JIM MATTOX 

Attorney General 

Supreme Court Building 

P. 0. Box 12546 

Auslln, TX. 70711- 2546 

5,2/475-2501 

Telex 9101674-1367 

Telecopier 51214750266 

714 Jackson. Suite 700 

Dallas, TX. 75202.4605 

2141742-6944 

4624 Alberta Ave.. Suite 160 

El Paso, TX. 79905-2793 

91515333464 

01 Texas, Suite 700 

iiouston, TX. 770023111 

7131223-5886 

606 Broadway, Suite 312 

Lubbock, TX. 79401-3479 

606/747-5236 

4309 N. Tenth. Suite B 

McAllen. TX. 76501-1665 

5121682.4547 

200 Main Plaza, suite 4Kl 

San Antonio, TX. 78205-2797 

5121225-4191 

An Equal OppOrtunityI 

Affirmative Action Employer 

The Attorney General of Texas 

December 30, 1983 

Honorable Thomas F. Lee 

District Attorney 

P. 0. Box 1405 

Del Rio, Texas 78840 

Opinion No. JM-118 

Re: Whether article XVI, section 

40 of the Texas Constitution 

prevents a school teacher working 

under a federally funded program 

from receiving compensation for 

service as a city councilman 

Dear Mr. Lee: 

You have asked whether article XVI, section 40, of the Texas 

Constitution prevents public school teachers who work under federally 

funded programs from receiving compensation for service as city 

councilmen. We conclude that since such persons receive at least part 

of their compensation from state funds, they may serve simultaneously 

as public school teachers and as members of a city council only if 

they receive no salary for service on the city council. 

Article XVI, section 40, of the Texas Constitution provides, in 

pertinent part, that 

[SItate 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 for serving as members of such 

governing bodies. 

Since it is clear that a public school teacher may not receive a 

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 is whether the teachers you describe are compensated by state 

funds within the meaning of article XVI, section 40. - See Attorney 

General Opinion MU-230 (1980). 

p. 498 
Honorable Thomas F. Lee - Page 2 (JM-118) 

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, title 5, subtitle - 

D, chapter 1, sections 551-560, codified as 20 USCA 853801 et seq. 

Funding from the federal government for these programs is deposited in 

the state treasury in H.E.W. Fund No. 148 and is appropriated to the 

Texas Central Education Agency by the Texas Legislature. See General 

Appropriations Act, Acts 1983, 68th Leg., ch. 1095, art. III, $1, at 

111-2. The funds in question are administered by the Texas Education 

Agency and forwarded to the school district by state warrants. 

Federal funds deposited in the state treasury become state funds. - See 

Attorney General Opinion 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, 

Bilingual Education Program. See Bilingual Education Act, codified as 

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 administered by a state agency, 

and each teacher makes the employee's contribution to 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 for money provided by 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 available money to 

pay the required state contribution to the retirement system. When an 

employer receives money for the state contribution from an application 

made in accordance with that provision, 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 

General Appropriations Act, 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); Letter Advisory No. 154 (1978). 

Therefore, we conclude that each of the teachers in question 

receives part of his compensation indirectly from funds of the state 

p. 499 
Honorable Thomas F. Lee - Page 3 (~~-118) 

and may serve on a city council only if he receives no salary for 

service on the city council. 

SUMMARY 

Certain public school teachers who work under 

particular federally funded programs receive at 

least part of their compensation from 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 service on the Ji!$+ city

JIM MATTOX 

Attorney General of Texas 

TOM GREEN 

First Assistant Attorney General 

DAVID R. RICHARDS 

Executive Assistant Attorney General 

Prepared by Nancy Sutton 

Assistant Attorney General 

APPROVED: 

OPINION COMMITTEE 

Rick Gilpin, Chairman 

Colin Carl 

Susan Garrison 

Jim Moellinger 

Nancy Sutton 

Bruce Youngblood 

p. 500