# TheAttorney GeneralofTexas

June 16. 1982 MARKWHITE Attorney General

Supreme Courl Building P.0. Box12546 Austin. TX. 76711. 2546 5121475.2501 Telex 9101674-1367 Telecopier 51214754286

1607Main St.,Suite 1400 Dallas. TX. 75201-4709 2141742.6944

4624Alberta Ave.,Suite 160 ElPaso.TX. 79905.2793 915/533-3464

1220Dallas Ave.,Suite202 Houston, TX. 77002.6966 713/650@66

606Broadway, Suite 312 Lubbock. TX. 79401.3479 8061747.5238

4309 N.Tenth, Suite S McAllen, TX. 76501-1685 6121662.4547 Honorable Richard G.Morales, Sr. WebbCounty Attorney 1810SanBernard0 Laredo, Texas 78040 opinion No. MW-479
Re: Whether a teacher with the Laredo Independent School District is disqualified from serving on the Coordinating Board, Texas College and University System or the State Board of Education
DearMr.Morales:
You have asked whether a teacher from the Laredo Independent School District is disqualified from serving onthe Coordinating Board of the Texas College and University System by section 61.022 of the Texas Education Code, whether section 11.22 of the code disqualifies a teacher employed by Laredo Junior College from serving on the State Board of Education, and, in the event the answers to the above questions areyes, whether either section 11.22 or 61.022 violates the civil rights of ateacher or is adeprivation of equal protection. Section 61.022 of the Texas Education Code is very specific on the issue of educators serving onthe Coordinating Board of the Texas College andUniversity System. It states, in relevant part:

No member may be employed professionally for remuneration in the field of education during his termof office. 200Main Plaza. Suite400 SanAntonio. TX. 76205.2797 The statute is plain and unambiguous; the literal meaning must be 5121225.4191 given to the words. Attorney General Opinion MW-198 (1980). A teacher works in the "field of education" and is therefore AnEqual Opportunity/ disqualified from service on the Coordinating Board of the Texas Affirmative Action Employer College andUniversity System.
Section 11.22 of the Texas Education Code provides the qualifications for membership on the State Board of Education. Section 11.22(b) states:

Noperson shall be eligible for election to or serve onthe board if heholds anoffice with the State of Texas or any political subdivision thereof, or holds employment with or receives any

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compensation for services from the state or any political subdivision thereof (except retirement benefits paid bythe State of Texas or the federal government), or engages in organized public educational activity. (Emphasis added). Laredo Junior College is a public junior college. Educ

. Code §61.003(2). Ateacher at Laredo Junior College receives compensation from a political subdivision of the state and takes part in an

“organized public educational activity.” Thelanguage of the statute is clear and capable of noother interpretation; any person whofits into one of the listed categories is barred from service onthe State Board of Education. SeeAttorney General Opinion M-1290 (1972). - It has been argued that the 1972 amendment to article XVI. section 40 of the Texas Constitution liberalized the application of incompatibility provisions in the constitution, the statutes, andthe common law. However, the amendment makes only the following exception:
State employees or other Individuals whoreceive

all or part of their compensation either directly or indirectly from funds of the State ofTexas and whoare not State officers, shall not be barred from serving esmembersof thegoverning bodies of school districts, cities, towns, or other local governmental districts; provided, however, that such State emploree or other individuals shall receive no salary for serving as members of such governing bodies. (Emphasis added). Members of both the State Board of Education and the Coordinating Board of the Texas College and University System are state officers. See Educ. Code 0911.24, 61.021, 61.022; Freemanv. Dies, 307 F. Supp. 1028 (N.D. Tex. 1969). The exception to dual office holding is limited to state employees serving in specified local offices. Attorney General Opinion MW-149 (1980). See also Attorney General Opinion H-739 (1975); WW-165(1957).
Since our answer to your question is that service on the two state boards is prohibited, we must determine if this prohibition violates the civil rights of, or deprives equal protection to, a teacher sobarred.
Thefederal civil rights act has never been held to apply to the

“right to candidacy.” (1972). See, e.g., Bullock v. Carter, 405 U.S. 134

See 42U.S.C. 51981, Notes of Decisions. - Weturn to the equal protection issue. Wenote initially that section 11.22(b) of the Texas Education, Code prohibits a described class of persons from seeking aparticular elective office. Section 61.022. on the other hand, merely limits the group from which the

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governor mayappoint acoordinating board memberto persons whowill not be “employed professionally for remuneration in the field of education” during the term of office. We will discuss section 11.22(b) first. The Supreme Court has upheld election laws which classified candidates for purposes of access to the ballot onthe ground that the classification served an “important state interest.” Jenness v. Fortson, 403 U.S. 431 (1971) (petition procedure for independent candidates whohadnot wonparty primary). CompareBullock V. Carter, supra (statute denying ballot access onbasis of candidate’s ability to pay large filing fees must be “closely scrutinized”). The existence of barriers to candidate access to the ballot will compel close scrutiny where such barriers have a substantial impact on voters, andwhere this impact Is related to the economic resources of the candidate andelectorate. Bullock v. Carter, supra. at 144.
State laws which restricted political candidacies of public employees, without discriminating on the basis of economic resources or other such imnermlssible considerations. have been sublect to the

“traditional” or-II rational basis” standard of review. Morial v. Judiciary Commission of Louisiana, 565F.2d 295 (5th Cir. 1977). cert. denied, 435U.S. 1013 (1978); Wilson v. Moore, 346F. Supp. 635 (N.D. W.Va. 1972). Suchrestrictions onpublic employees donot violate the equal protection clause unless they are unreasonably and obviously arbitrarv and unless no conceivable factual situation would iustifv the apparently unequal treatment. Wilson v. Moore, supra, it 639: See also Horial v. Judiciary Commission of Louisiana, supra. at 304-06; Annot., 59 L.Ed.2d 852 (1979); Annot., 44 A.L.R. Fed. 306 (1979).
In our opinion, section 11.22 of the Education Codeis subject to rational basis scrutiny, andarational basis for its restrictions can be shown. Section 11.22(b) prohibits service on the State Board of Education byanyperson whoholds office with the state or apolitical subdivision, or whoreceives compensation from any such governmental body. Letter Advisory No. 56 (1973) noted that under this provision a State Board of Education member represents a particular district in addition to serving asastate official whose decisions have statewide effect. His duties are therefore twofold, allowing less time for other public activities and offering more opportunities for conflict of interest to arise. Moreover, the extensive activities of amember of the State Board of Education could create conflicts of interest if he served the state or a political subdivision as an officer or employee, or received anycompensation therefrom. Seealso Educ. Code P8135.03. 135.04 (State Board of Education approves junior college vocational education programs); Attorney General Opinion H-580 (1975): These interests provide arational basis for section 11.22(b) of the Education Code.
Section 61.022 of the Texas Education Code prevents the appointment to the Coordinating Board of any person “employed

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professionally for remuneration In the field of education during his term of office." This provision, which concerns anappointive office, does not restrict anyone's candidacy to elective office or have an impact on the electorate's choice of acandidate. Since the voters’ and candidate's interests form the basis of equal protection attacks onballot access requirements, the SupremeCourt cases onthis subject are not necessarily applicable. Section 61.022 need only meet the usual rational basis test. If any state of facts will sustain the statute, it will be presumed the legislature hadthose facts in mind when it enacted the statute. McDonald v. Board of Election Commissioners of Chicago, 394 U.S. 802 (1969); Exparte Tigner, 132 S.W.2d 885 (Tex. Crim. App. 1939). TheCoordinating Board has considerable direct control over state institutions of higher education, including junior colleges. Educ. Code 0161.051-.0631. It is also required to encourage cooperation between public andprivate institutions, and to consider the availability of degree and certificate programs in private institutions of higher education in determining programs for public institutions. Educ. Code 561.064. Thus, even an educator employed by a private institution of higher education could find that his responsibilities as amemberof the Coordinating Board conflict with his interests in his employment. TheCoordinating Board also is empowered to order the initiation, consolidation, or elimination of teacher certification programs at institutions of higher education. Educ. Code 961i051(e). See also Educ. Code 113.039(a). This power would have someimpact on the supply of teachers for public elementary andsecondary 'schools and the private institutions that compete with them. Consequently; we believe there is a rational basis for the prohibition in section 61.022, andthat it does not violate the equal protection clause.
SUMMARY
Section 61.022 of the Texas Education Code prohibits teachers employed by school districts from serving on the Coordinating Board of the Texas College andUniversity System; section 11.22 of the code bars teachers employed in a public junior college from serving onthe State Board of Education. The classifications created by the legislature donot violate the civil rights of, or deprive equal protection to, ateacher sobarred..
s+/

MARK WHITE Attorney General of Texas
JOENW.FAINTER,JR. First Assistant Attorney General

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RICHARDE.GRAYIII Executive Assistant Attorney General Prepared bySusanL. Garrison 6 Patrlcla Hinojosa Assistant Attorneys General
APPROVED: OPINIONCOMMITTEE
SusanL. Garrison, Chairman JonBible Rick Gilpin Patricia Hlnojosa JimMoellinger

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