflict with those represented
by the other, and. second, tt,at the law makes one office subordinate
to and accountable to another.
These authorities provide a sufficient basis to auswer your
questions about officers. School district trustees are public
officers. Thomas V. Aberrathy County Line Independent School
District, supra. The State Izlard of Education has numerous powers and
duties which conflict with the legal role of school trustees. The
trustees “shall have the el:c:lusive power to manage and govern the
public free schools of the district.” Kduc. Code 523.26(b). The
State Board of Education, however, has numerous regulatory and
supervisory powers over sctcol districts. For example. the State
Honorable Gibson D. (Gib) Lewis - Page 6 (JM-203)
Board of Education, with two other state agencies, adopts end enforces
regulations governing design, equipment, constructlon, and operation
of school buses owned and operated by a tichool district. Educ. Code
$11.12. Adult education
shall be provided by public school districts . . .
in accordance Mth state statute and the
regulations and I,l:andards adopted by the State
Board of Education,. .
Educ. Code 511.18(c) (as amerded by H.B. No. 72; see Acts 1984, supra,
at 290). The State Boax,d adopts standards aad a process for
accrediting public schools ard may have to revoke the accreditation of
a non-complying school distx’lct. Educ. Code 5511.26(c)(5) (as amended
by H.B. No. 72, see Acts 19E4, supra , at 292); 21.753-21.757 (added by
H.B. No. 72; seeAct. 1984, supra. at 403-05). Goals for the public
school system are to be estc,tlished by the State Board. Sec. 11.26(b)
(as amended by R.B. No. 72; E Acts 1984, supra. at 292). School
districts must report to the board the fiscal and management
information required by stzlt,uts. See Educ. Code 023.48. There are
other statutes vhich subortilnste boards of school trustees to State
Board control and place the two offices in conflict. See, e.g., Educ.
Code 5521.721(d) (alternatj.x,es to social promotion) (as amended by
H.B. No. 72; see Acts 1984, lupra, at 393); 21.111(a). (b) (Vocational
Education) (as amended by H.1). No. 72; E Acts 1984, supra. at 296);
23.29(b) (Board establishes criteria for sale of minerals by school
district). The offices are j.ncompatible under common law.
Junior college trusteecl are also officers. Educ. Code IS130.002,
130.082. 130.084; Attorney Zenera Letter Advisory No. 149 (1977).
The State Board of Educat:Lon adopts standards and regulations for
approving adult education programs in junior colleges. Educ . Code.
511.18(c), supra. It is involved in the state-level administration of
technical-vocational education programs in junior colleges. Edtic.
Code 011.24(a); sea also Educ. Code 15135.03-135.04; Attorney General
Opinions H-929 (1977); H-580, H-541 (1975). Junior college trustees
vhen implementing these prozrama are subordinate ~to the State Board’s
authority. The office of junior college trustee is therefore
incompatible with the office! of State Board member, and one person may
not hold both offices.
Regents of state colleges and universities are officers subject
to the doctrine of incompatibility. The State Board has authority
over standards for approv,Lng university adult education programs.
Educ . Code 011.18(c), 25~. It also establishes standards for
approving teacher education programs at colleges and universities.
Educ . Code 513.032(a). 5 32 also Educ. Code 113.032(e) (Board
prescribes competency exam i%r admission to approved teacher education
program). If the coannissio~~r of education determines that a teacher
education program does no,: meet the board’s standards, he may
Honorable Gibson D. (Gib) Lar:Ls - Page 7 (JM-203)
institute sanctions, includltrg recomending that the board put the
program on probation. Educ. Code 113.033 (added by R.B. No. 72; see
Acts 1984, supra. at 378). If the program does not correct ies
deficiencies by the end of the 24-month probation, the State Board Is
to revoke its accreditation. Id. The governing bodies of colleges
and universities authorized toeetablish adult education or teacher
education programs are thus allbject to the State Board’s direction and
control in connection with the programs. The regents of public
colleges and universities with this authority hold an office
incompatible at common law wt:h the office of State Board member. See
& Educ. Code 121.921 (added by B.B. No. 72; see Acts 1984. e
at 402) @IL, which is part >f the University ofGas at Austin, must
submit rules and procedures E,,r board approval).
MPLOYEES
Before turning. to the public employments you inquire about, we
will consider the rationale :ior extending the comeon law doctrine of
incompatible offices to empL,,yments. Attorney General Opinion V-303
(1947) discusses the doctrine as follows:
At common law :;ldopted as the law of Texas in
Article 1, R.C.S., when not inconsistent with our
statutes or Const::i:ution), ‘there is no limit to
the number of offices which may be held simultane-
ously by the same person. provided that neither of
them is incompa c~tble with any other. . . .’
Throop , Public Officers, p. 33. ‘The
inconsistency . . . does not consist in the
physical impossibility to discharge the duties of
both offices, but lies rather in a conflict of
interest, as vhe,r+! one is subordinate to the
other . . . or tas the power to remove the
incumbent of the ‘a-:her. or to audit the accounts
of the other.’ [citing 46 C.J. at 9411.
Meecham on Public Offices and Officers, p. 269.
announces the rule to be that: ‘the mere physical
impossibility of one person’s performing the
duties of the two offices as from the lack of time
or the inability x be in tvo places at the same
moment, is not the incompatibility here referred
to. It must be an inconsistency in the functions
of the two offices, as judge and clerk of the same
court, claimant and auditor, and the like.’
The two Texas judicial decisions address incompatible offices, as do
the authorities cited in -:he quotation above. Attorney General
Opinion V-303 (1$47), after I;tating the rule on incompatible offices,
proceeds to consider whether s State Highway Department employee may
Honorable Gibson D. (Gib) Lewis - Page 8 (Jki-203)
work as en independent contz,actor for a school district. It found the
two jobs not incompatible, but it overlooked the threshold question of
whether the common law doctr,ine was even relevant to public e@Oyment
or work as an independent rc’rtractor for a political subdivision.
Other opinions have clc:sumed that the common law doctrine of
incompatible offices applies to employments without citing authority
for thus expending the doctrine. See, e.g., Attorney General Opinions
MW-415 (1981) (full-time and part-time public employments); H-665
(1975) (paid firemen and volunteer firemen); V-1346 (1951) (justice of
the peace and county laborer); V-345 (1947) (employee of one state
agency and independent contractor for another); Attorney General
Letter Advisory Nos. 137 (1977) (probation officer and college
instructor) ; 62 (1973) (school trustee and employee of Texas
Rehabilitation Commissio”); 30 (1973) (college professor and
researcher for Constitutiona:. Revision Commission). See also Attorney
General,Opinlons V-24 (1947) and O-2929 (1942) (employment with state
agency “incompatible” with private employment).
These opinions expand tne common law doctrine ,of Incompatibility
to employments without exp:.anation or citation of authority. The
conclusions are not for that reason necessarily incorrect. Some of
the opinions which use ttu doctrine imprecisely find no conflict
between the two positions, vhile other opinions rely on additional
rules developed to prevent ~:onflicts of Interest.
In contrast, Letter Advisory No. 114 (1975) relies on case law
from other states to concl,c,de that the office of school trustee is
incompatible with employment as a teacher in the same district. See
Haskins v. State, 516 P.2d 1171 (Wyo. 1973); 70 ALR 3d 1171 (1976).
Other courts faced with this issue have concluded that an insuperable
conflict of interest preverts an employee school teacher from serving
on the employer school bo;ird. Annot. 70 ALR3d 1188 (1976). sea
Knuckles v. Board of Education, 114 S.W.Zd 511 (KY. 1938); Clifford7
School Committee of Lynn,-35 N.E. 634 (Mass. 1931); Visotcky v.
Garfield, 273 A.2d 597 (NJ Super. Ct. App. Div. 1971); Tarpo v. Bowman
public School District # 1., ,232 N.W.Zd 67 (N.D. 1975). Attorney
General Letter Advisory NC. 114 relied on Haskins v. State for its
determination that the po:.;.cies underlying the common law doctrine
justified its expansion to prohibit an employee from serving as the
employing officer. The ---
Haskins court reviewed the law of other states
and concluded that
[tlhese [sister state] decisions . . . uniformly
declare that it is inimical to the public interest
for one in pubL:lc employment to be both the
employer and the employee. or the supervisor and
the supervised. Subordination is the key word.
After considerable research and careful
consideration of the reason and basis for the rule
against incompat:ll~ility. a majority of the Court
Honorable Gibson D. (Gib) Lewis - Page 9 (Jll-203)
are convinced th.a~: we should not ourselves be
bound by technic.al definitions of the word
office . . . . (Inphasis added).
516 P.2d at 1178.
Texas courts have reachrid similar results based in part on other
comeon law rules. The Texas Supreme Court has recognized that all
officers who have appointivc! power are disqualified -from appointing
themselves. Ehlinger v. Clark, 8 S.W.Zd 666 (Tex. 1928). In Starr
,2aT79 (Tex. Civ. App. - Sen Antonio 1956,
r court found that the commissioners court could not
employ e member of the court as road commissioner for the entire
county; such employment was contrary to article 2340. V.T.C.S., and to
the “policy of the law.” ‘[t was in effect an effort by a public
officer to contract with himself. See Cornutt v. Clay County, 75
S.W.Zd 299 (Tex. Civ. App.. - Eastland 1934, no writ): Knippa v.
Stewart Iron Works, 66 S.W. Z22 (Tex. Civ. App. - 1902. no writ). The
Texas courts have not relie’i on the c-on law doctrine of incompati-
bility to prevent employees from holding offices with inconsistent
duties, but they have reached such results relying on other conflict
of interest concepts. The rf’asoning. and result of Letter Advisory No.
114 is certainly consistent blth Texas case law.
Your question thus requires us to consider whether the courts
would extend incompatibiU.ty to prohibit various employees from
serving on the transitional board. You inquire about the following
classes of employees:
(1) public school professional employees who
are certified under state law and State Board of
Education rules (this would include teachers,
counselors, admin:.r;trators, and other professional
positions);
. . . .
(3) junior co:.:.ege faculty and administrators;
. . . .
(5) senior college or university faculty and
administrators, Iulrticularly those involved in
teacher education programs;
. . . .
(7) regional education service center
employees; and
(8) Central Education Agency . . . employees.
n
Honorable Gibson D. (Gib) Lewte - Page 10 (JM-203)
You vish us to determl:le vhether the duties of each class of
employees sre incompatible with those of State Board of Education
members. A question of incompatibility is primarily a legal question,
but its resolution may require information not given in the relevant
statutes. For example, if tvo offices serve jurisdictions which
overlap geographically, thej.1, duties are much more likely to conflict
than if they serve geograpllically separate areas. See Thomas v.
Abernathy County Line Independent School District, =a; compare
Attorney General Opinion JM-133 (1984) with Attorney General Letter
Advisory No. 149 (1977). Information thrparticular conflicts have
actually developed between an office and an employment makes it easier
to point out conflicting legal duties. See Haskins v. State, supra.
This office cannot definitively resolve each incompatibility question,
but ve can offer general guidance in this ares.
The legal differences t’etveen an officer and an employee suggest
why the incompatibility docl:rine hrs traditionally applied only to
officers and has been only cautiously extended to the case of an
employee and, the employing officer. A public officer, as distin-
guished from B public employee, has the authority to exercise a
sovereign function of the novernment largely indeuendent of the
control of others. Aldine :.idependent School-District v. Standley
280 S.W.2d 578 (Tex. 1955);jlunbsr v. Brszorla County, 224 S.W.2d 73;’
(Tex. Civ. App. - Galveston 1949, writ ref’d). An employee does not
have sovereign functions tcm be exercised independently.. His duties
are assigned by others; his .rork is subject to their supervision and
control. He is unlikely I:O exercise powers or have duties which
conflict vith sn officer’s powers and duties.
When so. officer sccer ts a second incomostible office. he is
deemed to have resigned th;! first. Thomas Y.’ Abernathy County Line
Independent School District, supra. This remedy highlights the
difference between a public-bfficer and a public employee. A public
officer can relinquish the drities of his office only-b; relinquishing
the office. See McGuire v. Hughes, 452 S.U.2d 29 (Tex. Civ. App. -
Dallas 1970, no writ). An employee, in contrast, may carry out
functions, which appear to conflict with an officer’s duties, but the
employee may be able to chsxge functions through reassignment vithout
relinquishing his employment.
An employee is most likely to have a conflict vith the officer or
officers to vhom he is directly accountable. Compare Attorney General
Opinion MW-450 (1982) with llttorney General Letter Advisory No. 114
(1975). Officer-emplo= incompatibility is the second kind of
incompatibility, where “[slrdlordination is the key word.” Haskins v.
State, supra. The office+s legal duties to the public do not
conflict vith the employee’s duties. Instead, the employee’s personal
interest in his employment wnflicts with the officer’s duty to serve
the public. Cf. art. 6252-9b. 58(c) (no state officer should accept
employment which could impair his independence of judgment in the
performance of his official duties).
Ronorsble Gibson D. (Gib) Lcrls - Page 11 (JM-203)
We turn to the smployeorl you inquire about to examine the legal
relstionships between them end the State Board of Educstion.
Certified public school emp:loyees. such se teachers. counselora, snd
sdministrstors, are subject to the direction and control of the local
board of trustees. Educ. Code 123.26; see slso Educ. Code
1913.101-13.117 (employment elf teachers by school board). The State
‘Board of Education exercises sdministrstive. policy-making and
rulsmaking povers which sffcct public schools and their employees.
See, e.g., Educ. Code $511.18(c) (adult education programs); 11.26
(policy-making and budget%:7 powers affecting public schools);
11.26(c)(S), 11.36(s), 21.71~1-21.757 (sdded by H.B. No. 72; see Acts
1984, supra, at 403-05) (school accreditation); 16.056 (boardapproval
of policies for 1mplement:tng Texas Public Education Compensation
Plan). However, school exployees are, 8s s general matter, only
indirectly affected by the State Bosrd's exercise of most such povers;
school employees remain directly subordinate to the locs,l board. Any
conflicts between the State Board and a local board sre relevant to
incompstibility between Sts:e Board members and school trustees, not
school employees.
The provisions on certification, hovever, may csuse conflicts
between the State Board and some certificated personnel. The State
Board administers the issuar,ce of certificates. Educ. Code 513.032(s).
Among its other responsibilf~ties , the board is to prescribe competency
exsm* for applicants for certificstion. Educ . Code 513.032(e).
Teachers and sdministrstoc s who did not take a certificstion
examination are required to perform sstisfactorily on "an examination
prescribed by the borlr,d 6.8 condition to continued
certificstion. . . ." Educ. Code $13.:47(s) (added by E.B. No. 72;
see Acts 1984. supra, st 36f;). The State Board may exempt persons vho
perform sstisfsctorily on en exam of equal difficulty given by the
employing district. Educ. Co)de §13.047(g) (added by H.B. No. i2; -see
Acts 1984, supra, at 369).
These provisions raise the possibility that s certified teacher
serving 8s a State Board member might have to prepare an exsminstion
which he is required to t.%:ce. We do not believe these provisions
create an incompstibility between the two positions. The State Board
might decide to use sn e:romination prepared by a testing service
rstber than preparing questions itself. See Attorney General Opinion
h-78 (1967). Some certificated persons arenot required to take the
exsmination. The conflict is not inherent in the employment status,
but instead is a conflict that some individusl public school employees
may have. If this conflic,: actually arises, the certificated member
msy need to choose between %msining on the board and taking the exam.
The conflict is not, however. insuperable. We are not compelled to
conclude that common law bars certificated personnel from serving on
the State Board.
You next inquire about junior college faculty and administrators.
As already discussed, the litate Board has some authority to regulate
q
Honorable Gibson D. (Cib) Lerr:‘.a - Page 12 (m-203)
the adult lducstion and vocational education programs offered by
junior college districts. In our opinion, the board’s administrative
and rulemaking povera do not create incompstib~ility between board
members and junior college teachers end administrators. The junior
college personnel do not hsvl! statutory duties vhich conflict with the
.duties of board members. ~hc!y ,sre accountable to the junior college
trustees, not to the board. Even though junior college personnel are
indirectly affected by boari, powers, we do not believe they have the
kind of insuperable conflict which constitutes incompstibility.
You next inquire about :senior college or university faculty and
sdministrstora, perticulsrl:r those Involved in teacher education
programs. We will deal on1.y vith the Education Code provisions on
teacher education. See ,ger.erslly Educ. Code, ch. 61 (Coordinating
Board, Texas College and Un1.versity System). The board establishes
standards for approving tec,cher education programs st colleges and
universities. Educ. Code 013.032(a). If the Commissioner of
Education determines that a teacher education program fails to meet
the Board’s standards. he first notifies the chief sdministrstor and
*w regents’ accreditation committee in confidence. Educ. Code
613.033(s) (added by H.B. No. 72; E Acts 1984, supra, st 378-79).
If the deficiency is not ccrrected, the commissiooer is to give the
regents public notice and finally recommend that the State Board place
the program on probation. Id.
---
Section 13.033(s) of the Education Code gives the chief
administrator of teacher education programs an opportunity to correct
deficiencies in the program. If deficiencies sre not corrected, the
board may impose the ssnctio~a of probation and ultimately revoke its
accreditation. The chief administrator and the board have conflicting
interests and responsibilities. The employer must correct
defici~encies in his program ilnd no doubt has a strong interest in its
continued operation without public sanctions. The board member must
enforce compliance with its :Itandards, even by revoking the program’s
sccredltstion if necessary. We believe the common law doctrine of
incompstibi3 icy may reasonably be extended to bar the chief
sdministrstor of a teacher education program from serving on the
board.
EDUCATION
ZERVICE CENTERBMPLOYEES
You next inquire a::cut regional education service center
employees. Under section 11.32 of the Education Code, the board
provides by rule and regulat,ion for the estsblishment and operation of
centers to provide educatlousl servi~ces to school districts and to
coordinate educational planuing in the area. Each center is governed
by a locally appointed board of directors, vhich has statutory
authority to employ necessary personnel. Educ. Code 011.32(d). The
employees of the centers arc hired by and accountable to the local
board of directors. The State Board’s rules for operating the center
necessarily affect employees. but they do not make employees
.
n .
Ronorsble Gibson D. (Gib) Le~tie - Psgc 13 (JM-203)
immedistely subordinate or accountable to the board. Nor do they
raise a question of conflicting legal interests, although certainly sn
smployee'a ideas about education may be Influenced by the nature of
his employment. Cormson law incompstibility does not prevent his
service.
EDUCATION
AGENCYOFFICERSAND RMPLOYEES
You have Inquired sbcut officers and employees of the Central
Education Agency. However, we have been informed thst no officer or
employee of this sgency has been nominated to the governor.
Therefore, we do not belie%,*, it is necessary to address this question
at this time.
This opinion is limitc!e, to the specific offices, employments and
Educstion Code provisions discussed. As slresdy noted. some incom-
patibility questions can only be resolved after examining detailed
information about an individusl's legal powers and duties. House Bill
No. 72 enacts substantial :!lsnges in the Education Code, and has not
yet been interpreted in z.dministrative constructions or judicial
decisions. Future interpretations of this law may raise questions
about incompstibility not considered here or suggest reasons for
exceptions to some of our answers to your questions. Such questions
must be resolved on s case by case basis with reference to the general
principles stated here.
SUMMARY
The common lsv doctrine of incompstibility bars
school trustees, junior college trustees, and
certain college and university regents from
serving on the trsnsitionsl State Board of
Education estsblkhed under House Bill No. 72.
Acts 1984, 68th Leg., 2nd C.S., ch. 28, at 269.
Certain employees of educational agencies who are
directly subordinate to or accountable to the
board sre barred by the common lsv doctrine from
serving on it. ?'his opinion is limited to the
offices, employments and Education Code provisions
discussed in it.
uly yo ,
+------
d&g GREEN
First Assistant Attorney General
DAVID R. RICBARDS
Executive Assistant Attorney General
1,. 906
:
N
Honorable Gibson D. (Cib) Lwie - Page 14 (JM-203)
Prepared by Susan L. Garrison
Assistsnt Attorney Genersl
APPROVED:
OPINIONCOMMITTEE
Rick Gilpin, Chairman
Colin Carl
Susan Garrison
Jim Hoellinger
p. 907
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