ATTORNEY GENERAL OF TEXAS 

GREG ABBOTT 

Mr. Robert Scott 

Commissioner of Education 

Texas Education Agency 

1701 North Congress Avenue 

Austin, Texas 78701-1494 

Dear Commissioner Scott: 

November 30, 2009 

Opinion No. GA-0749 

Re: Application of Education Code section 11.063 

to former school district trustee placed in his district 

by a school staffing company (RQ-0806-GA) 

You request an opinion on Education Code section 11.063, which provides that "[a] trustee 

of an independent school district may not accept employment with that school district until the 

first anniversary ofthe date the trustee's membership on the board ends.'" TEx. EDUC. CODE ANN. 

§ 11.063 (Vernon 2006). You inquire on behalf of the Red Oak Independent School District (the 

"ROISD" or "district") about the application of this statute to a trustee who resigned from the 

ROISD Board of Trustees and is employed by a third party that contracts with the district for staffing 

purposes. 2 Request Letter at 1; Attachment at 1-2. Specifically, you ask whether section 11.063 

prohibits the former ROISD trustee from being placed at the ROISD school district by a third-party 

employer "before the first anniversary of the date the trustee's membership on the board ended." 

Attachment at 2; TEx. EDUC. CODE ANN. § 11.063 (Vernon 2006). 

Initially, we note that the answer to this question will depend upon the facts of the 

relationship among the district, the third-party company, and the former trustee. We cannot resolve 

fact questions in an attorney general opinion, and thus we cannot give a definitive answer to your 

question. See Tex. Att'y Gen. Op. Nos. GA-0459 (2006) at 3-4, 0-3382 (1941) at 5. We can, 

however, generally advise you about the circumstances under which section 11.063 applies. 

We begin with the language of section 11.063. This statute bars a former trustee from 

accepting "employment" with the school district. TEX. EDUC. CODE ANN. § 11.063 (Vernon 2006). 

Education Code chapter 11 does not define "employment" nor do we find a definition of this term 

in any relevant administrative rule. Words in statutes are to be read in context and construed 

according to the rules of grammar and common usage. See TEX. GOV'T CODE ANN. § 311.011(a) 

lSee Request Letter at 1 (available at http://www.texasattomeygeneral.gov). 

2See Letter on behalf of the ROISD to Robert Scott (attached to Request Letter) [hereinafter Attachment]. 
Mr. Robert Scott - Page 2 (GA-0749) 

(Vernon 2005). Dictionaries have defined "[ e ]mployment" as "[t]he state of being employed.,,3 See 

Powell v. Stover, 165 S.W.3d 322, 326 (Tex. 2005); Tex. Dep't of Protective & Regulatory Servs. 

v. Mega Child Care, Inc., 145 S.W.3d 170, 196n.19 (Tex. 2004)(courtswillconsultadictionary 

to determine the common meaning of a word). A person who accepts employment with a school 

district becomes the employee of the district.4 School district personnel are chosen by the school 

board on recommendation ofthe superintendent of the school district, unless final authority for those 

decisions is delegated to the superintendent. See TEx. EDUC. CODE ANN. § 11.1513(a)(1)-(2), (b) 

(Vernon Supp. 2008) (school board employment policy). The superintendent is also responsible for 

the assignment, supervision, and evaluation of district personnel. See id. § 11.201 (d)(2). 

Prior opinions of this office have considered, in connection with provisions other than section 

11.063, whether an individual performing services for the school district is an employee of the 

district. Attorney General Opinion GA-0127 concluded that a trustee was not an employee of the 

district where a private umpires' association assigned him to officiate ball games in his school 

district. See Tex. Att'y Gen. Op. No. GA-0127 (2003) at 2 (addressing common-law doctrine of 

incompatibility). In reaching this conclusion, the opinion noted that the trustee was not appointed 

to serve as an umpire by the board of trustees, and the district had no supervisory authority over him. 

See id. 

Attorney General Opinion GA-0018 addressed contracts between school districts and 

commercial enterprises that employed retired teachers and supplied them to the school districts on 

a temporary basis. See Tex. Att'y Gen. Op. No. GA-0018 (2003) at 1; see also TEx. EDUC. CODE 

ANN. § 11.157 (Vernon 2006) (a board of trustees of an independent school district may contract 

with a public or private entity for educational services). The opinion considered whether a retired 

teacher working at a school under such arrangement would revoke his retirement benefits pursuant 

to Texas Government Code section 824.005(b), which provides for revocation "if the person 

becomes employed in any position in a public school" during the month after his retirement. TEx. 

GOV'TCODEANN. § 824.005(b)(Vernon2004). AttorneyGeneralOpinionGA-0018 concluded that 

the contract in question would not cause the retired educator to lose his retirement benefits because 

the school district had contracted with the third-party commercial enterprise and not the retiree. Nor 

was the retired teacher a school district employee within Education Code section 22.051(a), which 

provides a limited grant of immunity for a professional employee of a school district. 5 See Tex. Att'y 

Gen. Op. No. GA-0018 (2003) at 3-4 (discussing predecessor of section 22.0511(a)). 

A judicial decision under the whistleblower statute also addressed the distinction between 

a school district employee and an individual hired by a third party to provide services for a school 

3BLACK' S LAW DICTIONARY 604 (9th ed. 2009); MERRIAM-WEBSTER'S COLLEGIATE DICTIONARY 408 (lIth 

ed.2003). 

4MERRlAM_ WEBSTER'S COLLEGIATE DICTIONARY 408 (lith ed. 2003) ("one employed by another usu. for wages 

or salary"). 

5Section22.051 was renumbered to section 22.0511 after GA-0018 was issued. See Act ofJune 1,2003, 78th 

Leg., R.S., ch. 204, § 15.01, sec. 22.0511, 2003 Tex. Gen. Laws 847, 890. 
Mr. Robert Scott - Page 3 (GA-0749) 

district. See Alaniz v. Galena Park Indep. Sch. Dist., 833 S.W.2d 204, 205-07 (Tex. App-Houston 

[14th Dist.] 1992, no writ); see also TEx. GOV'T CODE ANN. §§ 554.001-.010 (Vernon 2004) 

(whistleblower statute). Like the two attorney general opinions, Alaniz determined whether an 

individual who performed services for a school district was a district employee by considering a 

number of factors related to his employment, including who had authority to supervise him. See 

Alaniz, 833 S. W.2d at 206. The Alaniz court held that an individual who was under contract with 

a private custodial company that assigned him to perform custodial services at a school district was 

not a "public employee" within the definition of that term in the whistleblower statute. See id. at 

205-07; see also TEx. GOV'T CODE ANN. § 554.001(4) (Vernon 2004) (defining a "[P]ublic 

employee" as "an employee or appointed officer other than an independent contractor who is paid 

to perform services for a state or local governmental entity"). In reaching its decision, the court 

found it significant that the custodian contracted only with the private company, and that the contract 

described his duties, set his compensation, and provided that the company would supervise him.6 

See Alaniz, 833 S.W.2dat206. In summary, the custodian was an employee of the private company, 

which provided services to the district as an independent contractor, and not a school district 

employee. 

In reaching a determination as to whether a company's placement of a former trustee at the 

district prior to the first anniversary of the date the trustee's membership on the board ended would 

violate section 11.063, a court would likely examine the relationship between the parties in order to 

determine whether the trustee was actually employed by the school district or the third party. If all 

the relevant facts, such as contract terms, control and supervision, and source of payment, showed 

that an individual was employed by a third-party company and not by the school district, we believe 

a court would likely conclude that his employment would not be subject to the restriction in 

Education Code section 11.063, even though the private company assigned him to perform services 

for the school district. See Alaniz, 833 S.W.2d at 206; Tex. Att'y Gen. Op. Nos. GA-0127 (2003) 

at 3 n.5, GA-OO 18 (2003) at 3-4. If, however, the relevant facts demonstrated that the former trustee 

was employed by the school district, section 11.063 would bar him from such employment with the 

school district until the first anniversary of the date his membership on the board ended. See TEx. 

EDUC. CODE ANN. § 11.063 (Vernon 2006). 

60ther factors cited by the court included that the private company hired, paid wages, and withheld social 

security and income tax for the individual, and it solely directed and supervised his work, provided him with equipment, 

and discharged him. See Alaniz, 833 S.W.2d at 206. 
Mr. Robert Scott - Page 4 (GA-0749) 

SUMMARY 

Section 11.063 of the Education Code bars a school district 

trustee from accepting employment with the school district until the 

first anniversary ofthe date his membership on the school board ends. 

If, after examining the relationship among the district, the third-party 

company and the trustee, a court were to find that a third-party 

company employed the former trustee and he was not employed by 

the school district, we believe that a court would likely conclude that 

his employment would not be barred by Education Code section 

11.063, even though the private company assigned him to perform 

services for the school district. 

ANDREW WEBER 

First Assistant Attorney General 

JONATHAN K. FRELS 

Deputy Attorney General for Legal Counsel 

NANCY S. FULLER 

Chair, Opinion Committee 

Susan L. Garrison 

Assistant Attorney General, Opinion Committee