JIM MATTOX Attorney General

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# The Attorney General of Texas

December 30, 1983

HonorableThomas F. Lee DistrictAttorney P. 0. Box 1405 Del Rio, Texas 78840 OpinionNo. JM-118
Re: Whether articleXVI, section 40 of the Texas Constitution preventsa school teacherworking under a federally funded program from receiving compensation for serviceas a city councilman
Dear Mr. Lee:
You have asked whether article XVI, section 40, of the Texas Constitutionprevents public school teacherswho work under federally funded programs from receiving compensation for service as city councilmen. We conclude that since such persons receiveat leastpart of their compensation from state funds, theymay serve simultaneously as public school teachers and as members of a city council only if they receiveno salary for service on the city council. Article XVI, section 40, of the Texas Constitutionprovides, in pertinentpart, that

[SItateemployeesor other individualswho receive all or part of their compensationeither directly or indirectlyfrom funds of the State of Texas and who are not State officers, shall not be barred from servingas members of the governingbodies of school districts, cities, towns, or other local governmental districts; provided, however, that such State employees or other individuals shall receive no salary for serving as members of such governingbodies. Since it is clear that a public school teachermay not receivea salary for service on a city council if any part of the teacher's compensation is derived directly or indirectly from state funds, the question iswhether the teachersyou describeare compensatedby state funds within the meaning of article XVI, section 40. See Attorney - GeneralOpinionMU-230 (1980).

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Two of the teachers are employed by the school district as directors of programs enacted by the Elementary and Secondary Education Act, which are referred to as a Title I, Regular Program, and Title I,Migrant Program. See Public Law 97-35, title5, subtitle - D, chapter 1, sections 551-560, codified as 20 USCA 853801 et seq. Funding from the federalgovernment for theseprograms is deposited in the state treasury in H.E.W. Fund No. 148 and is appropriated to the Texas Central EducationAgency by the Texas Legislature. See General AppropriationsAct, Acts 1983, 68th Leg., ch. 1095, art. III, $1, at 111-2. The funds in question are administeredby the Texas Education Agency and forwarded to the school district by state warrants. Federal fundsdeposited in the state treasurybecome state funds. See - Attorney GeneralOpinion C-530 at 2529 (1965).
You also describe a teacher who is employed by the school district as director of a program enacted by the Elementary and Secondary Education Act, which is referred to as a Title VII, BilingualEducationProgram. See Bilingual EducationAct, codifiedas 20 USCA 983221-3261. Federal-&ding for this program is forwarded directly to the school district from the federal government and is deposited in a Designated Purpose Fund in which the school district places other federal, state,and local funds.
You advise that each of the described teachers participates in the State Retirement System,which is administeredby a state agency, and each teachermakes the employee'scontributionto the system. The employer's contribution is paid from the federal program funds. A provision of the Teacher Retirement System requires that, if an employer applies formoney providedby the United States or an agency of the United States and if any of the money will pay part or all of an employee's salary, the employer shall apply for availablemoney to pay the required state contributionto the retirementsystem. When an employerreceivesmoney for the state contributionfroman application made in accordancewith thatprovision, the employer shall immediately send the money to the retirement system for deposit in the general revenue fund of the state treasury. See V.T.C.S. Title 1lOB. Public Retirement Systems, 935.405. As we already have noted, federal funds deposited in the state treasury become state funds subject to appropriation. See Attorney General Opinion WW-565 (1959). The legislature appropriates the required state contribution to the Teacher Retirement System out of the general revenue fund. See GeneralAppropriationsAct, Acts 1983, 68th Leg., ch. 1095, art. 1% $1. at 111-18. Retirement benefits, including future benefits, are compensation. See Byrd v. City of Dallas, 6 S.W.Zd 738 (Tex. 1928); Attorney Generalpinion M-413 (1969);LetterAdvisoryNo. 154 (1978). Therefore, we conclude that each of the teachers in question receives part of his compensation indirectly from funds of the state

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and may serve on a city council only if he receives no salary for serviceon the city council.
SUMMARY

Certain public school teachers who work under particular federally funded programs receive at leastpart of their compensationfrom state funds. Therefore, article XVI, section 40, of the Texas Constitution permits such teachers to serve as members of a city council only salary for serviceon the city Ji!$+

JIM MATTOX Attorney General of Texas TOM GREEN FirstAssistantAttorney General
DAVID R. RICHARDS ExecutiveAssistantAttorney General Preparedby Nancy Sutton AssistantAttorney General
APPROVED: OPINION COMMITTEE Rick Gilpin, Chairman Colin Carl SusanGarrison JimMoellinger Nancy Sutton BruceYoungblood

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