                                 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



                                                                 p.   894
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



                                            p. 895
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



                                            p. 896
                                                                                              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



                                           p. 897
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




                                            p. 898
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



                                          p. 899
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



                                      p. 900
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



                                             p. 901
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.


                                                     p. 902
                                                                                         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).



                                       p.   903
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



                                            p. 904
                                                                                          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


                                          p. 905
        .
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
