    OFFICE OF THE ATTORNEY GENERAL - STATE OF TEXAS

    JOHN         CORNYN




                                                      April 25,200l



Mr. Jim Nelson                                              Opinion No. JC-037 1
Commissioner
Texas Education Agency                                     Re: Whether a school district trustee may serve as a
1701 North Congress Avenue                                 volunteer teacher in the same district (RQ-03 18-JC)
Austin, Texas 78701-1494

Dear Commissioner            Nelson:

       You have requested our opinion as to whether a member of a school district board of trustees
may serve as a volunteer teacher in that district.* For the reasons explained below, we conclude that
he may not do so.

         You indicate that a member of the board of trustees of the Pearland Independent School
District (“the District”) wishes “to serve as a volunteer, unpaid, part-time history teacher at Pearland
High School for one period a day (or, more appropriately, for ninety minutes every other day on a
block schedule) for a single semester in the Fall of 2001 .“2 The trustee would not be paid for his
teaching duties, and he would not be required “to perform some of the traditional ‘non-classroom’
duties that teachers are assigned, such as lunch duty or hall duty, so his supervisory relationship with
his principal would be minimal and limited solely to the classroom. In many ways, he would be
treated more like a guest lecturer . . . than a full-time teacher.“3

        Incompatibility    is an aspect of dual office holding. The doctrine prohibits a person from
holding two positions simultaneously where one position might impose its policies on the other or
subject it to control in some other way. 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. No. JM-129
(1984). Three branches of incompatibility have been recognized by the courts and this office: self-
appointment, self-employment, and conflicting loyalties. See Ehlinger v. Clark, 8 S.W.2d 666,674




         ‘See Letter from Mr. Jim Nelson, Commissioner    of Education, Texas Education Agency, to Honorable
John Cornyn, Texas Attorney General (Nov. 29,200O) (on file with Opinion Committee) [hereinafter Request Letter].

             2Letter from Mr . Christopher B. Gilbert, Bracewell & Patterson, L.L.P., to Mr. Jim Nelson, Commissioner   of
Education,     at 1 (Nov. 2,200O) (attachment to Request Letter) [hereinafter Bracewell & Patterson Letter].

             3Bracewell & Patterson Letter, supra note 2, at 3.
Mr. Jim Nelson     - Page 2                                JC-037   1




(Tex. 1928); Thomas, 290 S.W. at 153; Tex. Att’y Gen. LO-95-029, at 2; Tex. Att’y Gen. LA-l 14
(1975). It is self-employment incompatibility that concerns us here.

        Self-employment incompatibility was not fully recognized in Texas until a 1975 opinion of
the Attorney General. It clearly derives, however, from the Texas Supreme Court’s decision in
Ehlinger, in which the court declared:

                 It is because of the obvious incompatibility of being both a member
                 of a body making the appointment and an appointee of that body that
                 the courts have with great unanimity throughout the country declared
                 that all officers who have the appointing power are disqualified for
                 appointment to the offices to which they may appoint.

Ehlinger, 8 S.W.2d at 674 (ruling that county judge could not be employed as attorney by the
commissioners court over which the judge presided). In 1975, the Attorney General considered
whether a public school teacher was barred by common-law incompatibility from serving as a
member of the board of trustees of the district in which she was employed. Relying on 7homas,
Ehlinger, and a 1973 case from the Supreme Court of Wyoming, this office said that “the common
law doctrine of incompatibility prevents a public school teacher in Texas from serving at the same
time as a member of the board of trustees for the employing district.” Tex. Att’y Gen. LA-l 14
(1975) at 4. Subsequent decisions of the Attorney General have affirmed this conclusion. See, e.g.,
Tex. Att’y Gen. LO-97-034, LO-90-045, LO-89-057, LO-89-002.

        The District believes that these examples are distinguishable from the matter before us in
several respects. In the first place, the District contends that the trustee’s status as a volunteer
teacher rather than an actual employee means that, in the present instance, self-employment
incompatibility is not applicable. The trustee would not be paid a salary to teach and would be
relieved of certain responsibilities    imposed on other teachers4       In our opinion, however,
compensation is not the key element of the rationale supporting self-employment incompatibility.
Rather, it is the subordination of one position to the other.

         In Attorney General Opinion M-97 (1983), the Attorney General held that an individual was
prohibited from simultaneously     serving as both a junior college trustee and a member of the
Coordinating Board of the Texas College and University System. In deciding that the positions were
incompatible, JM-97 used the following test:

                One of the most important tests as to whether offices are incompatible
                is found in the principle that the incompatibizity is recognized
                whenever one is subordinate to the other in some of its important and
                principal duties, or is subject to supervision by the other, or where a
                contra&y and antagonism would result in the attempt by one person


       4See Bracewell   & Patterson   Letter, supra note 2, at 1.
Mr. Jim Nelson     - Page 3                            JC-037   1




                 to discharge the duties of both. Under this principle two offices are
                 incompatible where the incumbent of one has the power to remove
                 the incumbent of the other, though the contingency on which the
                 power may be exercised is remote, and it also exists where the
                 incumbent of one office has thepower of appointment as to the other
                 office, or to audit the accounts of another, or to exercise supervision
                 over another.

Tex. Att’y Gen. Op. No. JM-97 (1983) at 2 (quoting Knuckles v. Bd. ofEduc., 114 S.W.2d 511,514
(KY. 1938) (emphasis added). Because members of a junior college governing board serve without
compensation, the matter of compensation was irrelevant to the opinion’s conclusion.      See TEX.
EDUC. CODEANN. 0 130.082(d) (Vernon Supp. 2001). In Attorney General Opinion JM-386 (1985),
this office said that an alderman was barred from serving as a member of his city’s police reserve
because a statute gave the city council “considerable supervisory authority over members of the
police reserve force and makes the force accountable to the city council.” Tex. Att’y Gen. Op. No.
JM-386 (1985) at 3. Because the statute permitted, but did not require, the municipal governing
body to provide compensation to members of the police reserve force,5 the payment of compensation
was, once again, not a determining factor in the Attorney General’s decision. See id. at 2.

         Under the test of “supervision,” we believe it is clear that the trustee is precluded from
serving as a volunteer teacher. Section 11.201 of the Education Code makes it the duty of the
superintendent of an independent school district to assume “responsibility for the assignment and
evaluation of all personnel of the district other than the superintendent.”      TEX. EDUC. CODE ANN.
8 11.201(d)(2) (V emon 1996). Section 11.202 makes it the duty of a school principal to “assign,
evaluate, and promote personnel assigned to the campus.” Id. 8 11.202(b)(5). And section 21.352
requires that teachers be evaluated “at least once during each school year.” Id. 8 21.352. In our
opinion, the nature of the teaching profession, its statutory subordination to school and district
administrative officials, and the significance that courts and this office have attached to supervision
as the key to self-employment    incompatibility, mean that the mere absence of compensation and
certain non-teaching duties are not sufficient to permit a school district trustee to serve as a volunteer
teacher in his district.

         It has also been suggested that the temporary and intermittent nature of this arrangement
precludes the applicability of common-law incompatibility.       In Attorney General Opinion JM-847
(1988), this office said that a legislator was not barred from serving as a special commissioner in an
eminent domain proceeding. As the opinion notes, “bludicial decisions and prior opinions of this
office state as an essential element of an office that its duties are continuing in nature and not
intermittent.” Tex. Att’y Gen. Op. No. JM-847 (1988) at 3 (citing Knox v. Johnson, 141 S.W.2d
698,700 (Tex. Civ. App.-Austin 1940, writ ref d). In Attorney General Letter Opinion 96-08 1, the
Attorney General concluded that an appraisal review board member was not ineligible to serve as
an alternate election judge in a single municipal election. See Tex. Att’y Gen. LO-96-08 1, at 4. By


        ‘See TEX.Lot. GOV’T CODEANN. 0 141.007 (Vernon 1999) (formerly Revised Civil Statutes, article 998a(e)).
Mr. Jim Nelson      - Page 4                               JC-037    1




contrast, in Attorney General Letter Opinion 96- 145, this office said that a former district judge
sitting by appointment held an “office,” because he was “appointed for a ‘term of court’ rather than
for one case only”; because he had, while sitting on assignment, “all the powers of a regular judge,”
and because, while serving, he had administrative as well as judicial responsibilities.    Tex. Att’y
Gen. LO-96-145, at 2. For those reasons, his service as judge was not merely intermittent, and as
a result, he was prohibited from simultaneously serving as a part-time municipal judge.

         It is not evident that these decisions involving intermittent, temporary duties are applicable
to the situation you present, because all involve “offices,” which teachers, whether volunteer or not,
do not hold. Nevertheless, we doubt that the trustee’s teaching position can reasonably be said to
be intermittent. The trustee proposes to teach a regular class for a full semester, and there is nothing
in the facts presented that would preclude his appointment to additional semesters. Even if his
responsibilities    are limited primarily to teaching, such duties clearly comprise the predominant
element of that profession. In our opinion, a volunteer teacher in the circumstances described cannot
be said to hold a position that is merely intermittent.

         Finally, you contend that the situation here can best be described as one in which the trustee
merely assumes the “additional duties” of a volunteer teacher! This argument relies on the decision
of this office in Attorney General Letter Opinion 98-036, in which the Attorney General said that
a regent of Texas Southern University “does not violate the common-law doctrine of incompatibility
by performing unpaid volunteer coaching services for a section of the football team.” Tex. Att’y
Gen. LO-98-036, at 5. The opinion declared that “[t]he opinions on this subject do not stand for the
proposition that volunteers for state agencies are employees for purposes of ‘self-employment’
incompatibility.”   Id. at 3. In the Texas Southern case, the regent did “not appear to hold a position
with the university nor to have been assigned duties by the board of regents but contribut[ed] his
coaching assistance when needed.” Id. at 3-4. Consequently, “[h]is voluntary coaching is more
readily characterized as additional duties related to his office . . . than as a separate position subject
[to] the common-law doctrine of incompatibility.”      Id. at 4 n. 16. Consequently,      “[tlhis volunteer
arrangement does not, in our opinion, provide sufficient occasion for conflict with the office of
regent to invoke the common-law doctrine of incompatibility.” Id. at 4.

        Although we question the rationale of Letter Opinion 98-036 and its unnecessarily broad
language, we need not overrule it because it is sufficiently distinguishable from the circumstances
you describe. In the Texas Southern case, the regent had simply “volunteered to coach the kickers
for the football team.” Id. at 1. There is no evidence that his duties in this regard were those that
were ordinarily performed by a compensated employee in a regular position. Neither is there
evidence that his service as volunteer coach involved regular hours on specific days, or a specific
period of time agreed upon in advance.       In these respects, his coaching duties more closely




        6See Bracewell   & Patterson Letter, supra note 2, at 3-4.
Mr. Jim Nelson     - Page 5                                 JC-037     1




resembled those of a “guest lecturer” in a classroom                 situation.7 More to the point, they had about
them the unmistakable whiff of the informal.

         By contrast, the trustee in the present instance proposes to teach a regular academic class
during regular school hours, on specific dates, and for a particular length of time. More importantly,
he would be responsible for the instruction of public school students, with all that entails, in a course
for which those students would receive credit toward high school graduation. We believe that such
a role is significantly different from that of the volunteer coach in the Texas Southern scenario. The
position of volunteer under the circumstances you describe is not vested in any particular with any
lesser degree of significance than that of a regular teacher.

        We conclude that the trustee of whom you inquire is barred by the common-law doctrine of
incompatibility from simultaneously serving as a volunteer part-time teacher in a regular academic
class for a single semester.




        7See Bracewell   & Patterson   Letter, supra note 2, at 3.
Mr. Jim Nelson     - Page 6                       JC-0371




                                        SUMMARY

                         A trustee of the Pearland Independent School District is
                 barred by the common-law        doctrine of incompatibility     from
                 simultaneously serving as a part-time volunteer teacher in a regular
                 academic classroom for a single semester.




                                               Attorney General of Texas



ANDY TAYLOR
First Assistant Attorney General

SUSAN D. GUSKY
Chair, Opinion Committee

Rick Gilpin
Assistant Attorney General - Opinion Committee
