                    October 21: 1970


Dr. J. W. Edgar                      Opinion No. M- 712
Commissioner of Education
Texas Education Agency               Re:   Whether Sectfon 2.08 of the
201 East 11th Street                       Texas Education Code is ap-
Austin, Texas 78711                        plicable to a school trustee
                                           who Is employed with a text-
                                           book publishing company sell-
Dear Dr. Edgar:                            ing textbooks in Texas.
          We quote a portion of your letter requesting our opinion,
as follows:
         "At the school trustee election     held In the
    Eanes Independent School District on     April 4, 1970,
    Mr. Martin D. Tenney was elected one     of the trustees
    of the district. Shortly thereafter      he took the oath
    of office and continues now to serve     as trustee."

          In your statement of facts you recite that Mr. Tenney is
the Southwest Regional Editor for Prentice-Hall, Inc., which is a
publishing company, and that Prentice-Hall, Inc. has contracts to
furnish textbooks to the State of Texas,
          In your letter you ask the following question:
          "Does the provision of Section 2.08 T.E.C.* and
     the employment of a school trustee (Mr. Tenney) by a
     textbook publishing company selling textbooks In Texas
     render him ineligible to hold the office or to serve
     as a trustee of a school district (Eanes I.S.D.)?
     (Emphasis supplied)."
                  ,
          Additional uncontroverted facts have been furnished in
the form of an uncontroverted affidavit by Mr. Tenney which reads,
in part, as follows:
          "I am a salaried employee of Prentice Hall,
     Inc., of Englewood Cliffs, New Jersey, a large

*Section 2.08, Texas Education Code.
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.    .




    Dr. J. W. Edgar, page '2    (M-712)


         publishing house deriving Its principal income
         from its loose-leaf services to the legal pro-
         fession and to business.
              "I was a salaried employee of Prentice-Hall,
         Inc. when I ran for the office of Trustee of the
         Eanes Independent School District, and I made full
         disclosure of this employment during my election
         campaign. This fact was known to the voters, the
         then Board of Trustees, and the administration of
         the Eanes Independent School District when I was
         running for the office of Trustee, when I was elected
         by a majority of the electors of the district, when
         I was declared the winner of the office of Trustee
         for which I sought election, when I qualified for the
         office and when I took the oath of office as Trustee,
         and daily thereafter from April, 1970, until the
         present time. I have not attempted to nide the fact
         that I was then and am now solely a salaried employee
         of Prentice-Hall, Inc.
              "During the period of time hereinabove delineated
         and during the present time,,I have not then, nor do I
         now, own any shares of stock in Prentice-Hall, Inc., nor
         In any of its subsidiaries.
              'My job title with Prentice-Hall, Inc. is Regional
         Editor. As Regional Editor, I have no employees of said
         company directly or indirectly under my supervision. I
         am not an officer in said company, nor am I a General
         Manager, nor am I a Regional Manager. My employment
         Is solely with Prentice-Hall, Inc.
              "I do not sell books. My Job is tc contact
         College Professors with the view in mind to procure
         manuscripts that may subsequently be published 'by
         Prentice-Hall, Inc. :IIdo not have the power or au-
         thority, expressed or implied or apparent, to bind
         the said corporation on any contract or to sign or
         execute a contract for and on behalf of sa.Fdcar-.
         poration. All contracts can only be signed by an
         officer of the company. I cannotagree with some
         third person that the corporation for which I work
         will publish his book or manuscript.

              "I have nc. contact in the performance of my
         employment with School Administrators in Texas, at
         the High School or Elementary School level.

                                -3440-
Dr. J. W. Edgar, page   3    (M-712)


          "I have no power nor authority for and on be-
     half of Prentice-Hall,Tc.,   to:
          "(a) institute legal proceedings for and on
     behalf of the company;
          "(b) to sell real or personal property of the
     company for and on behalf of the company;
          "(c) to execute contracts for and on behalf of
     the company;
          "(d) to ratffy contracts for and on behalf of
     the company;
          "(e) to supervise or manage any other employee
     of the company;
          "(f)   to supervise or manage any officer of the
     company;
          "(g) to buy real or personal property for and
     on behalf of the company;
          "(h) to receive the proceeds of any sale for
     and on behalf of the company;
          "(1)   to borrow money for and on behalf of the
     company;
          "(J) to mortgage or encumber real or personal
     property for and on behalf of the company;
          "(k) to hire or fire an officer or employee of
     the company;
          "(1) to assent to an account stated for and on
     behalf of the company.
          "My employer regularly wfthholds United States
     Income Tax and Social Security taxes from my salary."
          After we were furnished a copy of this affidavit, we re-
ceived a letter from the Attorney for the School Board which was
directed toward establishing that Mr. Tenney might be considered an
agent of Prentice-Hall, Inc. The only additional fact presented is
that Mr. Tenney is responsible for developing or editing manuscripts
into college texts; however3 we have been furnished no evidence of

                             -3441-
Dr. J. W. Edgar, page 4      (M-712)


Mr. Tenney acting as an agent or being authorized to act as an
agent for his company. He Is admittedly not an attorney. We
have been advised by him he has no written contract of employment
with his employer and no written or verbal authority to act as
agent or attorney from his employer. The mere fact standing alone
that ,he Is responsible for development of manuscripts Into college
texts and contacts various college professors with the object of
bringing about an ultimate procurement of manuscripts on the part
of Prentice-Hall, Inc. is insufficient to present a question of
fact that Mr. Tenney Is an "agent" of the company. As previously
shown, he has no authority to contract for or bind the company by
contract.
          In view of the foregoing facts presented to us, all of
which are uncontroverted, our opinion is that Mr. Tenney is an
employee of Prentice-Hall, Inc., and is not an agent of that com-
oanv. Conflicting inferences cannot be drawn from the evidence
presented to us a%which   has not been controverted, Winters v.
Morgan & Williams, 256 S.W. 342 (Tex.C&v.App. 1923, no writ)
holding that where evidence showing lack of agency is not co;-
tradlcted, the jury cannot reject it and find-to the contrary;
that the law never presumes agency.
          Our opinion is that the clear language of the Texas
Education Code applies only to agents and attorneys, as therein
stated, and this section may not be construed to apply to Mr.
Tenney as a mere employee of a textbook publishing company.
          In our construction of the statutes, we begin with the
proposition that any statutory provision "which restricts the
right to hold vublic office should be strictls construed against
ln~llgibillty." Willis v. Potts, 377 S.W.2d 622, 623 (Tex,SuP.
1964).
          In 1927, the Legislature enacted Article 2840, Vernon's
Civil Statutes, provldlng that members of the State Textbook Com-
mittee must file an affidavit before entering upon their duties. . :
"that he Is not and has not been directly or Indirectly interested
in or connected with or em loyed b any publishing houfe, person,
firm or corporation subm*           ooks for adoption.   (Emphasis
ours.)
          In 1935, however, the Legislature provided only that
School Board of Trustees, teachers, ard other school trustees
shall not accept,,the"agency or attorneyship of any textbook pub-
lishing company.   Article 2910, V.C.S.
          In 1969, the Legislature enacted the Texas Education
Code, repealing Article 2840 and bringing forward the same stringent
language in Section,12.11, while also repealing Article 2910 and
bringing forward the less stringent language in Section 2.00 of the Code.
                            -3442-
Dr. J. W. Edgar, Page     5        (M-712)




          It would appear that the Legislature understands the
distinctions between an agent and an employee, and when they
desire to provide for more stringent prohibitions they have done
so with appropriate language. This is also evidenced in Section
23.75 of the Education Code, wherein the Legislature made provision
against the members of the Board of Truftees voting on the award of
a depository contract if the member is ~ ~ ~ either a stockholder,
officer, director, or employee of the bank receiving said school
district depository contract.n (Emphasis ours.)
         Section   2.08       of the Texas Education Code reads as follows:
         "During the term of his employment, a trustee
    or teacher in any public school or institution of
    higher learning In Texas, county or city superintendent,
    university president, or college president shall not
    act as agent or attorney for any textbook publishing
    company selling textbooks in Texas. Acceptance of the
    agency or attorneyship shall by operation of law forfeit
    his position with the public schools.
          Since Mr. Tenneg's job title of Regional Editor is not
fully descriptive of all his duties, we must examine and cons3.der
all the facts presented to us to determine his legal status in his
employment as being an agent, attorney, employee, or other status.
          Article 2910, Vernon's Civil Statutes (now repealed), was
the immediate predecessor of Section 2.08, Texas Education Code, and
the two are substantially identical in the context of the questfon
under consideration. Section 2.08 is penal in nature; it involves
a forfeiture, which is not favored, Therefore, it should be strictly
construed, and any reasonable doubt will be resolved against Its en-
forcement. 25 Tex.Jur.2d 511, Forfeitures, Sec. 10, and cases cfted.
          We find no court decisions construing efther Article 2910
or Section 2.08. However, under Article 2910 a question dfd arise
which Involved the Austin Independent School District which was the
subject of Attorney General's Opinion No. O-5231 (1943). The ques-
tion was whether a stockholder, the general manager, and vlce-
president of the Steck Company, which held several contracts for
textbook publication, was eligible for the position of trustee
of the school district. The opinion concluded that a "general
manager" was synonymous with "general agent" and was therefore
disqualified to hold the position of trustee under Artrcle 2910,
Vernon's Civil Statutes.

                                   -3443-
Dr. J. W. Edgar, page 6     (M-712)


          We have concluded, however, that there is a material
legal distinction which must be drawn between the position of
a general manager and that of a mere employee, which Mr. Tenney
apparently holds.
          Article 10, Vernon's Civil Statutes, reads, in part,
as follows:
          "The following rules shall govern the con-
     struction of all civil statutory enactments:
         "1 . The ordinary signification shall be ap-
    plied to words, except words of art or words con-
    nected with a particular trade or subject matter,
    when they shall have the signification attached to
    them by experts in such art or trade, with reference
    to such subject matter.
         (1
          . . .
         “6 . In all Interpretations, the court shall
    look diligently for the intention of the Legislature,
    keeping in vlew,,atall times the old law, the evil
    and the remedy.
          It is pertinent to note that the choice of persons,
"agent or attorney", to which Article 2910 applied remained un-
changed in the Section 2.08 of the Education Code. The Legislature
is presumed to have used words in the sense in which they are or-
dinarily understood. Calvert v. Austin Laundry & Dry Cleaning, 365
S.W.2d 232 (Tex.Civ.Anp. 19o3    it ref.1  I  F t W orth Lloyds v.
Mills, 213 S.W.2d 565 (Tex.Ci;.zip 1948, writ rO:f I th       t
discussed whether the term "subcon&actor"n as use; $n tkec$sk-
men's compensation statute, also included independent contractor'f
and, at page 568, stated, in part, as follows:
         'Moreoverp the Legislature, in choosing the
    wording It so passed this amended Act under, was
    presumed to be aware of and to be applying those
    classifications and adjudicated meanings. (Emphasis
    ours.)
          The distinction between an agent and an employee is set
out In 2 Tex.Jur.2d 439, Agency, Section 4> as follows:
         "The chief distinction between an agent and
    a servant lies in the fact that an agent is em-
    ployed to represent his principal in business
                            -3444-
Dr. J. W. Edgar, page   7   (M-7121


     dealings and to establish contracted relations
     between him and third persons, while the servant
     is not, nor is he allowed the use of personal dis-
     cretion as to the means of accomplishing the ends
     for which he is employed. As the distinction is
     otherwise stated, a servant is a worker for another
     who ordinarily deals with things, having no power
     to bring about contracted relations with third per-
     sons. On the other hand, an agent IS one who deals
     not only with things, but also with persons, using
     his own discretion as to the means employed and fre-
     quently establishing contractual,,relationsbetween
     his principal and third persons.
          (citing Gulf Ref.Co. v. Shirley, 99 S.W.2d 613
     (Tex.Civ.App. 1936, err.dism.); Talley v. Sharton
     Oil co., 146 S.W.2d 803 (Tex.Civ.App. 1940 no writ);
     Humble 011 & Ref. Co. v. Bell, 172 S.W.2d 600 (Tex.
     Civ.App. 1943, no writ).
We therefore hold that the terms 'agent" and "attorney", as used
in Section 2.08 of the Texas Education Code, do not include a mere
employee, such as Mr. Tenney apparently is.
          The only court decisions we find, or cited to us, which
are directly or closely in point on the facts, are Pittston Cit
School District's Directors, 6 Penn.Dist. & Co. Rept. 345 (1924
  d Commonwealth, ex rel. v. Ilgenfritz, 26 Penn.Dist. & Co. Rept.
%3 (?93b). In the Pittston case the court held that a local public
school trustee who was the stated salary agent of a large supplier
of public school textbooks was not disqualified as such trustee
under a statute which read:
          "No person shall act as agent for school books
     or school supplies in any district in which he is
     engaged or employed as superintendent, teacher 05
     employee of the school district In any capacity.
The geographical area in which the trustee served as agent did not
include the school district; a different representative of the text-
book company served the area in which the school district was located
and contacted the school for Its textbooks furnished by the company.
The Court did state, however,
          "On account of his business relations with
     Heath & Co. and his connected self-interest, he
     should not have voted on any prop!sition to buy
     or pay for their textbooks, . . . (at P. 549).

                             -3445-
Dr. J. w. Edgar, page   a   (M-712)


In the Ilgenfritz case the question was whether a public school
trustee who was an employee of a utility company which furnished
electricity and light bulbs to his school had either a direct or
Indirect interest in the contracts for those items. The Court
held that he did not have, It held that no evidence was presented
to show that the school trustee had any authority whatever to make
any contract for his employer or to show that he benefited either
directly or Indirectly because the company of which he was an em-
ployee sold electric current and light bulbs to the school board.
The Court cited the earlier case of Commonwealth, ex rel. v,
Wineman, 21 Dist. R, 911 (likewise a Penn. case) which held that
a councilman who was merels an emolovee of a water comnanv which
furnished water to his borough was not holding his office-,Ln
violation of the same statute.
          The contention has been advanced that Mr. Tenney may be
the agent of the company for limited purposes and that his presence
as a member of the School Board could raise a question of conflict
of Interest when the Board considers and acts to select textbooks,
In view of the fact that hls employer does have textbooks on the
adopted list of textbooks for the public schools In Texas, We
have been presented no evidence that Mr. Tenney has been given
any power to establish contractual relations for hi.semployer with
third persons nor that Mr. Tenney represents his employer in any
other capacity in contacts with the school board of which Mr. Tenney
is a member.
          In 3 American Jurisprudence 428, Agency, Section 1T9 the
settled rules are well stated :
          "Agency is ordinarily a relation created by
     agreement of the parties, and, as between princ4~pal
     and agent, an agency is created and authority is
     actually conferred very much as a contract is made,
     to the extent that the creation results from the
     agreement between the pr:incipaland agent t&t suclsn
     a relation shall,exd,st. As between the parties to
     the relation, there mus.6he a mee,tingof the minds
     in establishing the agency, and the consent of bot.h
     the principal and :he agent is necessary to create
     the agency. . a a
          Whether an agency has been created is ordinarily a question
of fact to be determined by the relations of the parties as they
exist under their agreements or acts, with the questionsbeing ui-
timately one of Intention. 3 Am.Jur.2d 430, Agency, Sec. 21. Con-
sequently, we can only pass upon the factual evidence presented to us,

                            -3446-
.,   .




         Dr. J. W. Edgar, page 9        (M-712)


                   Whether a conflict of interest exists between Mr.
         Tenney's service as a member of the Board of Trustees and his
         employment by Prentice-Hall, Inc. depends primarily upon the duties
         and authorities vested In him by his employer. If Mr. Tenney may
         exercise "executive authority" on behalf of his employer, his
         service on the Board of Trustees might be unlawful in that this
         service might present a conflict of interest with his employment
         by Prentice-Hall, Inc. Attorney General's Opinion No. O-7514
         (1946).  However, to be disqualified for interest, he must stand
         to gain or lose something, the value of which may be estimated.
         To present a conflict of interest, the Interest must be a direct,
         real, and certain Interest in the subject matter to be passed upon,
         not merely an indirect, incfdental, remote, or contingent interest.
         Attorney General's Opinion M-625 (1970). From the facts before
         US> we conclude as a matter of law, that as a mere salaried employee
         or servant, Mr. Tenney Is eligible to serve on the School Board.
                   The general principles governing the eligibility of public
         officers ordinarily apply in the case of school officers, who are
         public officers. 47 Am.Jur. 317, Schools, Sec. 31.
                   Since statutes Imposing disqualifications are to be con-
         strued strictly, ambiguities, if any are to be resolved in favor
         of eligibility to office. 42 Am.Jur. 908, Public Officers, Sec.
         37.  This text further states:
                   ,I
                    . . . the right to hold office is a valuable
              one and its exercise should not be declared pro-
              hibited or curtailed except by plain provisions of
              the law. It Is the sovereign right of the people
              to select their own officers, If this rule permits
              too much latitude, then the question of eligibility
              cannot be corrected by the courts, but must be by
              the legislature In whom the power is reposed. . . .'
                              SUMMARY
                   The prohlbltlons of Section 2.08 of the Texas
              Education Code do not apply to a mere "employee"
              who Is employed with a textbook publishing company
              selling textbooks in Texas , and he is not ineligible
              to serve as an electee on a public school board.




                                        -3447-
. .   .




          Dr. J. W. Edgar, page 10       (M-712)


                                             truly yours,



                                                      eneral of Texas
                                                  V
          Prepared by Melvin E. Corley
          Assistant Attorney General
          APPROVED:
          OPINION COMMITTEE
          Kerns Taylor, Chairman
          W. E. Allen, Co-Chairman
          Gilbert Pena
          Tom Bullington
          Jim Swearingen
          S. J. Aronson
          MEADE F. GRIFFIN
          Staff Legal Assistant
          ALFRED WALKlXR
          Executive Assistant
          NOLA WHITE
          First Assistant




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