                           February   7, 1973


Honorable Bevington Reed                   Opinion No. H- 6
Commissioner,    Coordinating Board
Texas College and University System        Re:   Whether a teacher,
P. 0. Box 12788. Capitol.Station                 instructor or pro-
Austin,  Texas 78711                             fessor may serve and
                                                 draw salary as a member
                                                 of the Ector County
                                                 Commissioners    Court
                                                 at the same time he
                                                 teaches either full-
                                                 time or part-time
                                                 for Odessa College and
                                                 draws a salary for his
Dear Dr.   Reed:                                  service there.

     You have inquired as to whether a teacher, instructor or professor
may serve and draw salary as a member of the Ector County Commis-
sioners Court at the same time he teaches either full-time or part-
time for Odessa College.and draws a salary for his service  there.

     Odessa College is a junior college operated pursuant to the pro-
visions of the Texas Education Code, Sections 130.001. et seq. As
such it is an educational agency of the State and its teachers, instructors,
and professors are ‘Qadividuals who receive all or part of’their com-
epnsatioti either directly or indirectly from State funds”.
                                             .    .,.
     It is unnecessary to determine whether “teachers.   instructors,
and professors”   at Odessa College are persons who occupy civil
offides of emolument as used in the first sentence of Section 40 of
Article 16 of the Constitution of Texas, since county commissioners
are expressly   excepted’from the restrictions imposed by that sentence.

     The first sentence of Article 16.’ Section 40, however, does not
operate as an exemption of county commissioners      from the separation
of powers command of Article 2, Section 1 of the Constitution of Texas
which provides:
Dr.   Bevington Reed, page 2,     (H-6)




                        “The powers of the Government of the State
                of Texas shall be divided into three distinct
                departments, each of which shall be confided to a
                separate body of magistracy,   to wit: Those which
                are Legislative to one; those which are Executive
                to another, those which are Judicial to another;
                and no person, or collection of persons, being
                of one of these departments,  shall exercise
                any power properly attached to either of the
                others, except in the instances herein expressly
                permitted. ”

     It has been said that an executive officer of the state is one
whose duties are to cause the laws to be e~:x c uted and obeyed and
that offices of the executive department of the state are those whose
duties are to execute the laws coextensive with the state.     Texas
Liquor Control Board v. Continental Distilling Sales Co., 199 S. W.
2d 1009 (Tex. Civ. App., Dallas, 1947. error ref. n. r’. e.).   See
also Willis v. Owen, 43 Tex. 41 (1875).

      Article   5, Section 1 of the Constitution of Texas provides,   in part:

                        “The judicial power of this State shall be
                vested in one Supreme Court, . . . in Commissioners
                Courts. . . and in such other courts as may be pro-
                vided by law. . . . ”

To the extent that the Constitution may also confer upon members of
a commissioners    court certain executive functions (see. for instance,
Article 9, Section 3 of the Constitution of Texas). they fall within the
“except in the instances herein expressly permitted” provision of
Article 2. Section 1. They are not, however, excepted from the
provisions of that section while acting as agent of a separate executive
body.

      It could be argued that teachers do not, within the meaning of
 Article 2, Section 1, exercise any power attached to the executive
 department of the government; that, rather, they merely discharge




                                          -21-
Dr.   Bevington Reed. page 3,   W-6)




a function of the executive without exercising any discretion and that,
therefore, they would be no threat to the proper balance of government.
This argument is particularly forceful when no compensation is involved
in one position and the coercive effect of economic dependence would
not influence the discharge of duties.  Section 40 of Article 16 recognizes
the importance of this consideration by granting limited exemption
from the”strictures of the separation of powers clause to certain persons,
conditioned upon their renunciation of salary for the local governmental
position.

     But the distinction between the exercise of a governmental w
and the exercise of a function implementing that power is often more
apparent than r&l.     Saint v. Allen, 126 So. 548 (La., 1930); State v.
Burch, 86 N. E. 2d 294 (Ind. , 1948); Monaghan v. School Dist. No. 1,
Clackamas County, 315 P. 2d 797 (Ore. 1957).

     It is our opinion, therefore, that a teacher, instructor, or professor
employed by a public institution of learning “being of“ the executive
department within the meaning of Article 2, Section 1 of the Constitution
of Texas, may not’at the same time validly hold the office of county
commissioner     except by qualifying under the language added to Section
40 of Article 16 by the 1972 amendments:

                     “State employees or other individuals who
             receive all or part of their compensation either
             directly or indirectly from funds of the State of
             Texas and who are not State officers,   shall not
             be barred from serving as members of the govern-
             ing bodies of school districts, cities, towns, or
             other local governmental districts; provided how-
             ever, that such State employees or other individuals
             shall receive no salary from serving as members
             of such governing bodies. . . .I’ (Emphasis Added)

     It is our conclusion that a teacher, instructor or professor at
Odessa College may serve as a member of the Ector County Commis-
sioners Court but only if he renounces his salary as commissioner.




                                       -22-
Dr.   Bevington Reed, page 4,    (H-6)




                                -SUMMARY              -

                     A teacher, instructor or professor who teaches
             either full or part-time at a State supported junior
             college and draws a salary for his services there may.
             serve as a member of a commissioners      court but only
             if he renounces his salary for his services as commissioner.

                                                Very truly yours,




                                                                        .
                                                Attorney   General of Texas

APPROVED:




 Firkt Assistant




%!
 DAVID M. KENDALL,
 Opinion Committee
                         Chairman




                                         -23-
