JIM MATTOX 

Attorney General 

Supreme Court Building 

P. 0. BOX 12545 

A”s!in. TX. 78711.2543 

51214752501 

Telex 91om74.1367 

Telecopier 51214750266 

714 Jackson. Suile 700 

Dallas, TX. 75202.4506 

2141742.0944 

4824 Alberta Ave.. Suile 180 

El Paso. TX. 79905-2793 

915/533-3404 

01 Texas. Suite 7CQ 

Houston. TX. 77002.3111 

71Y223-5886 

000 Broadway. Suite 312 

Lubbock. TX. 79401.3479 

9061747-5235 

4309 N. Tenth, Suits S 

McAllsn. TX. 79501-1885 

512lSS2.4547 

2W Main Plaza. Suits 4W 

San Antonio, TX. 782052797 

512n254191 

An Equal OppOflUnilYl 

Affirmative Action Employer 

The Attome)! General of Texas 

Sept.r,mber 13, 1984 

Honorable Gibson D. (Gib) Lewis 

Speaker 

Texas House of Reprwentatives 

P. 0. Box 2910 

Austin, Texas 787t& 

Dear Speaker Lewis: 

Your 

Opinion No. JM-203 

Re: Whether certain public 

officers and employees may 

be appointed to the interim 

State Board of Education 

letter requesting an opinion from this office reads in part: 

As you know, the Legislative Education Board is 

. . . rev:lw[ing] the qualifications of individuals who:w names may be submitted to the governor 

for appoinxment to the transitional State Board of 

Education created by House Bill No. 72 from the 

recent sp~ri:lal session. 

Prior zo House Bill No. 72, officers and 

employees >f the state or a political subdivision 

of the s’:;lte were not eligible to serve on the 

State Board of Education. Educ. Code 111.22(b). 

The legislature eliminated the disqualification on 

the basi;s of employment with the state or a 

political subdivision (article I, Part B, section 

2, House Ml1 No. 72). and specifically provided’ 

that the disqualification on the basis of holding 

an offica: with the state or a political subdivision cf the state does not apply to persons 

appointed to the transitional board (article 1. 

Part 8. section 4(b), House Bill No. 72). 

Aowever, we understand that a common law 

doctrine relating to incompatible offices may 

prevent :wme persons from holding their current 

position .md membership on the State Board of 

Education at the same time, even though those 

persons are not statutorily ineligible. 

Specifically, we are concerned about the following 

categories: 

(1) p~‘11ic school professional employees who 

are cert:.j’ied under state law and State Board of 

p. 894 
Bonorable Gibson D. (Gib) Lwle - Page 2 (Jk-203) 

Education rules (this would include teachers, 

counselors, administrators, and other professional 

positions); 

(2) school district trustees; 

(3) junior college faculty and administrators; 

(4) junior college trustees; 

(5) senior co:.l.ege or university faculty and 

administrators, psrticularly those involved in 

teacher education programs; 

(6) senior college or university regents; 

(7) regional 

employees; and 

education service center 

(8) Central Mucation Agency officers and 

employees. 

As speaker of :he house and chairman of the 

Legislative Educ;azloa Board, I request your 

official opinion j,r regard to the ability of those 

persons listed above to hold both the listed 

position and membership on the State Board of 

Education. 

Aouse Bill No. 72 enacted by the second called session of the 

Sixty-eighth Legislature iwtitutes a number of reforms applicable to 

the public education system j.n Texas. Acts 1984, 68th Leg., 2nd C.S., 

ch. 28. at 269. Among the changes: the previously existing, elected 

State Board of Education Ls to be abolished and replaced by a 

transitional board of fif :t?en members to be appointed after the 

provision takes effect, 1~. when approval of the United States 

Department of Justice is obtained. The transitional board members are 

to serve until a new. electotl board takes office on January 1, 1989. 

Eouse Bill No. 72, aoxrg other things, amends section 11.22 of 

the Education Code specifyin the qualifications for membership on the 

State Board of Education. Prior to such action, subsection (b) 

thereof read as follows: 

(b) No person :$hall be eligible for election to 

or serve on the board if he holds an off ice with 

the State of Texas or any political subdivision 

thereof, or holds employment with or receives any 

compensation for ;;ervices from the state or any 

political subdivision thereof (except retirement 

benefits paid by %e State of Texas or the federal 

p. 895 
Ronorable Gibson D. (Gib) Lew:;s - Page 3 (~~-203) 

. 

government), or engages in organized public 

educational activi::r. (Emphasis added). 

House Bill No. 72 changed it ‘:o read instead: 

No person shall be eligible for election to or 

acme on the board if he holds an office with the 

State of Texas c#r any political subdivision 

thereof. 

Acts 1984, supra. at 279. 

The change makes .the :rf:atute applicable to officers only; the 

statutory restriction on the: eligibility of employees and independent 

contractors to the board has been dropped. But even with respect to 

officers, House Bill No. 72 provides in its fourth section. which 

establishes the interim board, that “Section 11.22(b), Education Code. 

as amended by this Act, dotr:s not apply to a person appointed under 

this section.” Acts 1984. WE. 54(b), at 282. 

It is clear to us that the exemption of interim board members 

from the strictures of secticn 11.22(b) of the Education Code was not 

intended to exempt them from all dual office prohibitions. 

Restrictions that prevent a ‘person f= holding more than one public 

position or office at the! same time may originate in either 

constitutional. statutory, or common law. ,See 47 Tex. Jur. 2d. Public 

Officers 5527 et seq. (1963). Article III’section 18. of the Texas 

Constitution, for instance, makes a legislator Ineligible to “any 

office or place, the appointrrent to which msy be made, In whole or in 

part. by either branch of I:he Legislature. . . .V The legislature 

could not exempt interim board members from the article III, section 

18 constitutional prohibition. and we ascribe to it no intent to do 

so. Similarly, we do not believe the legislature intended to exempt 

them from the common law bar of incompatibility.’ 

The common law doctrina! of incompatibility, briefly described, 

prevents one person from holding two offices ~if the duties are 

inconsistent or in conflict, or if one office is subordinate to the 

other. Thomas v. Abernathy County Line Independent School District, 

290 S.W. 152 (Tex. Comm’n .c~p. 1927, judgmt adopted); Kugle v. Glen 

Rose Independent School Disl:,ict No. 1. 50 S.W.2d 375 (Tex. C 

- Waco 19: 

iv. App. 

$2~) rev’d~oaocfi5r~gr~~~~ sub nom. Pruitt v. Glen Rose 

Independent School District-No . 1. 84 S.W.2d 1004 (Tex. 1935). The 

doctrine has been held to bat a public employee from holding a public 

office which appoints. supervises, and controls the employee. See 

Rhlinger v. Clark, 8 S.W.2d 666 (Tex. 1928); Attorney General Letter 

Advisory No. 114 (1975). It protects the integrity of state 

Institutions by promoting iaqartial service by public officials. 

In Attorney General Ler.:er Advisory No. 56 (1973) this office by 

implication interpreted section 11.22(b) of the Education Code as a 

p. 896 
a 

Honorable Gibson D. (Gib) Le%ds - Psg'e 4 (JM-203) 

. 

. 

bar to dual office holding tmt is separate from (and In addition to) 

the c-on law bar of incompc~tlbility, stating: 

It is our opinion, therefore, that because of the 

express provisions af $11.22(b) of the Education 

Code, and/or the .comon law doctrine of 

Incompatibility. on,: person may not serve at the 

same time as a member of the Board of Mental 

Health and Mental 3?tardation and the State Board 

of Education. 

The passage of House Bill No. 72 exhibits no intent that the statute 

now be construed otherwise. 

We think the Letter Advisory No. 56 construction of section 

11.22(b) is correct and th8.t the legislature so regarded it. The 

statute is intended to complement and extend article XVI, section 40 

of the Texas Constitution, w'l:Lch prohibits dual office holding -- but 

only with respect to offices of emolument. The former language of 

section 11.22(b) urohibited t'le simultaneous holdinn of membershiu .on . 

the State Board of Education by snother office holder whether or not 

either office was one of emol.tment. 

It is difficult to argue!., as some do, that the very existence of 

the statute indicates an intent that any common law rule regarding 

dual office holding be supers+ded. The existence of the article XVI, 

section 40 constitutional bar to dual office holding has not been 

thought to replace or invalidate the co-on law proscription against 

incompatibility, and neither should the existence of the section 

11.22(b) statutory bar, in cur opinion. It Is an additional impedlmat to the simultaneous holilng of two offices. Although House Bill 

No. 72 makes section 11.22(11:1 of the Education Code inapplicable to 

members of the transitional board, we do not think it affects the 

operability of the common 1~ doctrine. Consequently, we turn to the 

specific offices and positionr; about which you inquire. 

T]~ISTEES, REGENTS 

To determine whether the various offices and employments you name 

are incompatible with servj.ce on the board, we must examine this 

doctrine at greater length. We should state at the outset, however, 

that a court, with its power I:O receive and evaluate evidence, is in a 

better position to decide matters of incompatibility than is the 

Attorney General In issuing a legal opinion. Although we are not 

always provided sufficient j,nformation to resolve such questions, we 

can at least provide guideliuc!s to be used in resolving them. 

Texas courts have d:l:rcussed the common law doctrine of 

incompatibility only in relal::.on to officers. Opinions of this office 

and judicial decisions in o,:Iler states have. however, applied it to 

employees. The court in Thcmlas v. Abernathy County Line Independent 

-- 

p. 897 
Aonorablc Gibson D. (Mb) Lewis - Page 5 UM-203) 

School District, 290 S.W. at 1,53. made the following observation: 

[T]he offices of rlc.hool trustee and alder& are 

incompatible; for cnder our system there are in 

the city council or board of aldermen various 

directory or sup e rvlsory powers exertable in 

respect to school property located within the city 

or town and in respect to the duties of school 

trustee performable within its limits -- s, 

there might well ar:.se a conflict of discretion or 

duty in respect to health, quarantine, sanitary, 

and fire prevention regulations. See articles 

1015, 1067, 1071, R.S. 1925. If the-me person 

could be a school trustee and a member of the city 

council or board oP aldermen at the same time. 

school policies, in many important respects, would 

be subject to direc:t:ion of the council or aldermen 

Instead of to that elf the trustees. 

Another Texas court determinccl that two offices were not incompatible: 

It is quite obv:.cus from the allegations in the 

information, when :onsidered, as they must be, 

with relevant ac.d controlling statutory and 

charter provisions, that the offices of school 

trustee and city t,a:c assessor have no relation to 

each other. The duties of the two offices are 

wholly unrelated, are in no manner inconsistent, 

[and) are never in conflict. Neither officer is 

accountable to the ather. nor under his dominion. 

Neither is subordinate to the other, nor has any 

power or right to interfere with the other in the 

performance of any duty. The offices are therefore not inconsistent or incompatible. . . . 

State v. Martin, 51 S.W.Zd 815. 817 (Tex. Civ. App. - San Antonio 

1932. no writ). There are ::wo aspects of incompatibility. First, 

that an office represents interests in conflict with those represented 

by the other, and. second, tt,at the law makes one office subordinate 

to and accountable to another. 

These authorities provide a sufficient basis to auswer your 

questions about officers. School district trustees are public 

officers. Thomas V. Aberrathy County Line Independent School 

District, supra. The State Izlard of Education has numerous powers and 

duties which conflict with the legal role of school trustees. The 

trustees “shall have the el:c:lusive power to manage and govern the 

public free schools of the district.” Kduc. Code 523.26(b). The 

State Board of Education, however, has numerous regulatory and 

supervisory powers over sctcol districts. For example. the State 

p. 898 
Honorable Gibson D. (Gib) Lewis - Page 6 (JM-203) 

Board of Education, with two other state agencies, adopts end enforces 

regulations governing design, equipment, constructlon, and operation 

of school buses owned and operated by a tichool district. Educ. Code 

$11.12. Adult education 

shall be provided by public school districts . . . 

in accordance Mth state statute and the 

regulations and I,l:andards adopted by the State 

Board of Education,. . 

Educ. Code 511.18(c) (as amerded by H.B. No. 72; see Acts 1984, supra, 

at 290). The State Boax,d adopts standards aad a process for 

accrediting public schools ard may have to revoke the accreditation of 

a non-complying school distx’lct. Educ. Code 5511.26(c)(5) (as amended 

by H.B. No. 72, see Acts 19E4, supra , at 292); 21.753-21.757 (added by 

H.B. No. 72; seeAct. 1984, supra. at 403-05). Goals for the public 

school system are to be estc,tlished by the State Board. Sec. 11.26(b) 

(as amended by R.B. No. 72; E Acts 1984, supra. at 292). School 

districts must report to the board the fiscal and management 

information required by stzlt,uts. See Educ. Code 023.48. There are 

other statutes vhich subortilnste boards of school trustees to State 

Board control and place the two offices in conflict. See, e.g., Educ. 

Code 5521.721(d) (alternatj.x,es to social promotion) (as amended by 

H.B. No. 72; see Acts 1984, lupra, at 393); 21.111(a). (b) (Vocational 

Education) (as amended by H.1). No. 72; E Acts 1984, supra. at 296); 

23.29(b) (Board establishes criteria for sale of minerals by school 

district). The offices are j.ncompatible under common law. 

Junior college trusteecl are also officers. Educ. Code IS130.002, 

130.082. 130.084; Attorney Zenera Letter Advisory No. 149 (1977). 

The State Board of Educat:Lon adopts standards and regulations for 

approving adult education programs in junior colleges. Educ . Code. 

511.18(c), supra. It is involved in the state-level administration of 

technical-vocational education programs in junior colleges. Edtic. 

Code 011.24(a); sea also Educ. Code 15135.03-135.04; Attorney General 

Opinions H-929 (1977); H-580, H-541 (1975). Junior college trustees 

vhen implementing these prozrama are subordinate ~to the State Board’s 

authority. The office of junior college trustee is therefore 

incompatible with the office! of State Board member, and one person may 

not hold both offices. 

Regents of state colleges and universities are officers subject 

to the doctrine of incompatibility. The State Board has authority 

over standards for approv,Lng university adult education programs. 

Educ . Code 011.18(c), 25~. It also establishes standards for 

approving teacher education programs at colleges and universities. 

Educ . Code 513.032(a). 5 32 also Educ. Code 113.032(e) (Board 

prescribes competency exam i%r admission to approved teacher education 

program). If the coannissio~~r of education determines that a teacher 

education program does no,: meet the board’s standards, he may 

p. 899 
Honorable Gibson D. (Gib) Lar:Ls - Page 7 (JM-203) 

institute sanctions, includltrg recomending that the board put the 

program on probation. Educ. Code 113.033 (added by R.B. No. 72; see 

Acts 1984, supra. at 378). If the program does not correct ies 

deficiencies by the end of the 24-month probation, the State Board Is 

to revoke its accreditation. Id. The governing bodies of colleges 

and universities authorized toeetablish adult education or teacher 

education programs are thus allbject to the State Board’s direction and 

control in connection with the programs. The regents of public 

colleges and universities with this authority hold an office 

incompatible at common law wt:h the office of State Board member. See 

& Educ. Code 121.921 (added by B.B. No. 72; see Acts 1984. e 

at 402) @IL, which is part >f the University ofGas at Austin, must 

submit rules and procedures E,,r board approval). 

MPLOY EES 

Before turning. to the public employments you inquire about, we 

will consider the rationale :ior extending the comeon law doctrine of 

incompatible offices to empL,,yments. Attorney General Opinion V-303 

(1947) discusses the doctrine as follows: 

At common law :;ldopted as the law of Texas in 

Article 1, R.C.S., when not inconsistent with our 

statutes or Const::i:ution), ‘there is no limit to 

the number of offices which may be held simultaneously by the same person. provided that neither of 

them is incompa c~tble with any other. . . .’ 

Throop , Public Officers, p. 33. ‘The 

inconsistency . . . does not consist in the 

physical impossibility to discharge the duties of 

both offices, but lies rather in a conflict of 

interest, as vhe,r+! one is subordinate to the 

other . . . or tas the power to remove the 

incumbent of the ‘a-:her. or to audit the accounts 

of the other.’ [citing 46 C.J. at 9411. 

Meecham on Public Offices and Officers, p. 269. 

announces the rule to be that: ‘the mere physical 

impossibility of one person’s performing the 

duties of the two offices as from the lack of time 

or the inability x be in tvo places at the same 

moment, is not the incompatibility here referred 

to. It must be an inconsistency in the functions 

of the two offices, as judge and clerk of the same 

court, claimant and auditor, and the like.’ 

The two Texas judicial decisions address incompatible offices, as do 

the authorities cited in -:he quotation above. Attorney General 

Opinion V-303 (1$47), after I;tating the rule on incompatible offices, 

proceeds to consider whether s State Highway Department employee may 

p. 900 
Honorable Gibson D. (Gib) Lewis - Page 8 (Jki-203) 

work as en independent contz,actor for a school district. It found the 

two jobs not incompatible, but it overlooked the threshold question of 

whether the common law doctr,ine was even relevant to public e@Oyment 

or work as an independent rc’rtractor for a political subdivision. 

Other opinions have clc:sumed that the common law doctrine of 

incompatible offices applies to employments without citing authority 

for thus expending the doctrine. See, e.g., Attorney General Opinions 

MW-415 (1981) (full-time and part-time public employments); H-665 

(1975) (paid firemen and volunteer firemen); V-1346 (1951) (justice of 

the peace and county laborer); V-345 (1947) (employee of one state 

agency and independent contractor for another); Attorney General 

Letter Advisory Nos. 137 (1977) (probation officer and college 

instructor) ; 62 (1973) (school trustee and employee of Texas 

Rehabilitation Commissio”); 30 (1973) (college professor and 

researcher for Constitutiona:. Revision Commission). See also Attorney 

General,Opinlons V-24 (1947) and O-2929 (1942) (employment with state 

agency “incompatible” with private employment). 

These opinions expand tne common law doctrine ,of Incompatibility 

to employments without exp:.anation or citation of authority. The 

conclusions are not for that reason necessarily incorrect. Some of 

the opinions which use ttu doctrine imprecisely find no conflict 

between the two positions, vhile other opinions rely on additional 

rules developed to prevent ~:onflicts of Interest. 

In contrast, Letter Advisory No. 114 (1975) relies on case law 

from other states to concl,c,de that the office of school trustee is 

incompatible with employment as a teacher in the same district. See 

Haskins v. State, 516 P.2d 1171 (Wyo. 1973); 70 ALR 3d 1171 (1976). 

Other courts faced with this issue have concluded that an insuperable 

conflict of interest preverts an employee school teacher from serving 

on the employer school bo;ird. Annot. 70 ALR3d 1188 (1976). sea 

Knuckles v. Board of Education, 114 S.W.Zd 511 (KY. 1938); Clifford7 

School Committee of Lynn,-35 N.E. 634 (Mass. 1931); Visotcky v. 

Garfield, 273 A.2d 597 (NJ Super. Ct. App. Div. 1971); Tarpo v. Bowman 

public School District # 1., ,232 N.W.Zd 67 (N.D. 1975). Attorney 

General Letter Advisory NC. 114 relied on Haskins v. State for its 

determination that the po:.;.cies underlying the common law doctrine 

justified its expansion to prohibit an employee from serving as the 

employing officer. The Haskins court reviewed the law of other states 

--- 

and concluded that 

[tlhese [sister state] decisions . . . uniformly 

declare that it is inimical to the public interest 

for one in pubL:lc employment to be both the 

employer and the employee. or the supervisor and 

the supervised. Subordination is the key word. 

After considerable research and careful 

consideration of the reason and basis for the rule 

against incompat:ll~ility. a majority of the Court 

p. 901 
Honorable Gibson D. (Gib) Lewis - Page 9 (Jll-203) 

are convinced th.a~: we should not ourselves be 

bound by technic.al definitions of the word 

office . . . . (Inphasis added). 

516 P.2d at 1178. 

Texas courts have reachrid similar results based in part on other 

comeon law rules. The Texas Supreme Court has recognized that all 

officers who have appointivc! power are disqualified -from appointing 

themselves. Ehlinger v. Clark, 8 S.W.Zd 666 (Tex. 1928). In Starr 

r 

,2aT79 (Tex. Civ. App. - Sen Antonio 1956, 

court found that the commissioners court could not 

employ e member of the court as road commissioner for the entire 

county; such employment was contrary to article 2340. V.T.C.S., and to 

the “policy of the law.” ‘[t was in effect an effort by a public 

officer to contract with himself. See Cornutt v. Clay County, 75 

S.W.Zd 299 (Tex. Civ. App.. - Eastland 1934, no writ): Knippa v. 

Stewart Iron Works, 66 S.W. Z22 (Tex. Civ. App. - 1902. no writ). The 

Texas courts have not relie’i on the c-on law doctrine of incompatibility to prevent employees from holding offices with inconsistent 

duties, but they have reached such results relying on other conflict 

of interest concepts. The rf’asoning. and result of Letter Advisory No. 

114 is certainly consistent blth Texas case law. 

Your question thus requires us to consider whether the courts 

would extend incompatibiU.ty to prohibit various employees from 

serving on the transitional board. 

classes of employees: 

You inquire about the following 

(1) public school professional employees who 

are certified under state law and State Board of 

Education rules (this would include teachers, 

counselors, admin:.r;trators, and other professional 

positions); 

. . . . 

(3) junior co:.:.ege faculty and administrators; 

. . . . 

(5) senior college or university faculty and 

administrators, Iulrticularly those involved in 

teacher education programs; 

. . . . 

(7) regional education service center 

employees; and 

(8) Central Education Agency . . . employees. 

p. 902 
n 

Honorable Gibson D. (Gib) Lewte - Page 10 (JM-203) 

You vish us to determl:le vhether the duties of each class of 

employees sre incompatible with those of State Board of Education 

members. A question of incompatibility is primarily a legal question, 

but its resolution may require information not given in the relevant 

statutes. For example, if tvo offices serve jurisdictions which 

overlap geographically, thej.1, duties are much more likely to conflict 

than if they serve geograpllically separate areas. See Thomas v. 

Abernathy County Line Independent School District, =a; compare 

Attorney General Opinion JM-133 (1984) with Attorney General Letter 

Advisory No. 149 (1977). Information thrparticular conflicts have 

actually developed between an office and an employment makes it easier 

to point out conflicting legal duties. See Haskins v. State, supra. 

This office cannot definitively resolve each incompatibility question, 

but ve can offer general guidance in this ares. 

The legal differences t’etveen an officer and an employee suggest 

why the incompatibility docl:rine hrs traditionally applied only to 

officers and has been only cautiously extended to the case of an 

employee and, the employing officer. A public officer, as distinguished from B public employee, has the authority to exercise a 

sovereign function of the novernment largely indeuendent of the 

control of others. Aldine :.idependent School-District v. Standley 

280 S.W.2d 578 (Tex. 1955);jlunbsr v. Brszorla County, 224 S.W.2d 73;’ 

(Tex. Civ. App. - Galveston 1949, writ ref’d). An employee does not 

have sovereign functions tcm be exercised independently.. His duties 

are assigned by others; his .rork is subject to their supervision and 

control. He is unlikely I:O exercise powers or have duties which 

conflict vith sn officer’s powers and duties. 

When so. officer sccer ts a second incomostible office. he is 

deemed to have resigned th;! first. Thomas Y.’ Abernathy County Line 

Independent School District, supra. This remedy highlights the 

difference between a public-bfficer and a public employee. A public 

officer can relinquish the drities of his office only-b; relinquishing 

the office. See McGuire v. Hughes, 452 S.U.2d 29 (Tex. Civ. App. - 

Dallas 1970, no writ). An employee, in contrast, may carry out 

functions, which appear to conflict with an officer’s duties, but the 

employee may be able to chsxge functions through reassignment vithout 

relinquishing his employment. 

An employee is most likely to have a conflict vith the officer or 

officers to vhom he is directly accountable. Compare Attorney General 

Opinion MW-450 (1982) with llttorney General Letter Advisory No. 114 

(1975). Officer-emplo= incompatibility is the second kind of 

incompatibility, where “[slrdlordination is the key word.” Haskins v. 

State, supra. The office+s legal duties to the public do not 

conflict vith the employee’s duties. Instead, the employee’s personal 

interest in his employment wnflicts with the officer’s duty to serve 

the public. Cf. art. 6252-9b. 58(c) (no state officer should accept 

employment which could impair his independence of judgment in the 

performance of his official duties). 

p. 903 
Ronorsble Gibson D. (Gib) Lcrls - Page 11 (JM-203) 

We turn to the smployeorl you inquire about to examine the legal 

relstionships between them end the State Board of Educstion. 

Certified public school emp:loyees. such se teachers. counselora, snd 

sdministrstors, are subject to the direction and control of the local 

board of trustees. Educ. Code 123.26; see slso Educ. Code 

1913.101-13.117 (employment elf teachers by school board). The State 

‘Board of Education exercises sdministrstive. policy-making and 

rulsmaking povers which sffcct public schools and their employees. 

See, e.g., Educ. Code $511.18(c) (adult education programs); 11.26 

(policy-making and budget%:7 powers affecting public schools); 

11.26(c)(S), 11.36(s), 21.71~1-21.757 (sdded by H.B. No. 72; see Acts 

1984, supra, at 403-05) (school accreditation); 16.056 (boardapproval 

of policies for 1mplement:tng Texas Public Education Compensation 

Plan). However, school exployees are, 8s s general matter, only 

indirectly affected by the State Bosrd's exercise of most such povers; 

school employees remain directly subordinate to the locs,l board. Any 

conflicts between the State Board and a local board sre relevant to 

incompstibility between Sts:e Board members and school trustees, not 

school employees. 

The provisions on certification, hovever, may csuse conflicts 

between the State Board and some certificated personnel. The State 

Board administers the issuar,ce of certificates. Educ. Code 513.032(s). 

Among its other responsibilf~ties , the board is to prescribe competency 

exsm* for applicants for certificstion. Educ . Code 513.032(e). 

Teachers and sdministrstoc s who did not take a certificstion 

examination are required to perform sstisfactorily on "an examination 

prescribed by the borlr,d 6.8 condition to 

certificstion. . . ." Educ. Code $13.:47(s) 

continued 

(added by E.B. No. 72; 

see Acts 1984. supra, st 36f;). The State Board may exempt persons vho 

perform sstisfsctorily on en exam of equal difficulty given by the 

employing district. Educ. Co)de §13.047(g) (added by H.B. No. i2; see 

- 

Acts 1984, supra, at 369). 

These provisions raise the possibility that s certified teacher 

serving 8s a State Board member might have to prepare an exsminstion 

which he is required to t.%:ce. We do not believe these provisions 

create an incompstibility between the two positions. The State Board 

might decide to use sn e:romination prepared by a testing service 

rstber than preparing questions itself. See Attorney General Opinion 

h-78 (1967). Some certificated persons arenot required to take the 

exsmination. The conflict is not inherent in the employment status, 

but instead is a conflict that some individusl public school employees 

may have. If this conflic,: actually arises, the certificated member 

msy need to choose between %msining on the board and taking the exam. 

The conflict is not, however. insuperable. We are not compelled to 

conclude that common law bars certificated personnel from serving on 

the State Board. 

You next inquire about junior college faculty and administrators. 

As already discussed, the litate Board has some authority to regulate 

p. 904 
q 

Honorable Gibson D. (Cib) Lerr:‘.a - Page 12 (m-203) 

the adult l ducstion and vocational education programs offered by 

junior college districts. In our opinion, the board’s administrative 

and rulemaking povera do not create incompstib~ility between board 

members and junior college teachers end administrators. The junior 

college personnel do not hsvl! statutory duties vhich conflict with the 

.duties of board members. ~hc!y ,sre accountable to the junior college 

trustees, not to the board. Even though junior college personnel are 

indirectly affected by boari, powers, we do not believe they have the 

kind of insuperable conflict which constitutes incompstibility. 

You next inquire about :senior college or university faculty and 

sdministrstora, perticulsrl:r those Involved in teacher education 

programs. We will deal on1.y vith the Education Code provisions on 

teacher education. See ,ger.erslly Educ. Code, ch. 61 (Coordinating 

Board, Texas College and Un1.versity System). The board establishes 

standards for approving tec,cher education programs st colleges and 

universities. Educ. Code 013.032(a). If the Commissioner of 

Education determines that a teacher education program fails to meet 

the Board’s standards. he first notifies the chief sdministrstor and 

*w regents’ accreditation committee in confidence. Educ. Code 

613.033(s) (added by H.B. No. 72; E Acts 1984, supra, st 378-79). 

If the deficiency is not ccrrected, the commissiooer is to give the 

regents public notice and finally recommend that the State Board place 

the program on probation. Id. 

--- 

Section 13.033(s) of the Education Code gives the chief 

administrator of teacher education programs an opportunity to correct 

deficiencies in the program. If deficiencies sre not corrected, the 

board may impose the ssnctio~a of probation and ultimately revoke its 

accreditation. The chief administrator and the board have conflicting 

interests and responsibilities. The employer must correct 

defici~encies in his program ilnd no doubt has a strong interest in its 

continued operation without public sanctions. The board member must 

enforce compliance with its :Itandards, even by revoking the program’s 

sccredltstion if necessary. We believe the common law doctrine of 

incompstibi3 icy may reasonably be extended to bar the chief 

sdministrstor of a teacher education program from serving on the 

board. 

EDUCATION ZERVICE CENTER BMPLOYEES 

You next inquire a::cut regional education service center 

employees. Under section 11.32 of the Education Code, the board 

provides by rule and regulat,ion for the estsblishment and operation of 

centers to provide educatlousl servi~ces to school districts and to 

coordinate educational planuing in the area. Each center is governed 

by a locally appointed board of directors, vhich has statutory 

authority to employ necessary personnel. Educ. Code 011.32(d). The 

employees of the centers arc hired by and accountable to the local 

board of directors. The State Board’s rules for operating the center 

necessarily affect employees. but they do not make employees 

p. 905 
n . 

. 

Ronorsble Gibson D. (Gib) Le~tie - Psgc 13 (JM-203) 

immedistely subordinate or accountable to the board. Nor do they 

raise a question of conflicting legal interests, although certainly sn 

smployee'a ideas about education may be Influenced by the nature of 

his employment. Cormson law incompstibility does not prevent his 

service. 

EDUCATION AGENCY OFFICERS AND RMPLOYEES 

You have Inquired sbcut officers and employees of the Central 

Education Agency. However, we have been informed thst no officer or 

employee of this sgency has been nominated to the governor. 

Therefore, we do not belie%,*, it is necessary to address this question 

at this time. 

This opinion is limitc!e, to the specific offices, employments and 

Educstion Code provisions discussed. As slresdy noted. some incompatibility questions can only be resolved after examining detailed 

information about an individusl's legal powers and duties. House Bill 

No. 72 enacts substantial :!lsnges in the Education Code, and has not 

yet been interpreted in z.dministrative constructions or judicial 

decisions. Future interpretations of this law may raise questions 

about incompstibility not considered here or suggest reasons for 

exceptions to some of our answers to your questions. Such questions 

must be resolved on s case by case basis with reference to the general 

principles stated here. 

SUMMARY 

The common lsv doctrine of incompstibility bars 

school trustees, junior college trustees, and 

certain college and university regents from 

serving on the trsnsitionsl State Board of 

Education estsblkhed under House Bill No. 72. 

Acts 1984, 68th Leg., 2nd C.S., ch. 28, at 269. 

Certain employees of educational agencies who are 

directly subordinate to or accountable to the 

board sre barred by the common lsv doctrine from 

serving on it. ?'his opinion is limited to the 

offices, employments and Education Code provisions 

discussed in it. 

uly yo , 

d&g 

+------ 

GREEN 

First Assistant Attorney General 

DAVID R. RICBARDS 

Executive Assistant Attorney General 

1,. 906 
: 

N 

Honorable Gibson D. (Cib) Lwie - Page 14 (JM-203) 

Prepared by Susan L. Garrison 

Assistsnt Attorney Genersl 

APPROVED: 

OPINION COMMITTEE 

Rick Gilpin, Chairman 

Colin Carl 

Susan Garrison 

Jim Hoellinger 

p. 907