Can a Texas school employee who serves on the city council be paid for council service?

Plain-English summary

The Texas Constitution lets many state-paid employees also serve on local governing bodies, but it limits when they can be paid for that second role. A district attorney asked the AG whether three employees of the Eagle Pass Independent School District, who serve on the city council, could receive compensation for their council service. The three were a counselor, an assistant principal, and a special education coordinator.

The AG started with Article XVI, section 40(b)(1) of the Texas Constitution. That provision says state employees who are not state officers may serve on the governing bodies of school districts, cities, towns, and other local districts, but generally may not receive a salary for that service. It carves out an exception: a schoolteacher, retired schoolteacher, or retired school administrator may be compensated for serving on such a body. Because public school district employees are paid in whole or part from state funds, they fall under section 40(b), so a current school district employee cannot be paid for council service unless the person qualifies as a "schoolteacher."

The AG explained that no Texas court has decided which school employees count as a "schoolteacher" for this exception, and that a prior opinion (GA-0530) defined the term as someone employed to instruct students in a school setting in a way that lets participants earn curriculum credit. Whether a particular employee fits is generally a question of fact that the opinion process cannot resolve. Still, the AG looked at the job descriptions provided. The assistant principal and special education coordinator descriptions listed no teaching responsibilities, so, assuming the descriptions were accurate, the constitution would bar paying those two for council service. The counselor's description, by contrast, included teaching the campus developmental guidance curriculum and collaborating with teachers, and Education Code provisions describe the counselor delivering classroom guidance activities. So the AG concluded the counselor could qualify as a schoolteacher, depending on whether the employee directly instructs students in required curriculum.

Currency note

This opinion was issued in 2018. 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.

What the opinion meant for those who asked

The district attorney who requested the opinion: The AG concluded that Article XVI, section 40(b)(1) bars a current school district employee, other than a schoolteacher, from receiving a salary for city council service, and that whether each of the three named employees is a schoolteacher is generally a fact question outside the opinion process. On the limited facts, the AG noted a court would likely find the assistant principal and special education coordinator are not schoolteachers, while the counselor could be.

School district employees who hold local office (as the opinion described their position): The opinion explained that they may serve on a city council but cannot be paid for it unless they are a schoolteacher, and that the schoolteacher determination turns on whether the person directly instructs students in required curriculum.

Cities paying council stipends (as described in the opinion): The opinion assumed the $10-per-month payment was salary rather than expense reimbursement, noting that reimbursement of actual expenses does not count as salary under section 40(b)(1).

Common questions

Can a teacher who is also on the city council get paid for the council seat?
Yes, the AG explained. Article XVI, section 40(b)(1) expressly lets a schoolteacher (and a retired schoolteacher or retired school administrator) be compensated for serving on a city council or similar body.

What about a school counselor, assistant principal, or coordinator?
The AG concluded that whether each qualifies as a schoolteacher is a fact question it could not decide, but on the job descriptions provided, the assistant principal and special education coordinator likely do not qualify because they have no teaching duties, while the counselor could qualify if they directly instruct students.

Who decides whether someone is a 'schoolteacher' here?
The AG described that as generally a question of fact that cannot be determined in the opinion process, leaving it to be resolved on the actual duties and, if disputed, by a court.

Does a small monthly stipend count as a salary?
The AG assumed the $10-per-month council payment was salary, while noting that a true reimbursement of actual expenses is not salary under section 40(b)(1).

Background and statutory framework

Article XVI, section 40(b) lets state-compensated non-officer employees serve on the governing bodies of school districts, cities, towns, and other local districts, but bars them from receiving a salary for that service except that a schoolteacher, retired schoolteacher, or retired school administrator may be compensated (Tex. Const. art. XVI, § 40(b)(1)). Public school district employees receive state funds and so are subject to section 40(b) (Tex. Att'y Gen. Op. No. GA-0530 (2007)). Whether an individual is a "schoolteacher" depends on whether the person instructs students in a school setting for curriculum credit, and that is generally a fact question outside the opinion process; a school police chief with no teaching duties was not a schoolteacher (Tex. Att'y Gen. Op. No. GA-0874 (2011)). A school counselor plans and implements a developmental guidance and counseling program, may deliver classroom guidance activities or consult with teachers, and the enrichment curriculum includes career education (Tex. Educ. Code §§ 33.005(1), 33.006(b)(6), 28.002(a)(2)(E)).

Citations

Statutory provisions:

• Tex. Const. art. XVI, § 40(b)(1)
• Tex. Educ. Code §§ 28.002(a)(2)(E), 33.005(1), 33.006(b)(6)

Attorney General opinions:

• Tex. Att'y Gen. Op. No. GA-0530 (2007)
• Tex. Att'y Gen. Op. No. GA-0874 (2011)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/ken-paxton/kp-0211
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2018/kp0211.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts were corrected; the linked PDF is authoritative.

KEN PAXTON
ATTORNEY GENERAL OF TEXAS

August 13, 2018

The Honorable Roberto Serna Opinion No. KP-0211
District Attorney
293rd Judicial District Re: Whether city council members also
458 Madison Street employed by an independent school district
Eagle Pass, Texas 78852 may receive compensation for their service on
the city council (RQ-0213-KP)

Dear Mr. Serna:

    You ask whether three employees of the Eagle Pass Independent School District

("District") are eligible under the Texas Constitution to receive compensation for service on the
city council. [1] Article XVI, subsection 40(b)(1) of the Texas Constitution provides:

            (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 ....

TEX. CONST. art. XVI, § 40(b)(1) (emphases added). This constitutional provision permits a state-
compensated employee of a public school district to also serve as a member of the city council.
Id.; see Tex. Att'y Gen. Op. No. GA-0530 (2007) at 2-3 ("Employees of public school districts
... receive all or part of their compensation either directly or indirectly from funds of the State of
Texas and thus are subject to article XVI, section 40(b)." (quotation marks omitted)). The
provision, however, prohibits a current school district employee from receiving a salary for serving
on the city council unless the individual is a "schoolteacher." TEX. CONST. art. XVI, § 40(b)(1). [2]

    We have found no Texas court decisions considering which school district employees

qualify as a "schoolteacher" for purposes of this exception. In a previous opinion, this office
concluded that "[w]hether a particular individual who receives compensation from the State ... is
a schoolteacher for purposes of article XVI, section 40 ... depends upon whether the individual is
employed to instruct students in a school setting ... as a result of which participants may receive
credit toward fulfilling their curriculum requirements." Tex. Att'y Gen. Op. No. GA-0530 (2007)
at 5. You inquire about three public school employees who currently serve the District in the roles
of (1) counselor; (2) assistant principal; and (3) special education coordinator. Request Letter at 2.
Whether a particular employee qualifies as a "schoolteacher" is generally a "question of fact that
cannot be determined in the opinion process." Tex. Att'y Gen. Op. No. GA-0530 (2007) at 5.
However, we note that the job descriptions you provided for the positions of assistant principal
and special education coordinator do not include any teaching responsibilities. See Attachments
at 1-6. Thus, assuming that accurately reflects their employment, the constitution would prohibit
these individuals from receiving compensation for their service on the city council. [3] See Tex.
Att'y Gen. Op. No. GA-0530 (2007) at 5; see also Tex. Att'y Gen. Op. No. GA-0874 (2011) at 2
(concluding that school district's chief of police was not a schoolteacher because he had no
teaching responsibilities).

    The job description you provided for the counselor states that a responsibility of this

position is to "[t]each campus developmental guidance curriculum" and "[c]ollaborate with
teachers who teach the guidance-related curriculum." Attachments at 7. Section 33.005 of the
Education Code requires a school counselor to plan and implement a developmental guidance and
counseling program, which includes "a guidance curriculum to help students develop their full
educational potential." TEX. EDUC. CODE § 33.005(1); [4] see also id. § 28.002(a)(2)(E) (requiring
school districts to offer an enrichment curriculum that includes career education). To implement
the developmental guidance curriculum, section 33.006 provides that the school counselor may
either "deliver classroom guidance activities or serve as a consultant to teachers conducting lessons
based on the school's guidance curriculum." Id. § 33.006(b)(6); see also TEX. EDUC. AGENCY, A
MODEL COMPREHENSIVE, DEVELOPMENTAL GUIDANCE AND COUNSELING PROGRAM FOR TEXAS
PUBLIC SCHOOLS 19 (2004) (stating that school counselors "may teach all or some of the
[guidance] curriculum through direct instruction" or "consult with teachers who integrate the
curriculum with other curricula"). Thus, based on the information you provided, the counselor
could qualify as a "schoolteacher" for purposes of article XVI, subsection 40(b)(1), depending on
whether the employee directly instructs students in required curriculum.

                                 SUMMARY

                  Article XVI, subsection 40(b)(1) of the Texas Constitution
          prohibits current school district employees, other than
          schoolteachers, from receiving a salary for service on the city
          council.

                  Whether a particular employee qualifies as a schoolteacher
          is generally a question of fact outside the scope of an attorney
          general opinion. Based on the limited facts provided, a court would
          likely conclude that the assistant principal and special education
          coordinator are not schoolteachers. A court could conclude that the
          counselor is a schoolteacher depending on whether the employee
          directly instructs students in required curriculum.

                                       Very truly yours,

                                       KEN PAXTON
                                       Attorney General of Texas

JEFFREY C. MATEER
First Assistant Attorney General

BRANTLEY STARR
Deputy First Assistant Attorney General

VIRGINIA K. HOELSCHER
Chair, Opinion Committee

ASHLEY FRANKLIN
Assistant Attorney General, Opinion Committee

[1] See Letter and Attachments from Honorable Roberto Serna, Dist. Att'y, 293rd Judicial Dist., to Honorable Ken Paxton, Tex. Att'y Gen. at 1-2 (Feb. 7, 2018), https://www.texasattorneygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter" and "Attachments") (Attachments on file with the Op. Comm.).

[2] You ask about current employees. Request Letter at 2. Article XVI, subsection 40(b)(1) also permits a "retired schoolteacher" or "retired school administrator" to receive compensation for city council service. TEX. CONST. art. XVI, § 40(b)(1).

[3] You tell us the council members "currently receive compensation of $10.00 per month, as per the City Charter." Request Letter at 2. We assume the funds constitute salary and not merely the reimbursement of actual expenses. See Tex. Att'y Gen. Op. No. GA-0530 (2007) at 6 (providing that a "reimbursement of expenses does not constitute salary" for purposes of article XVI, section 40(b)(1) (quotation marks omitted)).

[4] According to the Texas Education Agency, the purpose of the developmental guidance curriculum "is to help all students develop basic life skills." TEX. EDUC. AGENCY, A MODEL COMPREHENSIVE, DEVELOPMENTAL GUIDANCE AND COUNSELING PROGRAM FOR TEXAS PUBLIC SCHOOLS 18 (2004), available at https://tea.texas.gov/counseling_guidebook.html. The curriculum includes instruction in areas such as developing self-confidence, communication skills, and responsible behavior. Id.