Can a school principal also serve on the board of trustees of another school district in Texas?

TX AG Opinion GA-0738: Can a DAEP principal also serve on another district's school board?

Plain-English summary

State Representative Edmund Kuempel asked whether one person could serve as principal of a disciplinary alternative education program (DAEP) campus, run cooperatively for several districts, while also serving on the board of trustees of one of those member districts. The specific situation: a principal of a DAEP campus housed in Floresville ISD, which served several districts through a cooperative, lived in the Nixon-Smiley Consolidated ISD and wanted to run for its board of trustees. The principal's employment contract was with Floresville ISD; the Nixon-Smiley board voted on the cooperative contract but did not employ, evaluate, or supervise the principal.

The opinion looked at two legal hurdles. The first is the constitutional bar on holding more than one civil "office of emolument" (article XVI, section 40). A school board trustee serves without compensation, so that seat is not an office of emolument, and the constitutional provision simply does not apply.

The second is the common-law doctrine of incompatibility, which has three branches: self-appointment, self-employment, and conflicting loyalties. On the facts, none barred the dual service. Self-appointment and self-employment both turn on one position appointing or supervising the other, but a school district employs its own principals, and the Nixon-Smiley district did not appoint or employ the Floresville ISD principal, so those branches did not apply. The conflicting-loyalties branch applies only when both positions are "offices." A public officer is someone who exercises a sovereign function largely independent of others' control; a school principal works under the supervision of the superintendent and so is not an officer. With the principal not holding an office, the conflicting-loyalties branch did not bar the dual role either.

So the opinion concluded that, under the facts presented, neither the constitution nor the incompatibility doctrine prevented the same person from being the multi-district DAEP principal and a member-district trustee. It added an important caveat: if the cooperative contract gave the participating districts supervisory authority over the DAEP campus, the answer could change.

Currency note

This opinion was issued in 2009. 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.

The Education Code provisions on trustees, principals, and DAEPs may have been amended since 2009, and the analysis depends heavily on the specific cooperative contract. Confirm current law and the actual contract terms before relying on anything below.

Who this opinion affected (as of 2009)

School principals and prospective trustees: The opinion described the dual service as permissible on these facts, because the trustee seat is unpaid and a principal is not an officer subject to the conflicting-loyalties branch.

School districts in cooperative DAEP arrangements: The opinion explained that the result depends on the cooperative contract; if it gave participating districts supervisory authority over the DAEP campus, the incompatibility analysis could come out differently.

Boards of trustees: The opinion described the trustee position as uncompensated and therefore outside the constitutional ban on holding more than one office of emolument.

Common questions

Does the constitution's dual-office ban stop a principal from being a trustee?
No. The opinion explained that article XVI, section 40 only bars holding more than one civil office of emolument, and a school board trustee serves without compensation, so the ban does not apply.

Is a principal a public officer?
No, according to the opinion. A public officer exercises a sovereign function largely independent of others' control, while a principal works under the superintendent's supervision, so a principal is not an officer.

Why does it matter who employs the principal?
Because the self-appointment and self-employment branches of incompatibility turn on one position supervising or employing the other. The principal worked for Floresville ISD, not the Nixon-Smiley district whose board he sought, so those branches did not apply.

Could the answer change?
Yes. The opinion stressed that if the cooperative contract gave the participating districts supervisory authority over the DAEP campus, its conclusion could change.

Background and statutory framework

Article XVI, section 40 bars holding more than one civil office of emolument (Tex. Const. art. XVI, § 40(a)), but a trustee serves without compensation (Tex. Educ. Code Ann. § 11.061(d) (Vernon 2006); State ex rel. Hill v. Pirtle, 887 S.W.2d 921, 931 (Tex. Crim. App. 1994); see id. § 13.155(a), (d) (Vernon 2006)), so an "emolument" (a pecuniary profit) is absent and the provision does not apply (there being no distinction between civil and public office, Tilley v. Rogers, 405 S.W.2d 220, 224 (Tex. Civ. App.-Beaumont 1966, writ ref'd n.r.e.)).

The incompatibility doctrine's self-appointment and self-employment branches turn on one position appointing or supervising the other, but a district employs its own principals (id. § 21.002(a) (Vernon 2006)), and Nixon-Smiley did not employ the Floresville ISD principal. The conflicting-loyalties branch applies only when both positions are offices, and an officer exercises a sovereign function largely independent of others' control (Aldine Indep. Sch. Dist. v. Standley, 280 S.W.2d 578, 583 (Tex. 1955)); a principal works under the superintendent's supervision (id. § 11.202(b)(4), (7) (Vernon 2006); Pena v. Rio Grande City Consol. Indep. Sch. Dist., 616 S.W.2d 658, 659-60 (Tex. Civ. App.-Eastland 1981, no writ)) and so is not an officer. The DAEP cooperative is authorized by statute (id. §§ 37.006 (Vernon 2006), 37.008(a) (Vernon Supp. 2008), 37.008(d)), and the opinion noted its conclusion could change if the contract gave participating districts supervisory authority over the campus.

Citations

Statutes and constitutional provisions:

• Tex. Const. art. XVI, § 40(a)
• Tex. Educ. Code Ann. §§ 11.061(d), 11.202(b)(4), (7), 13.155(a), (d), 21.002(a), 37.006, 37.008(d) (Vernon 2006); 37.008(a) (Vernon Supp. 2008)

Cases:

• State ex rel. Hill v. Pirtle, 887 S.W.2d 921 (Tex. Crim. App. 1994)
• Tilley v. Rogers, 405 S.W.2d 220 (Tex. Civ. App.-Beaumont 1966, writ ref'd n.r.e.)
• Aldine Indep. Sch. Dist. v. Standley, 280 S.W.2d 578 (Tex. 1955)
• Pena v. Rio Grande City Consol. Indep. Sch. Dist., 616 S.W.2d 658 (Tex. Civ. App.-Eastland 1981, no writ)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0738
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2009/ga0738.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

September 3, 2009

The Honorable Edmund Kuempel
Chair, Committee on Licensing & Administrative Procedures
Texas House of Representatives
Post Office Box 2910
Austin, Texas 78768-2910

Opinion No. GA-0738

Re: Whether an individual may simultaneously serve as a member of a school district board of trustees and as a principal of a disciplinary alternative program that serves several school districts (RQ-0788-GA)

Dear Representative Kuempel:

You ask whether "an individual [may] serve as a principal of a disciplinary alternative education program ("DAEP") campus that serves several school districts as part of a cooperative arrangement while simultaneously serving on the board of trustees of a member district[.]"[1] You explain that the individual about whom you ask is the principal of a campus within the Floresville Independent School District ("Floresville ISD") that, through a cooperative arrangement, serves as a disciplinary alternative education program[2] campus for several school districts. See Request Letter at 2. You explain further that the Nixon-Smiley Consolidated Independent School District ("Nixon-Smiley CISD") is one of the school districts participating in the cooperative. See id. You tell us that the principal of the DAEP campus in the Floresville ISD resides in the Nixon-Smiley CISD and wishes to run for a place on the Nixon-Smiley CISD Board of Trustees. See id. at 1.

You do not provide the contract governing the cooperative arrangement between the school districts, nor do you provide information about any of its specific provisions. See id. at 1-3. Thus, our opinion is limited to the facts as you provide them. You tell us that the Nixon-Smiley CISD Board of Trustees votes on the contract governing its participation in the cooperative but does not have an employment contract with the principal of the DAEP campus. See id. at 2. You also inform us that the principal's employment contract is with the Floresville ISD and that, while some Nixon-Smiley CISD employees work directly with the principal, no one from the Nixon-Smiley CISD evaluates or supervises the principal.[3] See id. Absent any information from the contract, and because by statute a school district appoints and employs its own principals, we assume that the Nixon-Smiley CISD has no authority to employ the DAEP campus principal. See TEX. EDUC. CODE ANN. § 21.002(a) (Vernon 2006) (providing that a school district employs its principals). You do, however, note that "[a]s in any school setting, circumstances such as disciplinary appeals or other parent or student complaints could arise to bring the actions or decisions of the DAEP campus principal into question by the Nixon-Smiley CISD Administration or the Board of Trustees." Request Letter at 2. With this background you present your query concerned specifically about the provisions of article XVI, section 40, Texas Constitution, and the common-law doctrine of incompatibility.

Article XVI, section 40, provides, in relevant part, that "[n]o person shall hold or exercise at the same time, more than one civil office of emolument."[4] TEX. CONST. art. XVI, § 40(a). The office of school board trustee is not a civil "office of emolument" under article XVI, section 40, because it is an uncompensated position. See TEX. EDUC. CODE ANN. § 11.061(d) (Vernon 2006) ("The trustees serve without compensation."); State ex rel. Hill v. Pirtle, 887 S.W.2d 921, 931 (Tex. Crim. App. 1994) ("An 'emolument' is a pecuniary profit, gain, or advantage."); see also TEX. EDUC. CODE ANN. § 13.155(a), (d) (Vernon 2006) (providing that a "consolidated district is an independent school district" and that the "powers, duties, and terms of office of the trustees are governed by Chapter 11"); Tex. Att'y Gen. Op. Nos. GA-0224 (2004) at 1, LA-114 (1975) at 2. Thus, article XVI, section 40, is not implicated here and does not serve as a bar in the circumstances you describe.

The common-law doctrine of incompatibility generally prohibits a person from holding two positions where one might impose its policies on the other or subject it to control in some other way. Tex. Att'y Gen. Op. No. JM-129 (1984) at 1. There are three aspects to the doctrine of incompatibility: self-appointment, self-employment, and conflicting loyalties. See Tex. Att'y Gen. Op. No. GA-0224 (2004) at 2. The self-appointment aspect prohibits "an individual from 'appointing himself to another public position.'" Tex. Att'y Gen. Op. No. GA-0688 (2009) at 1 (quoting Tex. Att'y Gen. Op. No. GA-0488 (2006) at 2). The self-employment aspect, "which derives from the self-appointment aspect of incompatibility, prevents one person from holding an office and an employment that the office supervises." Tex. Att'y Gen. Op. No. GA-0214 (2004) at 3. The fundamental consideration under the self-employment aspect is the supervision of the subordinate employment by the office. Tex. Att'y Gen. Op. Nos. GA-0536 (2007) at 4, JC-0371 (2001) at 2-3. Considering the circumstances you describe and our assumption based on statutes concerning the authority of the Nixon-Smiley CISD Board of Trustees over the Floresville ISD campus principal, we do not see that the Nixon-Smiley CISD appoints or employs the DAEP campus principal in the Floresville ISD. See TEX. EDUC. CODE ANN. § 21.002(a) (Vernon 2006) (providing that a school district employs its principals); Tex. Att'y Gen. Op. No. DM-55 (1991) at 3 (A school board member's "employment by a different [school] district would not put him in the position of working for himself"); supra note 3; see also Tex. Att'y Gen. Op. No. GA-0688 (2009) at 1 (stating that "[b]ecause neither the police chief nor the city council appoints or employs the other, the self-appointment and self-employment strands ... are not applicable"). Accordingly, we conclude that the self-appointment and self-employment aspects are not applicable here. However, should the cooperative contract provide the participating school districts with supervisory authority over the DAEP campus, our opinion could change.

The conflicting loyalties aspect applies only when the two positions are "offices." Tex. Att'y Gen. Op. No. GA-0402 (2006) at 1-2 (citing Thomas v. Abernathy County Line Indep. Sch. Dist., 290 S.W. 152, 152-53 (Tex. Comm'n App. 1927, judgm't adopted)); see also Tex. Att'y Gen. Op. Nos. GA-0214 (2004) at 3-4, GA-0127 (2003) at 3. "[T]he determining factor which distinguishes a public officer from an employee is whether any sovereign function of the government is conferred upon the individual to be exercised by him for the benefit of the public largely independent of the control of others." Aldine Indep. Sch. Dist. v. Standley, 280 S.W.2d 578, 583 (Tex. 1955) (quoting Dunbar v. Brazoria County, 224 S.W.2d 738, 740 (Tex. Civ. App.-Galveston 1949, writ ref'd), disapproved on other grounds, Nat'l Sur. Corp. v. Friendswood Indep. Sch. Dist., 433 S.W.2d 690, 693-94 (Tex. 1968)). This office has opined that a person is not ordinarily an officer if his or her actions are subject to control by another because the person cannot be said to exercise authority "largely independent of the control of others." Tex. Att'y Gen. Op. No. GA-0688 (2009) at 2 (citing Tex. Att'y Gen. Op. No. GA-0538 (2007) at 2); see also Tex. Att'y Gen. Op. No. GA-0393 (2006) at 3-4. Using similar reasoning, a Texas court of appeals has determined that a school superintendent is not an officer because a school superintendent reports to a board of trustees. See Pena v. Rio Grande City Consol. Indep. Sch. Dist., 616 S.W.2d 658, 659-60 (Tex. Civ. App.-Eastland 1981, no writ) ("A school superintendent merely performs functions delegated to him by the trustees who do not by such delegation abdicate their statutory authority or control."). In much the same way, a school principal works under the supervision of the school district superintendent. See, e.g., TEX. EDUC. CODE ANN. § 11.202(b)(4), (7) (Vernon 2006); see also Tex. Att'y Gen. Op. No. DM-132 (1992) at 6 ("We believe that the principal is, therefore, not a public officer [under Aldine] for purposes of the nepotism statutes."). Because a school principal is subject to direction from the superintendent and does not act "largely independent of the control of others," we conclude a school principal is not an officer under Aldine. Therefore, the conflicting loyalties aspect of incompatibility does not preclude the dual service about which you ask.

In sum, we conclude under the facts as presented in your request that neither article XVI, section 40, Texas Constitution, nor the common-law doctrine of incompatibility prohibits an individual from serving as a principal of a disciplinary alternative education program campus that serves several school districts as part of a cooperative arrangement while simultaneously serving on the board of trustees of a member district.

SUMMARY

In the particular circumstances you provide, neither article XVI, section 40, Texas Constitution, nor the common-law doctrine of incompatibility prohibits an individual from simultaneously serving as a principal of a disciplinary alternative education program campus that serves several school districts as part of a cooperative arrangement while simultaneously serving on the board of trustees of a member district. This opinion could change under different circumstances wherein the participating school districts had supervisory authority over the disciplinary alternative education program campus.

Very truly yours,

ANDREW WEBER
First Assistant Attorney General

JONATHAN K. FRELS
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Charlotte M. Harper
Assistant Attorney General, Opinion Committee

[Footnote 1: See Request Letter at 3 (available at http://www.texasattorneygeneral.gov).]

[Footnote 2: The Education Code requires each school district to provide a disciplinary alternative education program and authorizes, and sometimes requires, a student engaging in specified conduct to be removed from class and placed in a DAEP. See, e.g., TEX. EDUC. CODE ANN. §§ 37.006 (Vernon 2006) (requiring and authorizing removal of student for certain conduct), 37.008(a) (Vernon Supp. 2008) (requiring each school district to provide a DAEP). The Education Code authorizes school districts to provide a DAEP jointly with one or more other districts. See id. § 37.008(d). We find, however, no statute, case law, or administrative rule that fully details the relationship between districts that provide a DAEP jointly.]

[Footnote 3: We accept the facts that you have submitted as true. See Tex. Att'y Gen. Op. No. JM-682 (1987) at 2 (stating this office makes no findings of fact and "merely accept as true the facts" presented in the request letter). In the event the cooperative contract between the school districts provides that the participating schools have supervisory authority over the DAEP campus, our opinion could change.]

[Footnote 4: There is no longer any distinction between a civil office and a public office. See Tilley v. Rogers, 405 S.W.2d 220, 224 (Tex. Civ. App.-Beaumont 1966, writ ref'd n.r.e.) ("We see no difference in the meaning of public office and civil office."); see also Tex. Att'y Gen. Op. Nos. GA-0214 (2004) at 2, JM-480 (1986) at 1, MW-415 (1981) at 2 (term "civil office" used interchangeably with "public office").]