The Attorney General of Texas 

June 16. 1982 

MARK WHITE 

Attorney General 

Supreme Courl Building 

P. 0. Box 12546 

Austin. TX. 76711. 2546 

5121475.2501 

Telex 9101674-1367 

Telecopier 51214754286 

1607 Main St., Suite 1400 

Dallas. TX. 75201-4709 

2141742.6944 

4624 Alberta Ave., Suite 160 

El Paso. TX. 79905.2793 

915/533-3464 

1220 Dallas Ave., Suite 202 

Houston, TX. 77002.6966 

713/650@66 

606 Broadway, Suite 312 

Lubbock. TX. 79401.3479 

8061747.5238 

4309 N. Tenth, Suite S 

McAllen, TX. 76501-1685 

6121662.4547 

Honorable Richard G. Morales, Sr. 

Webb County Attorney 

1810 San Bernard0 

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 

Dear Mr. Morales: 

You have asked whether a teacher from the Laredo Independent 

School District is disqualified from serving on the 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 are yes, whether either section 11.22 or 61.022 violates the 

civil rights of a teacher or is a deprivation of equal protection. 

Section 61.022 of the Texas Education Code is very specific on 

the issue of educators serving on the Coordinating Board of the Texas 

College and University System. It states, in relevant part: 

No member may be employed professionally for 

remuneration in the field of education during his 

term of office. 

200 Main Plaza. Suite 400 

San Antonio. 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 

An Equal Opportunity/ disqualified from service on the Coordinating Board of the Texas 

Affirmative Action Employer College and University 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: 

No person shall be eligible for election to or 

serve on the board if he holds an office with the 

State of Texas or any political subdivision 

thereof, or holds employment with or receives any 

p. 1691 
Honorable Richard G. Morales. Sr. - Page 2 (MW-479) 

compensation for services from the state or any 

political subdivision thereof (except retirement 

benefits paid by the 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). A teacher at Laredo Junior College receives compensation 

from a political subdivision of the state and takes part in an 

“organized public educational activity.” The language of the statute 

is clear and capable of no other interpretation; any person who fits 

into one of the listed categories is barred from service on the State 

Board of Education. See Attorney 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, and the 

common law. However, the amendment makes only the following 

exception: 

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 es members of the governing 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; Freeman v. 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 so barred. 

The federal 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 42 U.S.C. 51981, Notes of Decisions. 

- 

We turn to the equal protection issue. We note initially that 

section 11.22(b) of the Texas Education, Code prohibits a described 

class of persons from seeking a particular elective office. Section 

61.022. on the other hand, merely limits the group from which the 

p. 1692 
Honorable Richard G. Morales, Sr. - Page 3 (Mw-479) 

governor may appoint a coordinating board member to persons who will 

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 on the ground that the 

classification served an “important state interest.” Jenness v. 

Fortson, 403 U.S. 431 (1971) (petition procedure for independent 

candidates who had not won party primary). Compare Bullock V. Carter, 

supra (statute denying ballot access on basis 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, and where this impact Is related to the economic resources of 

the candidate and electorate. 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, 565 F.2d 295 (5th Cir. 1977). cert. 

denied, 435 U.S. 1013 (1978); Wilson v. Moore, 346 F. Supp. 635 (N.D. 

W.Va. 1972). Such restrictions on public employees do not 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 Code is subject to 

rational basis scrutiny, and a rational basis for its restrictions can 

be shown. Section 11.22(b) prohibits service on the State Board of 

Education by any person who holds office with the state or a political 

subdivision, or who receives 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 as a state 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 a member 

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 any compensation therefrom. See also 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 a rational 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 

p. 1693 
Honorable Richard G. Morales, Sr. - Page 4 (MW-479) 

professionally for remuneration In the field of education during his 

term of office." This provision, which concerns an appointive office, 

does not restrict anyone's candidacy to elective office or have an 

impact on the electorate's choice of a candidate. Since the voters’ 

and candidate's interests form the basis of equal protection attacks 

on ballot access requirements, the Supreme Court cases on this 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 had those facts in mind 

when it enacted the statute. McDonald v. Board of Election 

Commissioners of Chicago, 394 U.S. 802 (1969); Ex parte Tigner, 132 

S.W.2d 885 (Tex. Crim. App. 1939). 

The Coordinating 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 and private 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 a member of the Coordinating Board conflict with his interests in 

his employment. The Coordinating 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 some impact on 

the supply of teachers for public elementary and secondary 'schools and 

the private institutions that compete with them. Consequently; we 

believe there is a rational basis for the prohibition in section 

61.022, and that 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 and University System; section 11.22 

of the code bars teachers employed in a public 

junior college from serving on the State Board of 

Education. The classifications created by the 

legislature do not violate the civil rights of, or 

deprive equal protection to, a teacher so barred.. 

s+/ 

MARK WHITE 

Attorney General of Texas 

JOEN W. FAINTER, JR. 

First Assistant Attorney General 

p. 1694 
Honorable Richard G. Morales, Sr. - Page 5 (MU-479) 

RICHARD E. GRAY III 

Executive Assistant Attorney General 

Prepared by Susan L. Garrison 6 

Patrlcla Hinojosa 

Assistant Attorneys General 

APPROVED: 

OPINION COMMITTEE 

Susan L. Garrison, Chairman 

Jon Bible 

Rick Gilpin 

Patricia Hlnojosa 

Jim Moellinger 

p. 1695