                                ATTORNEY GENERAL OF TEXAS
                                             GREG        ABBOTT



                                              February 6,2006



The Honorable Dan W. Heard                              Opinion No. GA-0394
Calhoun County Criminal District Attorney
Post Office Box 100 1                                   Re: Whether a substitute teacher may receive
Port Lavaca, Texas 77979                                compensation for serving as a member of a city
                                                        council (RQ-0373-GA)


Dear Mr. Heard:

         You ask whether a substitute teacher may receive compensation             for serving as a member of
a city council. ’

         Article XVI, section 40(a) of the Texas Constitution provides that “[n]o person shall hold or
exercise at the same time, more than one civil office of emolument.” Subsection(b) thereofdeclares,
in relevant part:

                 (b) State employees or other individuals who receive all or part of
                 their compensation either directly or indirectly from funds ofthe 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 compensationfor serving as a member of
                 a governing body of a school district, city, town, or local
                 governmental district, including a water district created under Section
                 59, Article XVI, or Section 52, Article III . . . .

TEX. CONST. art. XVI, 5 40(b) (emphasis added).   Clearly, a member of a city council is a member
of the governing body of a city. Under the exception of subsection (b)(l), a “schoolteacher” may
serve as a member of a city council and receive a salary for doing so. Your question focuses on
whether the term “schoolteacher” includes a substitute teacher.


         ‘Letter from Honorable Dan W. Heard, Calhoun County Criminal District Attorney, to Honorable Greg Abbott,
Attorney General of Texas (Aug. 5, 2005) (on file with the Opinion Committee, also available at
http:llwww.oag.state.tx.us).
The Honorable Dan W. Heard - Page 2                    (GA-0394)




        The term “substitute teacher” is not defined in any Texas statute or regulation.         It is
referenced only once: For purposes of subchapter B of chapter 22 of the Education Code,
“professional employee of a school district” includes, inter alia, a “teacher, including a substitute
teacher.” See TEX. EDUC. CODE ANN. 5 22.051(a)(l) (V ernon Supp. 2005). Likewise, we have
found no Texas case that construes the scope of the term “substitute teacher.“2

         We may assume that, there being no controlling legal definition of “schoolteacher,” the voters
were at least familiar with the popular meaning of the term. One dictionary defines “schoolteacher”
as “a person who teaches in a school.” See NEW OXFORDAMERICAN DICTIONARY 1526 (2001).
Another defines the term as a “person who teaches in a school below the college level.” See
AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE 1560 (4th ed. 2000). These
definitions are sufficient to include a substitute teacher in a public school.

       The compensation provision regarding a “schoolteacher” was added by the voters to article
XVI, section 40 in 2001. See Tex. H.R.J. Res. 85, 77th Leg., R.S., 2001 Tex. Gen. Laws 6723,
6723-24. The bill analysis provided by the House of Representatives states as follows:

                 The Texas Constitution prohibits state employees or other individuals
                 who are compensated directly or indirectly from state funds from
                 receiving a salary for serving as a member of a governing body of a
                 school district, city, town, or other local governmental district,
                 including a water district.    This may be a disincentive to some
                 individuals who are quali$ed to serve as a board member. As
                 proposed, House Joint Resolution 85 requires the submission to the
                 voters of a constitutional amendment allowing current and retired
                 school teachers and retired public school administrators to receive
                 compensation for serving on the governing bodies of school districts,
                 cities, towns, or other local governmental districts, including water
                 districts.

HOUSECOMM. ON PUBLICEDUCATION,BILL ANALYSIS, Tex. H.R.J. Res. 85,77th Leg., R.S. (2001)
(Enrolled Version) (emphasis added). We may conclude from this statement that one purpose of the
amendment was to enlarge the group of persons available for service on local governmental bodies.

        A subsequent publication of the Texas Legislative Council, provided to the voters prior to
the general election, describes this and other arguments in favor of the amendment:

                  1. The proposed amendment would increase the pool of qualified
                  candidates for local governing body positions. Active and retired


         ‘The courts of a few other states have held that, for specific purposes, a substitute teacher is not a “teacher.”
See Winkelv. Teachers Ret. Sys. of City ofNew York, 149 N.Y.S.2d 443,441 (N.Y. Sup. 1956) (substitute teacher is not
a “teacher” within meaning of statute limiting membership in teachers’ retirement system); Gordon v. St. Bd. of Educ.,
40 A.2d 670,672 (N.J. App. 1945) (substitute teacher is not a “teacher” for purposes oftenure statute). Neither of these
cases appear to be relevant to your inquiry.
The Honorable Dan W. Heard - Page 3                     (GA-0394)




                  teachers and retired school administrators would be more willing to
                  contribute their time and talents to local governing bodies if they were
                  compensated for their state and local service. An increase in the
                  number of qualified candidates would improve the quality of the local
                  governing bodies.

                  2. Service on manygoverning bodies of local governmental districts
                  is part-time. Active public school teachers would be as able to serve
                  as would any other person who holds a full-time job.

                  3. Many people who have been elected to serve on governing bodies
                  of local governmental districts have been unaware of the prohibitions
                  against dual officeholding and have had to repay the salary they
                  received for service on the governing body.

                  4. Public school teachers and administrators may already receive
                  salaries for serving as members of the commissioners court of a
                  county and should be permitted to receive salaries for serving on
                  other local governing bodies.

See TEXAS LEGISLATIVE COUNCIL,ANALYSES OF PROPOSED CONSTITUTIONAL AMENDMENTS,
NOVEMBER 6,200l ELECTION, at 65 (Sept. 2001) (emphasis added). The voters who adopted the
referenced amendment to article XVI, section 40 were presumably influenced by the above-
referenced factors. None of the arguments advanced argue for the exclusion of substitute teachers
from the amendment. Furthermore, the second argument referenced above, that an active teacher
would be as able to serve as would any other person who holds a full-time job, weighs particularly
in favor of including substitute teachers within the category of “schoolteachers.” Substitute teachers
do not in all cases hold full-time jobs. They would be more likely than contract teachers to have the
additional time necessary for attending to service on a local governing board.

         Both the popular definitions of the term “schoolteacher” and the information prepared by the
Legislative Council indicate that the voters who adopted the amendment favored a broad and
encompassing definition of the term, one that is broad enough to include a substitute teacher within
its ambit. For these reasons, we conclude that the term “schoolteacher” as used in subsection (b)( 1)
of article XVI, section 40 of the Texas Constitution includes a substitute teacher. As a result, a
substitute teacher may receive compensation for serving as a member of a city council.3




          3We note that you raise, although you do not ask about, the common-law doctrine of incompatibility. That
doctrine has three aspects: self-appointment, self-employment, and conflicting loyalties. See Tex. Att’y Gen. Op. No.
GA-0348 (2005) at 1. The first two are not applicable because neither a substitute teacher nor a member of a city council
appoints or employs the other. As for the third aspect-conflicting loyalties-it does not apply unless both positions
constitute “offices.” See Thomas v. Abernathy County Line Indep. Sch. Dist., 290 S.W. 152, 153 (Tex. Comm’n App.
1927, judgm’t adopted); Tex. Att’y Gen. Op. Nos. JC-0054 (1999) at 2, JM-1266 (1990) at 4. Although a member of
a city council, an elected official, holds an office, a substitute teacher does not. See Ruiz v. State, 540 S.W.2d 809, 8 11
(Tex. Civ. App.-Corpus Christi 1976, no writ) (public school teacher is an “employee” rather than an “officer”).
The Honorable Dan W. Heard - Page 4         (GA-0394)




                                      SUMMARY

                     A substitute teacher may receive compensation   for serving as
               a member of a city council.




BARRY R. MCBEE
First Assistant Attorney General

ELLEN L. WITT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Rick Gilpin
Assistant Attorney General, Opinion Committee
