The     Honorable             M.     L.     Brockette                                 Opinion           No.       H-       739
Commissioner                  of Education
Texas        Education          Agency                                                Re:        Whether             cpntrol       of the
201 East            Eleventh         Street                                           Texas            School        for    the    Blind      may
Austin,        Texas           78701                                                  be vested            in a board             composed
                                                                                      of five          members             of the State
                                                                                      Board            of Education,              and    related
                                                                                      questions.


Dear      Commissioner                    Brockette:


              You      have        requested           our     opinionregarding                  section          20 of House              Bill
1673,        Acts      l-975, 64th Leg.,                ch.     734,~.      2377      (hereafter               the     Act)      which      &xtensivety
amends         the     laws        relating       to educational                services         for     the    blind       and     visually
handicapped.


              Section       11.06    of the             Texas     Education     Code formerly                          granted          to the Central
Education            Agency     “exclusive                jurisdiction     atid control  over                        the Texas           School
for    the    Blind.     ”     By     the      terms         of section         11. 24,        the     State      Board          of Education
has:


                                            specific          responsibility             for    adopting
                                            policies,          enacting          regulations,             and
                                            establishing              general       rules        for     carry-
                                            ing    out the       duties         placed         on it or        the
                                            Central           Education         Agency          by the
                                              Legislature.


Pursuant            to such        authority,           the    State      Board       of Education                has      heretofore             acted
as the       governing             body     of the       Texas        School       for’the        Blind.




                                                                 p.     3141
The    Honorable            M.     L.    Brockette             - page        two         (H-739)




             Section        20 of the Act              adds     section            11.C61to               the    Education           Code     and es-
             tablishes
                                         as the principal                   governing                body
                                         for     the    Texas            School        for         the    Blind
                                         a five-member                     board        consisting                of
                                         five     individuals               designated                by the
                                         membership                  of the        State           Board        of
                                         Education            from          among            its     member-
                                         ship     to serve            in this          capacity             and
                                         to be known                as    the      Board            of the
                                         Texas         School         for        the   Blind.


You    ask       first    whether        the     Legislature                may        constitutionally                  confer       this     authority
upon      less     than     the full      membership                 of the        State           Board         of Education.               Article    7,
section          8 of the    Texas        Constitution               provides:


                                         The Legislature                    shall       provide    by
                                         law for a State                   Board        of Education,
                                         whose         members               shall       be appointed                  or
                                         elected          in such           manner            and         by such
                                         authority            and        shall     serve            for     such
                                         terms         as     the    Legislature                    shall       pre-
                                         scribe         not    to exceed               six     years.             The
                                                                                                                  -
                                         said      board        shall        perform                such        duties
                                         as may           be prescribed                  by law.                (Emphasis
                                         added).


In our       opinion,        the    Constitution              does        not preclude                    the    Legislature           from     vesting
control          of the    Texas        School      for       the Blind in a. board  composed                                 of five  members
of the     State         Board     of Education.                 The School  for the Blind is                               not created   by the
Constitution,              and   we     believe        that     the       Legislature                    may     provide       for     its    governance
by any       reasonable            means.




                                                                p.       3142
‘l‘hr    Honorable             M.       L.     Brockctte                - page         three              (U-739)




                You    also        ask       whether            any      conflict         or       incompatibility                   would       arise          as to
the five        members                of the        State        Board          of Education                who        constitute            the      Board            of
the     Texas         School        for       the    Blind.             Article          16,       section         40 of the            Texas          Constitution
prohibits          an individual                from         holding             simultaneously                   more           than     one       “Civil         Office
of emolument.                 ”    A      similar          questi.on            arose         in    Texas          Turnpike             Authority             v.
Shepperd,             279 S. W. 2d                  302     (Tex.       Sup. 1955))                where          the     Supreme             Court       upheld                  a
provision          of the         Turnpike              Projects              Act      which        appointed              three        members               of the
State      Highway            Commission                   as     ex-officio             directors               of the        Texas          Turnpike
Authority.              The       Court,            in holding             that       there        was      no violation                of article            16,           sec-
tion     40,    declared            that       “[t]he        Legislature                 may        impose              upon      statutory            officials                 ex-
tra     duties,       ” and        noted        that       the    State          Tax     Board,            composed               of the        Comptroller,
the     Secretary           of State,            and       the Attorney                  General,            had        been       upheld        against                a
similar         constitutional                 attack.             279 S. W. 2dat                   388.The             Court        added       that        there            was
no possibility              of incompatibility                        or      conflict         because            the      duties        imposed             upon            the
Commissioners                     as directors                   of the        Toll      Road        Authority              conformed               to the          general
duties         imposed            upon       the Highway                 Commission.


               Similarly,               the five          members                of the        State       Board          of Education                 designated
by      the Abtas           the        Board         of the         Texas           School         for     the     Blind         have       no ‘duties
apart      from        those        previously               placed            upon      the       Central          Education             Agency             and            the
State      Board        of Education                  by the          Texas           Education             Code.        See also
                                                                                                                         --         Jordan                         v.
Crudgington,              231 S. W. 2d 641,                         646       (Te x. Sup.           1950);         Jones    v. Alexander,                          59 S.
W.      2d 1080,         1082          (Tex.        Sup. 1933);               Allen      v.     Davis,            333 S. W.             2d 441         (Tex.        Civ.
APP.       --Amarillo               1960,no            writ).           Accordingly,                   it is      our      opinion          that     no pro-
hibition        under       article            16,        section          40 of the           Texas         Constitution                or     incompatibility
under       the    common               law     doctrine              would         arise          from      a member                of the         State       Board
of Education             simultaneously                      serving             on the         Board          of the        Texas          School        for       the
Blind.


               Your      last       question              inquires            about       the       potential            liability        of members                        of
the     Board         of the       Texas         School           for      the      Blind       which          might        arise        by virtue              of their
performance               of their            duties         prescribed                by law.             We      assume            you       refer         to civil
rights      actions       based           on an act              performed               under           color      of state          law.       The         United
States         Supreme            Court        has        recently            dealt      at     length         with       this     question            as it relates
to members               of local            school         boards.               In Wood            v.    Strickland,               95s.      Ct.992(1975),                          the
Court       held      that,        on the        basis           of common               law        tradition           and      public        policy,             school
board       members               are        entitled        to a qualified                   good        faith     immunity              from         liability                 for




                                                                         p.     3143
The     Honorable             M.         L.     Brockette              - page         four          (H-739)



damages          under        42 U.S.            C.      5 1983.           They            may      waive           such    immunity               if they
“knew       or    should        have           known           that     the action               [they]         took    within          [‘fli&r]     sphere
of official        responsibility                     would       violate            the      constitutional               rights           of the    student
affected,         or   if     [they]          took     the action              with         the malicious                 intention           to cause        ‘a
deprivation            of constitutional                       rights      or       other         injury          to the        student.”          95 S.      Ct.
at 1001          The    test        is    one        of good          faith,        and a


                                                compensatory                   award             will     be appropriate
                                                only      if    the     school             [officials]           acted      with          such
                                                an impermissible                           motivation             or with            such
                                                disregard              of the         student’s            clearly          established
                                                constitutional                 rights            that     [their]        action         cannot
                                                reasonably               be     characterized                     as being           in good
                                                faith.          95 S.         Ct.     at     1001.


Although         we     are        of course             unable          to speculate                   on particular                instances         in which
a civil       rights        action            might      be brought                 against         the      Board,             we    believe        that,     on
the basis         of the Supreme                       Court’s          clearly             formulated                 standard           in Wood,           the mem-
bers      of the       Board         of the           Texas       School             for     the        Blind     may       confidently              perform        their
duties      without          fear        of liability             so long            as they            do so in good                faith.


                                                                  SUMMARY


                                                      The      Legislature                  may         constitutionally
                                                vest      control          of the           Texas         School          for     the
                                                Blind          in a board             composed                  of five     mem-
                                                bers        of the State               Board            of Education.
                                                No     incompatibility                      or     conflict         under
                                                article          16,     section             40 of the            Texas         Con-
                                                stitution          would            arise         from      a member                 of
                                                the State             Board          of Education                 simultaneously
                                                serving           on the            Board         of the         Texas      School




                                                                          p.        3144
.   .




        The    Honorable    M.      L.   Brockette             - page     five         (H-739)




                                         for     the    Blind.      Members                 of the          Board
                                         of the        Texas      School         for      the    Blind       have
                                         a qualified           immunity           from          liability      for
                                         damages,              so long     as     they      perform
                                         their     duties        in good         faith.


                                                                  AVery          truly      yours,




                                                                    Attorney              General           of Texas




    S,/                                  ~~

                                    4
                                          First        Assistant




        C.     ROBERT      HEATH,         Chairman
        Opinion    Committee


        jad:




                                                            p.    3145
