Can a Texas district attorney also work as a paid part-time teacher at a community college?

TX AG Opinion GA-0273: Can a DA teach at a community college?

Plain-English summary

The Henderson County District Attorney for the 173rd Judicial District asked the attorney general whether she could simultaneously hold a part-time, paid teaching position at Trinity Valley Community College. She was subject to the Professional Prosecutors Act, which bars a district attorney from the private practice of law, and she also raised a 1973 Letter Advisory suggesting the separation-of-powers clause of the Texas Constitution might bar a prosecutor (an executive branch official) from also serving in a position tied to a state-supported school.

The opinion walked through each possible legal obstacle and found none applied. Teaching does not involve representing clients or providing legal services, so it is not the "practice of law" the Professional Prosecutors Act bars. The Texas Constitution's ban on holding more than one "civil office of emolument" at the same time did not apply either, because Texas courts have long held that a teacher or professor employed by a governmental body, including at a state-supported school, is an employee rather than an officer, so a community college instructor position is not an "office" the ban would even reach. The opinion also expressly abandoned an older, narrower reading of the separation-of-powers clause from a 1973 Letter Advisory that had suggested a district attorney could not simultaneously teach at a state institution, noting that later court decisions and AG opinions confirm the separation-of-powers doctrine ordinarily does not bar dual office holding. Finally, the common-law doctrine of incompatibility, which covers self-appointment, self-employment, and conflicting loyalties between two offices, did not apply because a district attorney is elected (not appointed by or supervising a community college instructor) and because the conflicting-loyalties branch requires both positions to be "offices," which a teaching position is not.

Currency note

This opinion was issued in 2004. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Who this opinion affected (as of 2004)

District attorneys and other prosecutors covered by the Professional Prosecutors Act: The opinion confirmed that the Act's bar on the private practice of law did not extend to teaching, since teaching does not involve representing clients or rendering legal services, clearing the way for a prosecutor to hold a compensated teaching position without violating the Act.

Elected officials considering outside teaching positions at public colleges or universities: The opinion confirmed that a teaching position at a state-supported institution is legally an employment, not a civil office, so the constitutional dual-office-holding ban in article XVI, section 40 and the common-law conflicting-loyalties doctrine, both of which require an "office," do not block holding an elected office and a teaching job at the same time.

Anyone relying on the 1973 Letter Advisory No. 55 separation-of-powers theory: The opinion expressly abandoned that older interpretation, confirming that the separation-of-powers doctrine ordinarily poses no obstacle to dual office holding between different branches of government.

Common questions

Does a Texas prosecutor violate any ethics rule by teaching a class at a community college for pay?
No, according to this 2004 opinion, because teaching does not involve representing clients or performing legal services, it is not the "private practice of law" that the Professional Prosecutors Act prohibits for district attorneys.

Is a community college instructor considered a public "officer" under Texas law?
No. The opinion cited established Texas case law holding that a teacher or professor at a government-run school, including a state-supported college, is an employee rather than an officer, meaning the constitutional and common-law rules against holding two "offices" simultaneously do not apply to a teaching position.

Can an elected prosecutor and a public college instructor be the same conflict-of-interest problem as two government offices held by the same person?
Not under this opinion's reasoning. The common-law incompatibility doctrine's self-appointment and self-employment branches did not apply because a district attorney neither appoints nor supervises a college instructor, and the conflicting-loyalties branch did not apply because it requires both positions to be "offices," and a teaching job is not one.

Background and statutory framework

Chapter 46 of the Government Code, the Professional Prosecutors Act, applies to district attorneys like the one for the 173rd Judicial District and bars them from engaging in the private practice of law. The Government Code defines "practice of law" broadly to include preparing pleadings, managing legal proceedings, and rendering legal advice or services requiring legal skill, but teaching a class does not fall within that definition, so the Act's private-practice ban simply does not reach a teaching position.

Article XVI, section 40(a) of the Texas Constitution separately prohibits an individual from holding more than one "civil office of emolument" at the same time. Texas courts, including Ruiz v. State and Tilley v. Rogers, have consistently held that a teacher or professor employed by a governmental body, even a state-supported college or university, is an employee rather than an officer, so this constitutional bar does not reach teaching positions at all. A related proviso in article XVI, section 40(b) lets state employees serve without compensation on certain local governmental district boards, but that proviso was not relevant here since a community college instructor is not a member of such a governing body.

The opinion also addressed the district attorney's separate concern, based on a 1973 Letter Advisory, that the separation-of-powers clause in article II, section 1 of the Texas Constitution might bar an executive-branch prosecutor from also working at a state-supported educational institution. The opinion expressly abandoned that older interpretation, citing later cases like Turner v. Trinity Indep. Sch. Dist. Bd. of Trustees (permitting a school trustee to also serve as a justice of the peace) and subsequent AG opinions establishing that the separation-of-powers doctrine ordinarily does not bar dual office holding between branches of government. Finally, the opinion applied the three-part common-law incompatibility doctrine: self-appointment and self-employment did not apply because a district attorney neither appoints nor supervises community college instructors and is herself an elected official, and the conflicting-loyalties branch, which traces back to a 1927 Texas case involving a school trustee and city alderman, requires both positions at issue to be "offices," a requirement not met here since a community college instructor holds no office of emolument.

Citations

Statutes:

• Tex. Const. art. XVI, § 40(a)
• Tex. Const. art. XVI, § 40(b)
• Tex. Const. art. II, § 1
• Tex. Gov't Code Ann. §§ 46.001(3)-.002(1) (Vernon 2004)
• Tex. Gov't Code Ann. § 46.005(a)
• Tex. Gov't Code Ann. § 81.101(a) (Vernon Supp. 2004-05)
• Tex. Educ. Code Ann. § 130.205 (Vernon 2002)

Cases:

• Ruiz v. State, 540 S.W.2d 809, 811 (Tex. Civ. App.-Corpus Christi 1976, no writ)
• Tilley v. Rogers, 405 S.W.2d 220, 224 (Tex. Civ. App.-Beaumont 1966, writ ref'd n.r.e.)
• Turner v. Trinity Indep. Sch. Dist. Bd. of Trustees, 700 S.W.2d 1, 2 (Tex. App.-Houston [14th Dist.] 1983, no writ)
• 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. LO-93-096
• Tex. Att'y Gen. LA-55 (1973)
• Tex. Att'y Gen. Op. No. JM-519 (1986)
• Tex. Att'y Gen. LO-92-004
• Tex. Att'y Gen. Op. No. GA-0021 (2003)
• Tex. Att'y Gen. Op. No. JC-0216 (2000)
• Tex. Att'y Gen. Op. No. GA-0224 (2004)
• Tex. Att'y Gen. Op. No. GA-0032 (2003)
• Tex. Att'y Gen. Op. No. GA-0169 (2004)
• Tex. Att'y Gen. Op. No. JM-1266 (1990)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0273
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2004/ga0273.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

ATTORNEY GENERAL OF TEXAS

GREG ABBOTT

November 23, 2004

The Honorable Donna R. Bennett
Henderson County District Attorney
173rd Judicial District
109 West Corsicana, Suite 103
Athens, Texas 75751

Opinion No. GA-0273

Re: Whether the district attorney of the 173rd Judicial District may simultaneously hold a part-time teaching position at Trinity Valley Community College and receive compensation for doing so (RQ-0234-GA)

Dear Ms. Bennett:

You ask whether the district attorney of the 173rd Judicial District may simultaneously hold a part-time teaching position at Trinity Valley Community College[1] and receive compensation for doing so?[2]

You indicate that the district attorney of the 173rd Judicial District is subject to the Professional Prosecutors Act, chapter 46 of the Government Code. See Tex. Gov't Code Ann. §§ 46.001(3)-.002(1) (Vernon 2004). As such, the district attorney is barred from engaging in the private practice of law. Id. § 46.005(a). The teaching profession, however, does not generally involve the representation of clients or the provision of other legal services and thus does not constitute the private practice of law. See id. § 81.101(a) (Vernon Supp. 2004-05) ("[T]he 'practice of law' means the preparation of a pleading or other action document incident to an action or special proceeding or the management of the action or proceeding on behalf of a client before a judge in court as well as a service rendered out of court, including the giving of advice or the rendering of any service requiring the use of legal skill or knowledge, such as preparing a will, contract, or other instrument, the legal effect of which under the facts and conclusions involved must be carefully determined."). Consequently, the Professional Prosecutors Act does not prohibit a district attorney from holding a teaching position at a community college. You wish to know whether the district attorney, for purposes of dual office holding, may simultaneously hold a part-time teaching position at Trinity Valley Community College. See Request Letter, supra note 1, at 1.

Article XVI, section 40 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). It is well established that a teacher employed by a governmental body does not hold a civil office of emolument. See Ruiz v. State, 540 S.W.2d 809, 811 (Tex. Civ. App.-Corpus Christi 1976, no writ) (public school teacher does not hold an office of emolument); Tilley v. Rogers, 405 S.W.2d 220, 224 (Tex. Civ. App.-Beaumont 1966, writ ref'd n.r.e.) (a professor at a state-supported institution of higher education is an employee rather than an officer); see also Tex. Att'y Gen. LO-93-096, at 1 (a compensated teaching position with a state university is an "employment" rather than an "office"). Because an instructor at a community college does not hold an office of emolument, article XVI, section 40 does not bar a district attorney from simultaneously holding the position of instructor at a community college.

Article XVI, section 40 also contains a proviso permitting "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" to serve as members of the governing bodies of various local governmental districts, provided they receive no compensation for doing so. Tex. Const. art. XVI, § 40(b). Although a district attorney does indeed receive compensation from funds of the state, a community college instructor is not a member of a governing body of a local governmental district. Thus, this proviso to article XVI, section 40 does not prohibit a district attorney from receiving a salary for serving as an instructor at a community college.[3]

We must also address the common-law doctrine of incompatibility, which has three aspects: self-appointment, self-employment, and conflicting loyalties. See Tex. Att'y Gen. Op. Nos. GA-0224 (2004) at 2, GA-0032 (2003) at 4. Neither self-appointment nor self-employment are applicable here because a district attorney neither appoints nor supervises community college instructors. Moreover, district attorneys are elected officials and, as such, are neither appointed nor supervised by community college instructors. The third aspect of common-law incompatibility, conflicting loyalties, was first addressed by a Texas court in 1927. See Thomas v. Abernathy County Line Indep. Sch. Dist., 290 S.W. 152, 153 (Tex. Comm'n App. 1927, judgm't adopted) (offices of school trustee and city alderman are incompatible). It is generally held that both positions must be "offices" in order for the conflicting loyalties doctrine to be applicable. See Tex. Att'y Gen. Op. Nos. GA-0169 (2004) at 2, JM-1266 (1990). As we have noted, a community college instructor does not hold an office of emolument. Accordingly, the conflicting loyalties aspect of common-law incompatibility does not bar a district attorney from serving at the same time as a community college instructor.

We conclude that the district attorney of the 173rd Judicial District may simultaneously hold a part-time teaching position at Trinity Valley Community College and receive compensation for doing so.

SUMMARY

The district attorney of the 173rd Judicial District may simultaneously hold a compensated part-time teaching position at Trinity Valley Community College.

Attorney General of Texas

BARRY R. MCBEE
First Assistant Attorney General

DON R. WILLETT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Rick Gilpin
Assistant Attorney General, Opinion Committee

Footnotes

[1] The Trinity Valley Community College District is established by section 130.205 of the Education Code. That statute provides:

The service area of the Trinity Valley Community College District includes the territory within:

(1) the part of the Terrell Independent School District located in Hunt county;

(2) Anderson, Henderson, Kaufman, and Rains counties; and

(3) Van Zandt County, except the territory within the Grand Saline, Lindale, and Van independent school districts.

Tex. Educ. Code Ann. § 130.205 (Vernon 2002).

[2] See Letter from Honorable Donna R. Bennett, Henderson County District Attorney, 173rd Judicial District, to Honorable Greg Abbott, Texas Attorney General, at 1 (May 26, 2004) (on file with the Opinion Committee, also available at http://www.oag.state.tx.us) [hereinafter Request Letter].

[3] You refer to Letter Advisory No. 55 (1973) for the proposition that article II, section 1 of the Texas Constitution, the separation of powers doctrine, prohibits a district attorney from simultaneously serving as an instructor at a state-supported institution of higher education, because the positions exist in different branches of government. See Request Letter, supra note 1, at 1; Tex. Att'y Gen. LA-55 (1973) attached to Request Letter. This interpretation of article II, section 1 has been abandoned by this office, in light of subsequent judicial decisions and attorney general opinions. See, e.g., Turner v. Trinity Indep. Sch. Dist. Bd. of Trustees, 700 S.W.2d 1, 2 (Tex. App.-Houston [14th Dist.] 1983, no writ) (school board trustee permitted to also serve as justice of the peace); Tex. Att'y Gen. Op. No. JM-519 (1986); Tex. Att'y Gen. LO-92-004. In the usual circumstance, the separation of powers doctrine poses no bar to dual office holding. See Tex. Att'y Gen. Op. Nos. GA-0021 (2003), JC-0216 (2000).