   OFFICE   OF THE    ATTORNEY   GENERAL   STATE   OF TEXU

   JOHN      CORNYN




                                                     July 6, 1999



The Honorable Irma Range1                                    Opinion No. JC-0074
Chair, Committee on Higher Education
Texas House of Representatives                               Re: Whether a public school employee may
P.O. Box 2910                                                simultaneously serve as a county commissioner
Austin, Texas 78768-2910                                     and draw a salary therefor (RQ-0011)

The Honorable Delma Rios
Kleberg County Attorney
P.O. Box 1411
Kingsville, Texas 78364

Dear Representative        Range1 and Ms. Rios:

        You have requested our opinion as to whether a public school teacher or administrator may
simultaneously serve as a county commissioner and draw a salary therefor. We conclude that she
may do so.

         Article XVI, section 40 ofthe Texas Constitution provides in relevant part: “No person shall
hold,or exercise at the same time, more than one civil office of emolument, except that of Justice of
the Peace [or] County Commissioner.         .” At first glance, it might appear that the above-quoted
provision answers your question. In the first place, county commissioners are exempted from its
prohibition. Furthermore, a public school teacher or administrator is not an “officer” for purposes
of the amendment.     Ruiz v. State, 540 S.W.2d 809, 811 (Tex. Civ. App.-Corpus Christi 1976, no
writ).

        Article XVI, section 40, however, by operation of the following proviso, is applicable to
certain persons who are not “officers”:

                          State employees or other individuals who receive all or part of
                     their compensation either directly or indirectly from funds of the
                     State ofTexas and who are not State officers, shall not be barred !%om
                     serving as members ofthe governing bodies of school districts, cities,
                     towns, or other local governmental districts; provided, however, that
                     such State employees or other individuals shall receive no salary for
                     serving as members of such governing bodies.
The Honorable   Irma Range1 - Page 2              (X-0074)
The Honorable   Delma Rios




A public school teacher or administrator receives part of her compensation from state funds and is
therefore subject to the proviso. Consequently, she may serve on a local governing board only if she
renounces any compensation attached to the service. Tex. Att’y Gen. Op. No. JM-118 (1983). In
County ofMaverickv. Ruiz, 897 S.W.2d 843 (Tex. App.-San Antonio, 1995, no writ), however, the
court held that a county did not constitute a “local governmental district” under the article XVI,
section 40 proviso. As a result, the court declared, a teacher who serves as a county commissioner
is not prohibited from receiving a salary for the latter position.

        Ms. Rios also asks about the continuing validity of Attorney General Opinion H-6 (1973).
In that opinion, this office addressed a situation identical to the one you pose: whether a public
school or junior college instructor could validly serve as a county commissioner and receive the
salary attached to the latter position. The opinion concluded, first, that, since a county commissioner
was a member of the judicial branch of government, and a teacher a member ofthe executive branch,
such service, in the absence of the newly-added “state employee” proviso, was barred by article II,
section 1 of the Texas Constitution-the      separation of powers provision. Because of the proviso,
however, the individual at issue was permitted to serve as commissioner, but could not receive a
salary for doing so. The opinion simply assumed without explicitly so finding that a county was a
“local governmental district.”

          The implicit conclusion of Attorney General Opinion H-6-that              a county is a “local
governmental district”-has       been rejected by County ofMaverick.       The explicit conclusion-that
article II, section 1 ordinarily plays a role in dual-office-holding matters-has   long been abandoned,
both by the courts and by this office. See Turner v. Trinity Indep. Sch. Dist., 700 S.W.2d 1 (Tex.
App.-Houston       [14th Dist.] 1983, no writ) (school trustee may also serve as justice of the peace);
Tex. Att’y Gen. Op. No. JM-5 19 (1986); Tex. Att’y Gen. LO-92-004, LO-88-019. Ms. Rios’s brief
suggests that County of Maverick does not control because Kleberg County is not within the
jurisdiction of the San Antonio Court of Appeals. While such an argument might be considered by
a district court, the attorney general, in the opinion process, cannot ignore reported judicial
interpretations of law from this state’s appellate courts.

        It is therefore our opinion that a public school teacher or administrator may simultaneously
serve as a county commissioner without renouncing the salary attached to the latter position.
Attorney General Opinion H-6 (1973) is overruled. We note, however, that article XVI, section 40
does not affirmatively authorize a county commissioner to hold a second salaried position; it merely
exempts a commissioner from the prohibition applicable to other officers.
The Honorable   Irma Range1 - Page 3          (JC-0074)
The Honorable   Delma Rios




                                      SUMMARY

                A public school teacher or administrator may simultaneously hold the
           office of county commissioner without renouncing the salary attached to the
           latter position. Attorney General Opinion H-6 (1973) is overruled.




                                             JOHN     CORNYN
                                             Attorney General of Texas



ANDY TAYLOR
First Assistant Attorney General

CLARK RENT ERVIN
Deputy Attorney General - General Counsel

ELIZABETH ROBINSON
Chair, Opinion Committee

Prepared by Rick Gilpin
Assistant Attorney General
