February 7, 1973

Honorable Bevington Reed Commissioner, Coordinating Board Texas College and University System P. 0. Box 12788. Capitol.Station Austin, Texas 78711 Opinion No. H- 6 Re: Whether a teacher, instructor or professor may serve and draw salary as amember of the Ector County Commissioners Court at the same time he teaches either fulltime **or** part-time
Dear Dr. Reed: for Odessa College and draws a salary for his service there. You have inquired as towhether a teacher, instructor or professor may serve and draw salary as a member of the Ector County Commissioners **Court** at the same time he teaches either full-time or parttime for Odessa College.and draws a salary for his service there. Odessa College is ajunior college operated pursuant to the provisions of the Texas Education Code, Sections 130.001. et seq. As such it is an educational agency of the State andits teachers, instructors, and professors are ‘Qadividuals who receive all or part of’their comepnsatioti either directly or indirectly from State funds”
.

. .,. It is unnecessary to determine whether “teachers. instructors, and professors” at Odessa College are persons who occupy civil offides of emolument as used in the first sentence **of** Section 40 of Article 16 **of** the Constitution of Texas, since county commissioners **are** expressly excepted’from the restrictions imposed by that sentence. The first sentence ofArticle 16.’ Section 40, however, does not operate as an exemption of county commissioners from the separation of powers command of Article 2, Section 1of the Constitution of Texas which provides:Dr. Bevington Reed, page 2, (H-6)

“The powers ofthe Government ofthe State ofTexas shall be divided into three distinct departments, each ofwhich shall be confided to a separate body of magistracy, towit: Those which are Legislative to one; those which are Executive toanother, those which are Judicial toanother; andnoperson, or collection of persons, being ofone ofthese departments, shall exercise any power properly attached to either ofthe others, except inthe instances herein expressly permitted. ” Ithas been said that an executive officer ofthe state is one whose duties are to cause the laws to be e~:xc uted and obeyed and that offices ofthe executive department of the state are those whose duties are to execute the laws coextensive withthe state. Texas Liquor Control Board v. Continental Distilling Sales Co., 199 S. **W.** 2d 1009 (Tex. Civ. App., Dallas, 1947. error ref. n.r’
.e.). See also Willis v. Owen, 43 Tex. 41(1875). Article 5, Section 1ofthe Constitution ofTexas provides, inpart:

“The judicial power of this State shall be vested in one Supreme Court,
. . . inCommissioners Courts.
. . and in such other courts as may be provided by law.
. . .” To the extent that the Constitution may also confer upon members of a commissioners court certain executive functions (see. for instance, Article 9, Section 3of the Constitution of Texas). they fall within the

“except inthe instances herein expressly permitted” provision of Article 2. Section 1. They are not, however, excepted from the provisions of that section while acting as agent ofa separate executive body. It could be argued that teachers do not, within the meaning of Article 2, Section 1, exercise any power attached tothe executive department ofthe government; 

### that, rather, they merely discharge

-21-Dr. Bevington Reed. page 3, W-6)

a function of the executive without exercising any discretion andthat, therefore, they wouldbe no threat to the proper balance of government. This argument is particularly forceful when no compensation is involved inone position andthe coercive effect of economic dependence would not influence the discharge of duties. Section 40 ofArticle 16recognizes the importance of this consideration by granting limited exemption from the”strictures ofthe separation of powers clause to certain persons, conditioned upontheir renunciation of salary for thelocal governmental position. But the distinction between the exercise of a governmental w andthe exercise of a function implementing thatpower is often more apparent than **r&l.** Saint v. Allen, 126 So. 548 (La., 1930); State v. Burch, 86 N. E. 2d 294 (Ind. , 1948); Monaghan v. School Dist. No. 1, Clackamas County, 315P. 2d 797 (Ore. 1957). Itis our opinion, therefore, that a teacher, instructor, or professor employed by a public institution of learning “being of“ the executive department within the meaning of Article 2, Section 1ofthe Constitution ofTexas, may not’at the same time validly hold theoffice of county commissioner except by qualifying under the language added to Section 40 of Article 16by the 1972 amendments: “State employees or other individuals who receive all or part of their compensation either directly or indirectly from funds of theState of Texas andwho are not State officers, shall not be barred from serving as members ofthegoverningbodies of school districts, cities, towns, or other local governmental districts; provided however, that such State employees or other individuals shall receive no salary from serving as members of such governing bodies.
. . .I’ (Emphasis Added) It is our conclusion that a teacher, instructor or professor at Odessa College may serve as a member of the Ector County Commissioners Court butonly if he renounces his salary as commissioner.

-22-Dr. Bevington Reed, page 4, (H-6)

-SUMMARY - A teacher, instructor or professor whoteaches either full or part-time at aState supported junior college anddraws a salary for his services there may. serve as **a** member of a commissioners court but only ifhe renounces his salary for his services as commissioner. Very truly yours,

. **Attorney** General ofTexas APPROVED:

Firkt Assistant 

# %!

DAVID M. KENDALL, Chairman Opinion Committee

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