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 a member 

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 to whether 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 a junior 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 and its 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 of Article 16.’ Section 40, however, does not 

operate as an exemption of county commissioners from the separation 

of powers command of Article 2, Section 1 of the Constitution of Texas 

which provides: 
Dr. Bevington Reed, page 2, (H-6) 

“The powers of the Government of the State 

of Texas shall be divided into three distinct 

departments, each of which shall be confided to a 

separate body of magistracy, to wit: Those which 

are Legislative to one; those which are Executive 

to another, those which are Judicial to another; 

and no person, or collection of persons, being 

of one of these departments, shall exercise 

any power properly attached to either of the 

others, except in the instances herein expressly 

permitted. ” 

It has been said that an executive officer of the state is one 

whose duties are to cause the laws to be e~:x c uted and obeyed and 

that offices of the executive department of the state are those whose 

duties are to execute the laws coextensive with the 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 1 of the Constitution of Texas provides, in part: 

“The judicial power of this State shall be 

vested in one Supreme Court, . . . in Commissioners 

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 3 of the Constitution of Texas). they fall within the 

“except in the 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 of a separate executive 

body. 

It could be argued that teachers do not, within the meaning of 

Article 2, Section 1, exercise any power attached to the executive 

department of the government; that, rather, they merely discharge 

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

a function of the executive without exercising any discretion and that, 

therefore, they would be no threat to the proper balance of government. 

This argument is particularly forceful when no compensation is involved 

in one position and the coercive effect of economic dependence would 

not influence the discharge of duties. Section 40 of Article 16 recognizes 

the importance of this consideration by granting limited exemption 

from the”strictures of the separation of powers clause to certain persons, 

conditioned upon their renunciation of salary for the local governmental 

position. 

But the distinction between the exercise of a governmental w 

and the exercise of a function implementing that power 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, 315 P. 2d 797 (Ore. 1957). 

It is 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 1 of the Constitution 

of Texas, may not’at the same time validly hold the office of county 

commissioner except by qualifying under the language added to Section 

40 of Article 16 by the 1972 amendments: 

“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 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 but only if he renounces his salary as commissioner. 

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

-SUMMARY - 

A teacher, instructor or professor who teaches 

either full or part-time at a State supported junior 

college and draws a salary for his services there may. 

serve as a member of a commissioners court but only 

if he renounces his salary for his services as commissioner. 

Very truly yours, 

. 

Attorney General of Texas 

APPROVED: 

Firkt Assistant 

%! 

DAVID M. KENDALL, Chairman 

Opinion Committee 

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