    The Attorney              General         of Texas
                      July   2,    1979




Honorable WilhelminaDelco           Opinion No. MW-36
Chairman
House Committee on Higher Education Re: Whether a college professor
State Capitol                       may receive a royalty on a book
Austin, Texas                       used in the school in which he
                                    teaches.

Dear Representative Delco:

      Your predecessor requested our opinion as to whether the Education
Code prohibits a college instructor or professor from receiving royalties
from the saie of books used in the school at which he teaches. Section 4.14
of the Rducation Code provides:

           Any school trustee or teacher who shall ever rkeive
           any commission or rebate on any books used in the
           schools with which he is concerned as trustee or
           teacher shall ,be guilty of a misdemeanor and upon
           conviction shall be fined not less than $50 and not
           more than $100.

It is questionable whether an author’s “royalty,” defined as

           a share of the product or profit reserved by the owner
           for permitting another the use of his property,

Alamo National Bank of San Antonio v. Hurd, 485 S.W.Bd335, 338 (Tex. Civ.
App. - San Antonio 1972, writ ref’d n.r.e.), is included within the statutory
prohibition. We need not address that &ue here, however, since we have
determined that section 4.14 is not applicable to persons who teach at the
college 1eveL

      Section 4.14 was originally enacted in language virtually identical to
that of its present form in 1925, as part of the legislation creating and
defining the duties of the State Textbook Commission. Acts 1925, 39th Leg.,
ch. 176, at 417. The statute required the commission to

           meet . . . for the purpose of considering the
           advisability of continuing or discontinuing, at the




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Honorable WilhelminaDelco      -   Page Two (MW-301



           expiration of all current contracts, any or all of the State adopted
           textbooks in use in the public schools of Texas, . . .

Section 4 (emphasisadded). It authorized the commission

           to select and adopt a uniform system of textbooks to be used in the
           public free schools of Texas, . . .

Section 5 (emphasis added). Other portions of the statute required the commission to
“adopt a multiple list of books for use in the high schools of the State,” and authorized the
adoption of “supplementary readers ~for the first seven grades,” sections 5, 6. Section 23
made it a criminal offense for any “school trustee” to

           prevent or aid in preventing the use in any public school in this
           .State of the books or any of them as adopted, . . .

or for any “teacher in any public school” to “wilfully fail or refuse to use the said books.”
Section 24, from which section 4.14of the Education Code is derived, provided:

           No trustee or teacher shall ever receive any commission or rebate
           on any books used in the schools with which he is concerned as such
           trustees or teachers and if any such trustee or teacher shall receive
           or accept any such commission or rebate he shall be guilty of a
           misdemeanor and upon conviction he shall be fined not less than
           fifty dollars and not more than one hundreddollars.

Finally, section 51stated that the statute was

           intended to furnish a complete plan for the adoption, purchase,
           distribution and use of free textbooks to be supplied to the public
           free schools of the State. . . .

           added). Section 23 of the 1925 Act was codified as article 293a of the Penal
Code and section 24 was codified as article 293b. With the enactment of the Education
Code in 1969, these provisions were transferred thereto, as sections 4.13 and 4.14,
respectively.

      In our opinion, the 1925 legislation is clearly inapplicable to colleges or universities
or to persons who teach therein. On the one hand, the statute refers repeatedly to the
“public free schools,” the “high schools,” the “first seven grades,” and to “school trustees”;
on the other, it makes no reference whatever to any institution of higher education, either
singly or collectively.

     Neither do we believe that the enactment of the Education Code in 1969altered the
scope of the provision that became section 4.14. Acts 1969, 61st Leg., ch. 889, at 2735.
Although section 1.04(a)of the Education Codesstates that the code applies




                                             p.   92
   .-.. .




Honorable WilhelminaDelco      -   Page Three       @B+3O)       ,:



            to sll educational institutions supported either wholly or in part by
            state tax funds unless specifically excluded,

institutions of higher education, as we have indicated, were never included within the
scope of section 4.14. In addition, the 1969 enactment did not include the Higher
Education title, and indeed, section 4 of the statute states that

            except for certain miscellaneous provisions relating to higher
            education in ntles 1 and 2, and the chapter on public junior colleges
            in Title 3, the enactment of the Texas Education Code does not
            affect the statutes of the state relating to higher education.

We conclude that section 4.14 of the Education Code does not prohibit a college instructor
or professor from receiving royalties from the sale of books used in the school at which he
teaches. Of course, a professor’s adoption of any textbook for which he receives a royalty
should be made only after consideration of the state ethics law, article 6252-94 V.T.C.S.,
and the penal provisions relating to official misconduct, section 39.01, Penal Code.

                                      SUMMARY

            The Education Code does not prevent a college instructor or
            professor from receiving royalties from the sale of books used in
            the school at which he teaches.




                                               MARK WHITE
                                               Attorney General of Texas

JOHN W. FAINTER, JR.
First Assistant Attorney General

TED L. HARTLEY
Executive Assistant Attorney General

Prepared by Rick Gilpin
Assistant Attorney General

APPROVED:
OPINION COMMlTTEE

C. Robert Heath, Chairman
David B. Brooks
Rick Gilpin




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Honorable Wilklmina Delco   -   Page Four   (MW-30)



Richard Rafes
William G Reid
Bruce Youngblood




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