                                 The Attorney General of Texas
                                                      June 16.        1982

MARK WHITE
Attorney General

                               Honorable   Richard G. Morales,          Sr.          opinion   No.   MW-479
Supreme Courl Building
                               Webb County Attorney
P. 0. Box 12546
Austin. TX. 76711. 2546
                               1810 San Bernard0                                     Re:     Whether   a teacher     with
5121475.2501                   Laredo,   Texas    78040                              the Laredo Independent       School
Telex 9101674-1367                                                                   District    is disqualified     from
Telecopier   51214754286                                                             serving    on the     Coordinating
                                                                                     Board,     Texas    College       and
1607 Main St., Suite 1400
                                                                                     University    System or the State
Dallas. TX. 75201-4709                                                               Board of Education
2141742.6944
                               Dear Mr. Morales:
4624 Alberta Ave., Suite 160
El Paso. TX. 79905.2793
                                      You have asked whether         a teacher      from the Laredo      Independent
915/533-3464                   School District     is disqualified     from serving      on the Coordinating     Board
                               of the Texas College       and University       System by section     61.022    of the
                               Texas Education     Code, whether section        11.22 of the code disqualifies        a
1220 Dallas Ave., Suite 202
                               teacher    employed by Laredo Junior         College    from serving    on the State
Houston, TX. 77002.6966
713/650@66
                               Board of Education,        and,     in the event       the answers     to the above
                               questions    are yes, whether either       section    11.22 or 61.022 violates      the
                               civil   rights  of a teacher     or is a deprivation       of equal protection.
606 Broadway, Suite 312
Lubbock. TX. 79401.3479
                                      Section  61.022    of the Texas Education   Code is very specific   on
8061747.5238
                               the issue of educators       serving on the Coordinating   Board of the Texas
                               College    and University    System.  It states, in relevant   part:
4309 N. Tenth, Suite S
McAllen, TX. 76501-1685                    No member may be               employed    professionally        for
6121662.4547
                                           remuneration    in the        field  of   education    during    his
                                           term of office.
200 Main Plaza. Suite 400
San Antonio. TX. 76205.2797    The statute      is plain    and unambiguous;      the literal     meaning must be
5121225.4191                   given     to the words.        Attorney    General   Opinion   MW-198 (1980).        A
                               teacher      works    in   the    "field    of   education"    and    is   therefore
An Equal Opportunity/          disqualified      from service       on the Coordinating      Board of    the Texas
Affirmative Action Employer    College     and University   System.

                                      Section       11.22     of  the   Texas  Education         Code       provides     the
                               qualifications         for    membership   on the  State         Board      of   Education.
                               Section     11.22(b)     states:

                                               No person shall   be eligible      for election     to or
                                           serve on the board if he holds an office            with the
                                           State    of   Texas  or   any    political      subdivision
                                           thereof,    or holds employment with or receives           any




                                                                 p.    1691
 Honorable    Richard   G. Morales.      Sr.   - Page 2      (MW-479)




              compensation      for services      from the state       or any
              political     subdivision      thereof   (except    retirement
              benefits    paid by the State of Texas or the federal
              government),       or     engages     in  organized       public
              educational     activity.      (Emphasis added).

Laredo      Junior     College     is    a public     junior   college.       Educ . Code
§61.003(2).        A teacher     at Laredo Junior College       receives    compensation
from a political           subdivision      of    the state   and takes      part   in an
“organized      public    educational     activity.”     The language    of the statute
is clear     and capable       of no other interpretation;         any person who fits
into one of the listed           categories     is barred from service     on the State
Board of Education.          -See Attorney     General Opinion M-1290 (1972).

       It has been argued     that   the 1972 amendment to article            XVI.
section    40 of the Texas Constitution      liberalized    the application      of
incompatibility   provisions   in the constitution,      the statutes,    and the
common law.       However,   the   amendment makes        only   the   following
exception:

             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      es members of the governing             bodies    of
             school    districts,       cities,     towns,     or other     local
             governmental       districts;       provided,      however,      that
             such State       emploree       or other      individuals      shall
             receive    no salary      for serving      as members of such
             governing    bodies.       (Emphasis added).

Members of both     the State      Board of Education        and the Coordinating
Board of the Texas College        and University     System     are state     officers.
See Educ. Code 0911.24,      61.021,    61.022;  Freeman v. Dies,         307 F. Supp.
1028 (N.D.   Tex.    1969).     The exception      to dual       office     holding      is
limited  to   state    employees      serving   in    specified       local     offices.
Attorney  General    Opinion    MW-149 (1980).       See also       Attorney     General
Opinion H-739 (1975);     WW-165 (1957).

       Since    our answer to your question       is that service     on the two
state    boards    is prohibited,    we must determine    if  this    prohibition
violates     the civil    rights  of,   or deprives   equal  protection      to,  a
teacher    so barred.

       The federal   civil     rights   act has never been held to apply to             the
“right    to candidacy.”         See,   e.g.,  Bullock   v. Carter, 405 U.S.            134
(1972).     -See 42 U.S.C.     51981,   Notes of Decisions.

       We turn to the equal protection     issue.     We note initially       that
section    11.22(b) of the Texas Education,     Code prohibits       a described
class   of persons  from seeking a particular      elective  office.      Section
61.022.   on the other   hand, merely   limits    the group from which          the




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Honorable      Richard     G. Morales,       Sr.    - Page 3      (Mw-479)




governor   may appoint    a coordinating      board member to persons                       who will
not be “employed       professionally     for    remuneration in the                        field     of
education”     during   the    term of   office.      We will  discuss                         section
11.22(b)   first.

        The Supreme Court            has upheld      election       laws which        classified
candidates       for purposes      of access    to the ballot        on the ground that the
classification         served     an “important         state     interest.”       Jenness        v.
Fortson,       403 U.S.       431 (1971)      (petition       procedure      for   independent
candidates       who had not won party primary).               Compare Bullock V. Carter,
supra     (statute    denying ballot       access     on basis      of candidate’s        ability
to    pay     large    filing      fees   must be        “closely      scrutinized”).            The
existence       of barriers      to candidate      access     to the ballot        will     compel
close      scrutiny     where     such barriers        have a substantial             impact      on
voters,      and where this impact Is related               to the economic resources             of
the candidate       and electorate.        Bullock v. Carter,          supra.    at 144.

       State     laws which         restricted       political       candidacies     of    public
employees,      without     discriminating        on the basis        of economic     resources
or other      such imnermlssible          considerations.        have been sublect         to the
“traditional”        or - IIrational       basis”     standard     of    review.     Morial      v.
Judiciary     Commission of Louisiana,             565 F.2d 295 (5th Cir. 1977).             cert.
denied,    435 U.S. 1013 (1978);            Wilson v. Moore, 346 F. Supp. 635 (N.D.
W.Va. 1972).        Such restrictions          on public     employees do not violate           the
equal    protection       clause     unless     they are unreasonably            and obviously
arbitrarv      and unless       no conceivable         factual    situation      would iustifv
the apparently        unequal      treatment.        Wilson v. Moore, supra,            it    639:
See also       Horial     v.    Judiciary       Commission      of Louisiana,        supra.      at
304-06;     Annot.,     59 L.Ed.2d        852 (1979);        Annot.,     44 A.L.R.     Fed.     306
(1979).

        In our opinion,        section    11.22 of the Education             Code is subject          to
rational     basis scrutiny,         and a rational       basis for its restrictions                can
be shown.        Section      11.22(b)    prohibits       service     on the State Board of
Education     by any person who holds office                with the state or a political
subdivision,       or who receives          compensation       from any such governmental
body.     Letter     Advisory     No. 56 (1973) noted that under this provision                         a
State Board of Education               member   represents        a particular         district       in
addition     to serving       as a state official         whose decisions          have statewide
effect.       His duties        are therefore        twofold,       allowing       less    time     for
other public        activities      and offering       more opportunities             for conflict
of interest       to arise.       Moreover,     the extensive         activities       of a member
of the State Board of Education                could create        conflicts       of interest        if
he served       the state        or a political          subdivision         as an officer            or
employee,     or received       any compensation        therefrom.         See also Educ. Code
P8135.03.      135.04      (State     Board of Education           approves       junior      college
vocational     education       programs);     Attorney      General Opinion H-580 (1975):
These interests         provide     a rational      basis    for section         11.22(b)      of the
Education     Code.

      Section        61.022      of   the    Texas    Education     Code   prevents    the
appointment        to    the     Coordinating      Board   of   any   person    “employed



                                            p.     1693
Honorable     Richard    G. Morales,       Sr.    - Page 4     (MW-479)




professionally       for remuneration           In the field     of education     during his
term of office."         This provision,         which concerns     an appointive     office,
does not restrict          anyone's       candidacy     to elective    office    or have an
impact on the electorate's               choice   of a candidate.       Since the voters’
and candidate's        interests       form the basis      of equal protection        attacks
on ballot     access requirements,           the Supreme Court cases on this subject
are not necessarily           applicable.         Section   61.022    need only meet the
usual    rational     basis     test.      If any state     of facts     will   sustain      the
statute,     it will    be presumed the legislature              had those facts      in mind
when     it    enacted      the     statute.        McDonald     v.   Board   of     Election
Commissioners       of Chicago,        394 U.S. 802 (1969);         Ex parte Tigner,         132
S.W.2d 885 (Tex. Crim. App. 1939).

        The Coordinating         Board has considerable           direct   control      over state
institutions         of higher      education,       including     junior     colleges.        Educ.
Code 0161.051-.0631.              It is also        required      to encourage        cooperation
between public         and private       institutions,        and to consider         the availa-
bility     of degree and certificate              programs in private           institutions      of
higher      education       in determining         programs      for    public     institutions.
Educ.     Code 561.064.          Thus,     even an educator          employed by a private
institution       of higher       education     could     find that his responsibilities
as a member of the Coordinating                  Board conflict        with his interests         in
his employment.           The Coordinating        Board also is empowered to order the
initiation,        consolidation,         or elimination         of teacher        certification
programs at institutions             of higher      education.        Educ. Code 961i051(e).
See also Educ. Code 113.039(a).                  This power would have some impact on
the supply of teachers            for public      elementary      and secondary 'schools         and
the private         institutions       that compete with them.                Consequently;       we
believe      there     is a rational         basis      for   the prohibition          in section
61.022,     and that it does not violate               the equal protection          clause.

                                         SUMMARY

                  Section      61.022    of   the    Texas Education        Code
              prohibits      teachers     employed     by school     districts
              from serving         on the Coordinating          Board of       the
              Texas College       and University      System; section      11.22
              of the code bars          teachers     employed     in a public
              junior    college     from serving     on the State Board of
              Education.        The classifications          created    by the
              legislature      do not violate      the civil    rights   of, or
              deprive    equal protection       to, a teacher so barred..

                                                     s+/



                                                          MARK        WHITE
                                                          Attorney   General of     Texas

JOEN W. FAINTER, JR.
First Assistant Attorney           General




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Honorable    Richard   G. Morales,    Sr.    - Page 5   (MU-479)




RICHARD E. GRAY III
Executive Assistant      Attorney    General

Prepared    by Susan L. Garrison      6
Patrlcla    Hinojosa
Assistant    Attorneys General

APPROVED:
OPINION COMMITTEE

Susan L. Garrison,      Chairman
Jon Bible
Rick Gilpin
Patricia   Hlnojosa
Jim Moellinger




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