Can a Texas school teacher also be a paid county commissioner?

Texas AG Opinion JC-0074: A Teacher May Serve as a Paid County Commissioner

Plain-English summary

A state representative who chaired the House Higher Education Committee and the Kleberg County Attorney asked the Attorney General the same question: can a public school teacher or administrator serve as a county commissioner and still collect the salary that comes with the commissioner's seat? The opinion concluded she can.

The starting point is article XVI, section 40 of the Texas Constitution, the dual-office-holding provision. It generally bars a person from holding more than one "civil office of emolument" at the same time, but it specifically exempts county commissioners (and justices of the peace). And under settled law, a public school teacher or administrator is not an "officer" at all. So the basic ban does not apply.

There is a separate proviso in section 40 aimed at people who are not officers but who are paid from state funds. It says state employees and others compensated from state funds may serve on the governing bodies of school districts, cities, towns, "or other local governmental districts," but may not draw a salary for that governing-body service. A teacher is paid partly from state funds, so this proviso could apply. The key was a 1995 San Antonio Court of Appeals decision, County of Maverick v. Ruiz, holding that a county is not a "local governmental district" under that proviso. Because a county is not covered, the no-salary rule does not reach a county commissioner's pay. The opinion concluded the teacher may keep the commissioner's salary.

The opinion then cleaned up its own back catalog. A 1973 opinion, H-6, had reached the opposite conclusion: it assumed a county was a "local governmental district" (so the teacher could serve but not be paid) and also rested partly on the separation-of-powers provision, article II, section 1. The court in County of Maverick rejected the "local governmental district" assumption, and both the courts and the Attorney General's office had long since abandoned using article II, section 1 to resolve ordinary dual-office questions. So the opinion expressly overruled H-6. It added one caution: section 40 does not affirmatively authorize a commissioner to hold a second salaried job; it just exempts a commissioner from the prohibition that applies to other officers.

Currency note

This opinion was issued in 1999. 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.

Common questions

Could a Texas teacher serve as a county commissioner and get paid for it?
According to this opinion, yes. A public school teacher or administrator could hold the office of county commissioner at the same time and keep the salary attached to that office, without renouncing it.

Doesn't the constitution ban holding two offices at once?
Article XVI, section 40 generally bars holding more than one civil office of emolument, but it expressly exempts county commissioners and justices of the peace. On top of that, a public school teacher or administrator is not considered an "officer" for that provision, so the basic ban does not apply to the teaching position.

What about the rule that state-paid employees can't be paid for local board service?
That rule comes from a proviso in section 40 covering people paid from state funds who serve on the governing bodies of school districts, cities, towns, or other local governmental districts. The opinion relied on County of Maverick v. Ruiz, which held a county is not a "local governmental district" under the proviso, so the no-salary rule did not apply to a county commissioner's pay.

What happened to the older opinion that said the teacher couldn't be paid?
The opinion overruled Attorney General Opinion H-6 (1973). H-6 had assumed a county was a "local governmental district" (an assumption County of Maverick rejected) and had also leaned on the separation-of-powers provision, a basis the courts and the Attorney General had since abandoned for ordinary dual-office questions.

Does this mean a county commissioner can take any second salaried job?
No. The opinion cautioned that section 40 does not affirmatively authorize a commissioner to hold a second salaried position. It only exempts a commissioner from the prohibition that applies to other officers; other legal limits could still apply to a given second position.

Background and statutory framework

Article XVI, section 40 of the Texas Constitution provides in relevant part that "No person shall hold or exercise at the same time, more than one civil office of emolument, except that of Justice of the Peace [or] County Commissioner." Its proviso adds that "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; provided, however, that such State employees or other individuals shall receive no salary for serving as members of such governing bodies."

The opinion relied on Ruiz v. State, a Corpus Christi Court of Civil Appeals decision holding a public school teacher or administrator is not an "officer" for purposes of the amendment, and on County of Maverick v. Ruiz, a San Antonio Court of Appeals decision holding a county is not a "local governmental district" under the proviso. It noted that earlier Attorney General Opinion JM-118 (1983) had read the proviso to require a state employee on a covered local board to renounce compensation, but the county-specific holding in County of Maverick controlled here.

On the separation-of-powers point, the opinion explained that H-6 (1973) had reasoned a county commissioner was in the judicial branch and a teacher in the executive branch, so article II, section 1 barred the combination absent the proviso. The opinion said that use of article II, section 1 in ordinary dual-office matters had long been abandoned, citing Turner v. Trinity Independent School District, a Houston Court of Appeals decision allowing a school trustee to also serve as justice of the peace, along with Attorney General Opinion JM-519 (1986) and Letter Opinions LO-92-004 and LO-88-019. It also addressed the argument that County of Maverick should not control because Kleberg County lies outside the San Antonio court's jurisdiction, responding that the Attorney General in the opinion process cannot ignore reported appellate interpretations of Texas law, even if a district court might consider the point.

Citations

Constitutional provisions:

• Tex. Const. art. XVI, § 40
• Tex. Const. art. II, § 1

Cases:

• Ruiz v. State, 540 S.W.2d 809 (Tex. Civ. App.-Corpus Christi 1976, no writ)
• County of Maverick v. Ruiz, 897 S.W.2d 843 (Tex. App.-San Antonio 1995, no writ)
• Turner v. Trinity Indep. Sch. Dist., 700 S.W.2d 1 (Tex. App.-Houston [14th Dist.] 1983, no writ)

Attorney General opinions referenced: H-6 (1973) (overruled); JM-118 (1983); JM-519 (1986); LO-92-004; LO-88-019.

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/john-cornyn/jc-0074
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1999/jc0074.pdf

Original opinion text

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

OFFICE OF THE ATTORNEY GENERAL STATE OF TEXAS

JOHN CORNYN

July 6, 1999

The Honorable Irma Rangel
Chair, Committee on Higher Education
Texas House of Representatives
P.O. Box 2910
Austin, Texas 78768-2910

The Honorable Delma Rios
Kleberg County Attorney
P.O. Box 1411
Kingsville, Texas 78364

Opinion No. JC-0074

Re: Whether a public school employee may simultaneously serve as a county commissioner and draw a salary therefor (RQ-0011)

Dear Representative Rangel and Ms. Rios:

You have requested our opinion as to whether a public school teacher or administrator may simultaneously serve as a county commissioner and draw a salary therefor. We conclude that she may do so.

Article XVI, section 40 of the Texas Constitution provides in relevant part: "No person shall hold, or exercise at the same time, more than one civil office of emolument, except that of Justice of the Peace [or] County Commissioner. . . ." At first glance, it might appear that the above-quoted provision answers your question. In the first place, county commissioners are exempted from its prohibition. Furthermore, a public school teacher or administrator is not an "officer" for purposes of the amendment. Ruiz v. State, 540 S.W.2d 809, 811 (Tex. Civ. App.-Corpus Christi 1976, no writ).

Article XVI, section 40, however, by operation of the following proviso, is applicable to certain persons who are not "officers":

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; provided, however, that such State employees or other individuals shall receive no salary for serving as members of such governing bodies.

A public school teacher or administrator receives part of her compensation from state funds and is therefore subject to the proviso. Consequently, she may serve on a local governing board only if she renounces any compensation attached to the service. Tex. Att'y Gen. Op. No. JM-118 (1983). In County of Maverick v. Ruiz, 897 S.W.2d 843 (Tex. App.-San Antonio, 1995, no writ), however, the court held that a county did not constitute a "local governmental district" under the article XVI, section 40 proviso. As a result, the court declared, a teacher who serves as a county commissioner is not prohibited from receiving a salary for the latter position.

Ms. Rios also asks about the continuing validity of Attorney General Opinion H-6 (1973). In that opinion, this office addressed a situation identical to the one you pose: whether a public school or junior college instructor could validly serve as a county commissioner and receive the salary attached to the latter position. The opinion concluded, first, that, since a county commissioner was a member of the judicial branch of government, and a teacher a member of the executive branch, such service, in the absence of the newly-added "state employee" proviso, was barred by article II, section 1 of the Texas Constitution—the separation of powers provision. Because of the proviso, however, the individual at issue was permitted to serve as commissioner, but could not receive a salary for doing so. The opinion simply assumed without explicitly so finding that a county was a "local governmental district."

The implicit conclusion of Attorney General Opinion H-6—that a county is a "local governmental district"—has been rejected by County of Maverick. The explicit conclusion—that article II, section 1 ordinarily plays a role in dual-office-holding matters—has long been abandoned, both by the courts and by this office. See Turner v. Trinity Indep. Sch. Dist., 700 S.W.2d 1 (Tex. App.-Houston [14th Dist.] 1983, no writ) (school trustee may also serve as justice of the peace); Tex. Att'y Gen. Op. No. JM-519 (1986); Tex. Att'y Gen. LO-92-004, LO-88-019. Ms. Rios's brief suggests that County of Maverick does not control because Kleberg County is not within the jurisdiction of the San Antonio Court of Appeals. While such an argument might be considered by a district court, the attorney general, in the opinion process, cannot ignore reported judicial interpretations of law from this state's appellate courts.

It is therefore our opinion that a public school teacher or administrator may simultaneously serve as a county commissioner without renouncing the salary attached to the latter position. Attorney General Opinion H-6 (1973) is overruled. We note, however, that article XVI, section 40 does not affirmatively authorize a county commissioner to hold a second salaried position; it merely exempts a commissioner from the prohibition applicable to other officers.

SUMMARY

A public school teacher or administrator may simultaneously hold the office of county commissioner without renouncing the salary attached to the latter position. Attorney General Opinion H-6 (1973) is overruled.

JOHN CORNYN
Attorney General of Texas

ANDY TAYLOR
First Assistant Attorney General

CLARK KENT ERVIN
Deputy Attorney General - General Counsel

ELIZABETH ROBINSON
Chair, Opinion Committee

Prepared by Rick Gilpin
Assistant Attorney General