Can a Texas substitute teacher be paid for serving on a city council, or does the ban on holding two paid public positions block it?

TX AG Opinion GA-0394: Can a substitute teacher be paid for serving on a city council?

Plain-English summary

The Texas Constitution generally stops a person who is paid directly or indirectly from state funds from also drawing a salary for serving on a local governing body like a school board or city council. In 2001 the voters added an exception. Article XVI, section 40(b)(1) lets "a schoolteacher, retired schoolteacher, or retired school administrator" receive compensation for serving as a member of the governing body of a school district, city, town, or local governmental district. A city council member is a member of a city's governing body, so a "schoolteacher" can sit on a city council and be paid for it. The question Calhoun County's district attorney raised was whether a substitute teacher counts as a "schoolteacher" for this exception.

The Attorney General concluded yes. No Texas statute or court defines "schoolteacher," and "substitute teacher" appears in the Education Code only once, where a "professional employee of a school district" is defined to include a "teacher, including a substitute teacher" (section 22.051(a)(1)). Without a controlling legal definition, the opinion turned to the popular meaning the voters would have understood. Dictionaries define a schoolteacher simply as a person who teaches in a school, which is broad enough to cover a substitute. The opinion also looked at the materials the voters saw before adopting the amendment: the House bill analysis and the Texas Legislative Council's analysis both framed the change as widening the pool of qualified candidates for local office. None of the arguments for the amendment excluded substitutes, and one argument, that active teachers could serve as well as anyone holding a full-time job, applied with extra force to substitutes, who often do not work full time and may have more time for board service.

The opinion added that the common-law incompatibility doctrine did not block the arrangement. That doctrine bars one person from holding two positions only in cases of self-appointment, self-employment, or conflicting loyalties, and the conflicting-loyalties branch applies only when both positions are "offices." A city council member holds an office, but a substitute teacher is a public-school employee, not an officer, so the doctrine did not apply. The bottom line: a substitute teacher may receive compensation for serving as a member of a city council.

Currency note

This opinion was issued in 2006. 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.

Article XVI, section 40 of the Texas Constitution and the Education Code provisions cited here may have been amended since 2006. Anyone weighing whether a particular school employee can be paid for serving on a local board today should confirm the current constitutional text and any later AG opinions before relying on the 2006 analysis.

Who this opinion affected (as of 2006)

Substitute teachers considering local office: The opinion told them they fell within the "schoolteacher" exception and could be paid for serving on a city council despite the general bar on dual public compensation.

Cities and school districts: It clarified that hiring a sitting council member as a substitute teacher (or seating a substitute teacher on the council) did not by itself create an unconstitutional dual-compensation problem.

Local prosecutors and officials: It gave them a reading of "schoolteacher" in article XVI, section 40(b)(1) broad enough to include substitutes, and confirmed the incompatibility doctrine did not bar the combination because a substitute teacher holds employment, not an office.

Common questions

Does the Texas Constitution let any state-paid worker draw a second salary for local board service?
No. The general rule bars it. The schoolteacher exception in article XVI, section 40(b)(1) is a specific carve-out for current and retired teachers and retired school administrators.

Why does a substitute teacher count as a "schoolteacher"?
Because the term is undefined in law, so the opinion used its popular meaning (a person who teaches in a school) and the voter materials behind the 2001 amendment, none of which excluded substitutes.

Did the incompatibility doctrine stop a substitute teacher from sitting on a city council?
No. The conflicting-loyalties branch of that doctrine applies only when both positions are offices, and a substitute teacher is an employee, not an officer.

Could a full-contract teacher also be paid for city council service?
The exception by its terms covers a "schoolteacher" generally; this opinion specifically resolved that substitutes are included. It did not narrow the exception to substitutes only.

Background and statutory framework

Article XVI, section 40(a) of the Texas Constitution bars holding more than one civil office of emolument, and section 40(b) bars most state-funded individuals from drawing a salary for serving on a local governing body, subject to the section 40(b)(1) exception for a schoolteacher, retired schoolteacher, or retired school administrator serving on a school district, city, town, or local governmental district (including water districts under Tex. Const. art. XVI, § 59 or art. III, § 52). The Education Code references a substitute teacher once, in defining "professional employee of a school district" to include a "teacher, including a substitute teacher" (Tex. Educ. Code Ann. § 22.051(a)(1) (Vernon Supp. 2005)). The schoolteacher exception was added by Tex. H.R.J. Res. 85, 77th Leg., R.S., 2001 Tex. Gen. Laws 6723, 6723-24, and the House and Legislative Council materials describe its purpose as widening the pool of candidates for local office.

The opinion noted that other states have, for narrow purposes, treated a substitute teacher as not a "teacher," but found those cases inapposite (Winkel v. Teachers Ret. Sys. of City of New York, 149 N.Y.S.2d 443 (N.Y. Sup. 1956); Gordon v. St. Bd. of Educ., 40 A.2d 670 (N.J. App. 1945)). On the incompatibility doctrine, the conflicting-loyalties branch applies only when both positions are offices, and a public school teacher is an employee rather than an officer (Thomas v. Abernathy County Line Indep. Sch. Dist., 290 S.W. 152 (Tex. Comm'n App. 1927, judgm't adopted); Ruiz v. State, 540 S.W.2d 809 (Tex. Civ. App.-Corpus Christi 1976, no writ)).

Citations

Statutes and constitutional provisions:

• Tex. Const. art. XVI, § 40(a), (b), (b)(1); art. XVI, § 59; art. III, § 52
• Tex. Educ. Code Ann. § 22.051(a)(1) (Vernon Supp. 2005)
• Tex. H.R.J. Res. 85, 77th Leg., R.S., 2001 Tex. Gen. Laws 6723, 6723-24

Cases:

• Winkel v. Teachers Ret. Sys. of City of New York, 149 N.Y.S.2d 443 (N.Y. Sup. 1956)
• Gordon v. St. Bd. of Educ., 40 A.2d 670 (N.J. App. 1945)
• Thomas v. Abernathy County Line Indep. Sch. Dist., 290 S.W. 152 (Tex. Comm'n App. 1927, judgm't adopted)
• Ruiz v. State, 540 S.W.2d 809 (Tex. Civ. App.-Corpus Christi 1976, no writ)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0394
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2006/ga0394.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

February 6, 2006

The Honorable Dan W. Heard
Calhoun County Criminal District Attorney
Post Office Box 1001
Port Lavaca, Texas 77979

Opinion No. GA-0394

Re: Whether a substitute teacher may receive compensation for serving as a member of a city council (RQ-0373-GA)

Dear Mr. Heard:

You ask whether a substitute teacher may receive compensation for serving as a member of a city council.[1]

Article XVI, section 40(a) of the Texas Constitution provides that "[n]o person shall hold or exercise at the same time, more than one civil office of emolument." Subsection (b) thereof declares, in relevant part:

(b) 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:

(1) a schoolteacher, retired schoolteacher, or retired school administrator may receive compensation for serving as a member of a governing body of a school district, city, town, or local governmental district, including a water district created under Section 59, Article XVI, or Section 52, Article III . . . .

TEX. CONST. art. XVI, § 40(b) (emphasis added). Clearly, a member of a city council is a member of the governing body of a city. Under the exception of subsection (b)(1), a "schoolteacher" may serve as a member of a city council and receive a salary for doing so. Your question focuses on whether the term "schoolteacher" includes a substitute teacher.

The term "substitute teacher" is not defined in any Texas statute or regulation. It is referenced only once: For purposes of subchapter B of chapter 22 of the Education Code, "professional employee of a school district" includes, inter alia, a "teacher, including a substitute teacher." See TEX. EDUC. CODE ANN. § 22.051(a)(1) (Vernon Supp. 2005). Likewise, we have found no Texas case that construes the scope of the term "substitute teacher."[2]

We may assume that, there being no controlling legal definition of "schoolteacher," the voters were at least familiar with the popular meaning of the term. One dictionary defines "schoolteacher" as "a person who teaches in a school." See NEW OXFORD AMERICAN DICTIONARY 1526 (2001). Another defines the term as a "person who teaches in a school below the college level." See AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE 1560 (4th ed. 2000). These definitions are sufficient to include a substitute teacher in a public school.

The compensation provision regarding a "schoolteacher" was added by the voters to article XVI, section 40 in 2001. See Tex. H.R.J. Res. 85, 77th Leg., R.S., 2001 Tex. Gen. Laws 6723, 6723-24. The bill analysis provided by the House of Representatives states as follows:

The Texas Constitution prohibits state employees or other individuals who are compensated directly or indirectly from state funds from receiving a salary for serving as a member of a governing body of a school district, city, town, or other local governmental district, including a water district. This may be a disincentive to some individuals who are qualified to serve as a board member. As proposed, House Joint Resolution 85 requires the submission to the voters of a constitutional amendment allowing current and retired school teachers and retired public school administrators to receive compensation for serving on the governing bodies of school districts, cities, towns, or other local governmental districts, including water districts.

HOUSE COMM. ON PUBLIC EDUCATION, BILL ANALYSIS, Tex. H.R.J. Res. 85, 77th Leg., R.S. (2001) (Enrolled Version) (emphasis added). We may conclude from this statement that one purpose of the amendment was to enlarge the group of persons available for service on local governmental bodies.

A subsequent publication of the Texas Legislative Council, provided to the voters prior to the general election, describes this and other arguments in favor of the amendment:

1. The proposed amendment would increase the pool of qualified candidates for local governing body positions. Active and retired teachers and retired school administrators would be more willing to contribute their time and talents to local governing bodies if they were compensated for their state and local service. An increase in the number of qualified candidates would improve the quality of the local governing bodies.

2. Service on many governing bodies of local governmental districts is part-time. Active public school teachers would be as able to serve as would any other person who holds a full-time job.

3. Many people who have been elected to serve on governing bodies of local governmental districts have been unaware of the prohibitions against dual officeholding and have had to repay the salary they received for service on the governing body.

4. Public school teachers and administrators may already receive salaries for serving as members of the commissioners court of a county and should be permitted to receive salaries for serving on other local governing bodies.

See TEXAS LEGISLATIVE COUNCIL, ANALYSES OF PROPOSED CONSTITUTIONAL AMENDMENTS, NOVEMBER 6, 2001 ELECTION, at 65 (Sept. 2001) (emphasis added). The voters who adopted the referenced amendment to article XVI, section 40 were presumably influenced by the above-referenced factors. None of the arguments advanced argue for the exclusion of substitute teachers from the amendment. Furthermore, the second argument referenced above, that an active teacher would be as able to serve as would any other person who holds a full-time job, weighs particularly in favor of including substitute teachers within the category of "schoolteachers." Substitute teachers do not in all cases hold full-time jobs. They would be more likely than contract teachers to have the additional time necessary for attending to service on a local governing board.

Both the popular definitions of the term "schoolteacher" and the information prepared by the Legislative Council indicate that the voters who adopted the amendment favored a broad and encompassing definition of the term, one that is broad enough to include a substitute teacher within its ambit. For these reasons, we conclude that the term "schoolteacher" as used in subsection (b)(1) of article XVI, section 40 of the Texas Constitution includes a substitute teacher. As a result, a substitute teacher may receive compensation for serving as a member of a city council.[3]

SUMMARY

A substitute teacher may receive compensation for serving as a member of a city council.

Very truly yours,

GREG ABBOTT
Attorney General of Texas

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

Footnotes

1. Letter from Honorable Dan W. Heard, Calhoun County Criminal District Attorney, to Honorable Greg Abbott, Attorney General of Texas (Aug. 5, 2005) (on file with the Opinion Committee, also available at http://www.oag.state.tx.us).

2. The courts of a few other states have held that, for specific purposes, a substitute teacher is not a "teacher." See Winkel v. Teachers Ret. Sys. of City of New York, 149 N.Y.S.2d 443, 447 (N.Y. Sup. 1956) (substitute teacher is not a "teacher" within meaning of statute limiting membership in teachers' retirement system); Gordon v. St. Bd. of Educ., 40 A.2d 670, 672 (N.J. App. 1945) (substitute teacher is not a "teacher" for purposes of tenure statute). Neither of these cases appear to be relevant to your inquiry.

3. We note that you raise, although you do not ask about, the common-law doctrine of incompatibility. That doctrine has three aspects: self-appointment, self-employment, and conflicting loyalties. See Tex. Att'y Gen. Op. No. GA-0348 (2005) at 1. The first two are not applicable because neither a substitute teacher nor a member of a city council appoints or employs the other. As for the third aspect - conflicting loyalties - it does not apply unless both positions constitute "offices." 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. Nos. JC-0054 (1999) at 2, JM-1266 (1990) at 4. Although a member of a city council, an elected official, holds an office, a substitute teacher does not. See Ruiz v. State, 540 S.W.2d 809, 811 (Tex. Civ. App.-Corpus Christi 1976, no writ) (public school teacher is an "employee" rather than an "officer").