                                             KEN PAXTON
                                        ATTORNEY GENERAL OF TEXAS




                                              August 13, 2018



The Honorable Roberto Serna                              Opinion No. KP-0211
District Attorney
293rd Judicial District                                  Re: Whether city council members also
458 Madison Street                                       employed by an independent school district
Eagle Pass, Texas 78852                                  may receive compensation for their service on
                                                         the city council (RQ-0213-KP)

Dear Mr. Serna:

        You ask whether three employees of the Eagle Pass Independent School District
("District") are eligible under the Texas Constitution to receive compensation for service on the
city council. 1 Article XVI, subsection 40(b)(1) of the Texas Constitution provides:

                (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:

                    (1) 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 ....

TEX. CONST. art. XVI,§ 40(b)(l) (emphases added). This constitutional provision permits a state-
compensated employee of a public school district to also serve as a member of the city council.
Id.; 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)." (quotation marks omitted)). The



         1
         See Letter and Attachments from Honorable Roberto Serna, Dist. Att'y, 293rd Judicial Dist., to Honorable
Ken Paxton, Tex. Att'y Gen. at 1-2 (Feb. 7, 2018), https://www.texasattomeygeneral.gov/opinion/requests-for-
opinion-rqs ("Request Letter" and "Attachments") (Attachments on file with the Op. Comm.).
The Honorable Roberto Serna - Page 2                  (KP-0211)



provision, however, prohibits a current school district employee from receiving a salary for serving
on the city council unless the individual is a "schoolteacher." TEX. CONST. art. XVI,§ 40(b)(l). 2

        We have found no Texas court decisions considering which school district employees
qualify as a "schoolteacher" for purposes of this exception. In a previous opinion, this office
concluded that "[w]hether a particular individual who receives compensation from the State ... is
a schoolteacher for purposes of article XVI, section 40 ... depends upon whether the individual is
employed to instruct students in a school setting ... 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. You inquire about three public school employees who currently serve the District in the roles
of (1) counselor; (2) assistant principal; and (3) special education coordinator. Request Letter at 2.
Whether a particular employee qualifies as a "schoolteacher" is generally a "question of fact that
cannot be determined in the opinion process." Tex. Att'y Gen. Op. No. GA-0530 (2007) at 5.
However, we note that the job descriptions you provided for the positions of assistant principal
and special education coordinator do not include any teaching responsibilities. See Attachments
at 1-6. Thus, assuming that accurately reflects their employment, the constitution would prohibit
these individuals from receiving compensation for their service on the city council. 3 See Tex.
Att'y Gen. Op. No. GA-0530 (2007) at 5; see also Tex. Att'y Gen. Op. No. GA-0874 (2011) at 2
(concluding that school district's chief of police was not a schoolteacher because he had no
teaching responsibilities).

        The job description you provided for the counselor states that a responsibility of this
position is to "[t]each campus developmental guidance curriculum" and "[c]ollaborate with
teachers who teach the guidance-related curriculum." Attachments at 7. Section 33.005 of the
Education Code requires a school counselor to plan and implement a developmental guidance and
counseling program, which includes "a guidance curriculum to help students develop their full
educational potential." TEX. EDUC. CODE§ 33.005(1); 4 see also id. § 28.002(a)(2)(E) (requiring
school districts to offer an enrichment curriculum that includes career education). To implement
the developmental guidance curriculum, section 33.006 provides that the school counselor may
either "deliver classroom guidance activities or serve as a consultant to teachers conducting lessons
based on the school's guidance curriculum." Id. § 33.006(b)(6); see also TEX. EDUC. AGENCY, A
MODEL COMPREHENSIVE, DEVELOPMENTAL GUIDANCE AND COUNSELING PROGRAM FOR TEXAS
PUBLIC SCHOOLS 19 (2004) (stating that school counselors "may teach all or some of the
[guidance] curriculum through direct instruction" or "consult with teachers who integrate the

          2
            Y ou ask about current employees. Request Letter at 2. Article XVI, subsection 40(b )( j) also permits a
 "retired schoolteacher" or "retired school administrator" to receive compensation for city council service. TEX.
 CONST. art. XVI,§ 40(b)(I).
          3
           Y ou tell us the council members "currently receive compensation of $10.00 per month, as per the City
 Charter." Request Letter at 2. We assume the funds constitute salary and not merely the reimbursement of actual
 expenses. See Tex. Att'y Gen. Op. No. GA-0530 (2007) at 6 (providing that a "reimbursement of expenses does not
 constitute salary" for purposes of article XVI, section 40(b)(I) (quotation marks omitted)).
         4  According to the Texas Education Agency, the purpose of the developmental guidance curriculum "is to
 help all students develop basic life skills." TEX. EDUC. AGENCY, A MODEL COMPREHENSIVE, DEVELOPMENTAL
 GUIDANCE AND COUNSELING PROGRAM FOR TEXAS PUBLIC SCHOOLS 18 (2004), available al
 https://tea.texas.gov/counseling_guidebook.html. The curriculum includes instruction in areas such as developing
 self-confidence, communication skills, and responsible behavior. Id
The Honorable Roberto Serna - Page 3         (KP-0211)



curriculum with other curricula"). Thus, based on the information you provided, the counselor
could qualify as a "schoolteacher" for purposes of article XVI, subsection 40(b)( 1), depending on
whether the employee directly instructs students in required curriculum.
The Honorable Roberto Serna - Page 4       (KP-0211)



                                     SUMMARY

                      Article XVI, subsection 40(b)(1) of the Texas Constitution
              prohibits current school district employees, other than
              schoolteachers, from receiving a salary for service on the city
              council.

                      Whether a particular employee qualifies as a schoolteacher
              is generally a question of fact outside the scope of an attorney
              general opinion. Based on the limited facts provided, a court would
              likely conclude that the assistant principal and special education
              coordinator are not schoolteachers. A court could conclude that the
              counselor is a schoolteacher depending on whether the employee
              directly instructs students in required curriculum.

                                           Very truly yours,




                                           KEN PAXTON
                                           Attorney General of Texas



JEFFREY C. MATEER
First Assistant Attorney General

BRANTLEY STARR
Deputy First Assistant Attorney General

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

ASHLEY FRANKLIN
Assistant Attorney General, Opinion Committee
