                            ATTORNEY GENERAL                 OF TEXAS
                                        GREG       ABBOTT




                                            May 12,2006



The Honorable Mike Krusee                           Opinion No. GA-0428
Chair, Committee on Transportation
Texas House of Representatives                      Re: Whether an individual employed as ~apart-
Post Office Box 2910                                time instructor at a community college may be
Austin, Texas 78768-2910                            compensated      for simultaneous service as a
                                                    member of the board of directors of a municipal
                                                    utility district (RQ-0409-GA)

Dear Representative   Krusee:

         You ask whether an individual employed as a part-time instructor at a community college
may be compensated for simultaneous service as a member of the board of directors of a municipal
utility district.’

         A letter accompanying your request indicates that the person in question         is a part-time
instructor at Austin Community College.’ On January 182005, he was appointed            as a member of
the governing board of The Meadows at Chandler Creek Municipal Utility District         (the “district”).
He has served since that time without compensation. See MUD Letter, supra note          2, at 1,

          Municipal utility districts are created under article XVI, section 59 of the Texas Constitution
and under chapter 54 ofthe Water Code. See TEX.WATERCODEANN.5 54.011 (Vernon 2002) (“[a]
municipal utility district may be created under and subject to the authority, conditions, and
restrictions of Article XVI, Section 59, of the Texas Constitution”); id. 5s 54.014-,037 (Vernon
2002 & Supp. 2005) (creation or conversion of a municipal utility district). Chapter 54 is part of title
4 ofthe Water Code, entitled “General Law Districts.” Chapter 49, which applies to all General Law
Districts, provides that a director of a district “is entitled to receive fees of office of not more
than $150 a day for each day the director actually spends performing the duties of a director.” Id.
 § 49.060(a) (Vernon Supp. 2005).



        ‘LetterfromHonorableMikeKmsee,Chair,HouseCommitteeon Transportation,  to HonorableGregAbbott,
AttorneyGeneralofTexas(Oct.31,2005)(on tile withtheOpinionCommittee,also mailable at www.oag.state.tx.us)
[hereinafterRequestLetter].

         ‘Letterfrom Nancy Beleckis,President,The Meadowsat ChandlerCreek MunicipalUtility District,to
HonorableMikeKmsee(Oct.26,2005)(submittedas partofRequestLetter,on file withthe OpinionCommittee,also
mailable at wwwoag.state..tx.us) [herein&r MUDLetter].
The Honorable Mike Krusee - Page 2               (GA-0428)




        Article XVI, section 40(a) of the Texas Constitution prohibits an individual from holding “at
the same time, more than one civil office of emolument.” TEX. CONST. art. XVI, § 40(a). A proviso
to subsection (a) applies to state employees as well as ofjcers. Subsection (b) of article XVI, section
40 declares that

                        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 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:




                              (2) a faculty member or retired faculty member of a
                public institution of higher education may receive compensation for
                serving as a member of a governing body of a water district created
                under Section 59 of this article or under Section 52, Article III, of this
                constitution.

Id. art. XVI, 5 40(b)(2). The question before us is whether a part-time instructor at Austin
Community College is a “faculty member.        of a public institution of higher education.” Id. If so,
then he or she may receive the fees of office to which an individual is entitled by section 49.060(a)
of the Water Code for performing the duties of a director. See TEX. WATER CODE ANN. 5 49.060(a)
(Vernon Supp. 2005).

         Austin Community College is part of the Austin Community College District, as described
by section 130.166 of the Education Code. See TEX. EDUC. CODE,ANN. 5 130.166 (vemon Supp.
2005). The Texas Higher Education Coordinating Board (the “coordinating board”) is required to
“exercise general control of the public junior colleges of Texas.” Id. 5 130.001(a) (Vernon 2002).
Chapter 61 of the Education Code, which establishes and describes the duties of the coordinating
board, defines “institution of higher education” as “any public technical institute, public junior
college, public senior college or university, medical or dental unit, or other agency of higher
education as defined in this section.” Id; 5 61.003(S) (Vernon Supp. 2005). Thus it is undisputed
that Austin Community College is a “public institution of higher education” for purposes of article
XVI, section 40(b) of the Texas Constitution.       TEX. CONST. art. XVI, § 40(b). The remaining
question is whether a part-time instructor is a “faculty member” for purposes of article XVI, section
40(b). Id.

         You note that section 5 1.10 1 of the Education Code defines “faculty member” as “a person
who is employed by an institution of higher education on ajidl-time basis as a member of the faculty
or staff and whose duties include teaching, research, administration,         including professional
librarians, or the performance of professional services.” TEX. EDUC. CODE ANN 5 51.101(3)
The Honorable Mike Krusee - Page 3               (GA-0428)




(Vernon 1996) (emphasis added); MUD Letter, supra note 2, at 2. This definition is, however,
restricted to subchapter C of chapter 5 1, which governs “Faculty Development Leaves of Absence.”
TEx.EDUC. CODE ANN. ch. 51, subch. C (Vernon 1996 & Supp. 2005). Section 51.101, the
definitional portion of the subchapter, is prefaced by the phrase “in this subchapter.” Id. 5 5 1.101
(Vernon 1996). Thus this “full-time basis” limitation on the definition of “faculty member” applies
only to subchapter C of chapter 5 1. Id. ch. 5 1, subch. C (Vernon 1996 & Supp. 2005).

         We have found nothing in the history ofthe adoption of this provision in 2003 to indicate that
the legislature that proposed it, or the voters who ratified it, intended to exclude part-time instructors
from the meaning of “faculty member.” It is also apparent that apart-time instructor at a community
college is a “faculty member         of a public institution of higher education” for purposes of article
XVI, section 40(b) of the Texas Constitution. TEX.CONST.art. XVI, 5 40(b)(2).

         We conclude that an individual employed as a part-time instructor at a community college
may be compensated for simultaneous service as a member of the board of directors of a municipal
utility district.
The Honorable Mike Krusee     - Page 4      (GA-0428)




                                      SUMMARY

                     An individual employed as a part-time instructor at a
               community college may be compensated for simultaneous service as
               a member of the board of directors of a municipal utility district.




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
