OFFICE OF THE ATTORNEY GEKERAL . STATE OF TEXAS
JOHX CORNY-N
November 19,2002
The Honorable Florence Shapiro Opinion No. JC-0577
Chair, Senate Committee on State Affairs
Texas State Senate Re: Whether an adjunct professor employed by a
P.O. Box 12068 state university is a “schoolteacher” for purposes
Austin, Texas 7871 l-2068 of article XVI, section 40 of the Texas
Constitution (RQ-0564-JC)
Dear Senator Shapiro:
You have requested our opinion regarding a recent amendment to the “state employee”
proviso to article XVI, section 40 of the Texas Constitution. Specifically, you ask whether the
provision that permits a “schoolteacher” to receive a salary for serving as a member of the governing
board of a local governmental district includes within its ambit instructors or professors employed
by a state university. For the reasons set forth below, we conclude that it does not, and that as a
result, a university professor may serve on the governing board of a local governmental district, but
may not receive a salary for such service.
Article XVI, section 40 of the Texas Constitution prohibits the simultaneous holding of more
than one “office of emolument.” See TEX. CONST.art. XVI, 8 40(a). Since 1972, it has also included
a proviso that allows “[sltate 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” to serve “as members of the governing bodies of school districts, cities, towns, or other
local governmental districts.“’ Id. 8 40(b). The provision further states, however, that “[sluch state
employees or other individuals may not receive a salary for serving as members of such governing
bodies.” Id. In 2001, the voters adopted an amendment to the article XVI, section 40 proviso to
permit certain persons to receive compensation for service as members of local governing boards.
The proviso now states:
(b) State employees or other individuals who receive all or part of
their compensation either directly or indirectly fi-om 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. Such State employees
‘A county has been held not to constitute a “local governmental district” within the meaning of article XVI,
section 40 of the Texas Constitution. County of Maverick v. Ruiz, 897 S.W.2d 843,847 (Tex. App.-San Antonio 1995,
no writ); Tex. Att’y Gen. Op. No. JC-0074 (1999) at 2.
The Honorable Florence Shapiro - Page 2 (JC-0577)
or other individuals may not receive a salary for serving as members
of such governing bodies, except that a schoolteacher, retired
schoolteacher, or retired school administrator may receive
compensation for serving as a member of a governing body of a
school district, city, town, or local governmental district, including
a water district created under Section 59, Article xylj or Section 52,
Article III.
Id. (emphasis added). You ask whether the term “schoolteacher” may be read to include an
instructor or professor at a state university.*
We initially note that the construction of constitutional provisions is generally governed by
the same rules as those governing the interpretation of statutes and codes. See Booth v. Strippleman,
61 Tex. 378 (Tex. 1884); accord Rooms With A View, Inc. v. Private Nat ‘1Mortgage Ass ‘n, Inc., 7
S.W.3d 840,844 (Tex. App.-Austin 1999, pet. denied); Tex. Att’y Gen. Op. No. JC-0043 (1999).
The Code Construction Act provides that “[wlords and phrases that have acquired a technical or
particular meaning, whether by legislative definition or otherwise, shall be construed accordingly.”
TEX. GOV’T CODEANN. fj 311 .Ol l(b) (V emon 1998). The common meaning of “schoolteacher” is
“a person who teaches in a school below the college level.” AMERICAN HERITAGE DICTIONARY 1560
(4th ed. 2000). Furthermore, the Texas Education Code refers to instructors at the elementary and
secondary level as “teacher[s],” while it denominates instructors at the college level as “faculty
member[ s] .” Compare TEX. EDUC.CODE ANN. 8 2 1.10 1 (Vernon 1996)’ with id. 8 5 1.101. But the
clearest example of what the legislature intended by adopting the resolution placing the amendment
to article XVI, section 40 on the ballot is provided by the legislative history of the resolution.
“In interpreting a statute, a court shall diligently attempt to ascertain legislative intent and
shall consider at all times the old law, the evil, and the remedy.” TEX. GOV’T CODE ANN. 6 3 12.005
(Vernon 1998). As introduced, House Joint Resolution 85 would have amended the constitutional
provision to read, “except that a schoolteacher or retired schoolteacher may receive compensation
for serving as a member of a governing body of a water district created under Section 59, Article
XVI or Section 52, Article III.” Tex. H.J. Res. 85, 77th Leg., R.S. (2001) (introduced version,
section 1(b)). The ballot proposition included with the joint resolution, however, was quite different:
SECTION 2. This proposed constitutional amendment shall be
submitted to the voters at an election to be held November 6’2001.
The ballot shall be printed to provide for voting for or against the
proposition: “The constitutional amendment to allow current and
retired public school teachers and college professors, and retired
public school administrators to receive compensation for serving on
the governing bodies of school districts, cities, towns, or other local
government districts.”
Tex. H.J. Res. 85’77th Leg., R.S. (2001) (introduced version, section 2) (emphasis added).
*Letter fromHonorable Florence Shapiro, Chair, Senate Committee on State Affairs, to Honorable John Comyn,
Texas Attorney General (June l&2002) (on file with Opinion Committee).
The Honorable Florence Shapiro - Page 3 (JC-0577)
The enrolled version of the resolution conforms to the amendment adopted by the voters on
November 6’2001. But section 2 of the resolution’s enrolled version, which sets forth the required
ballot language, differs greatly from that of the introduced version:
SECTION2. This proposed constitutional amendment shall be
submitted to the voters at an election to be held November 6,200l.
The ballot shall be printed to provide for voting for or against the
proposition: “The constitutional amendment to allow current and
retired public school teachers and retired public school administrators
to receive compensation for serving on the governing bodies of
school districts, cities, towns, or other local governmental districts,
including water districts.”
Tex. H.J. Res. 85, 77th Leg., R.S. (2001) (enrolled version, section 2). The change in the ballot
language was the result of an amendment to the resolution offered by Representative Fred Bosse and
adopted by the House of Representatives on April 30,200l. The amendment reads:
Amend HJR 85 as follows:
(1) On page 2, strike lines 17 and 18 and substitute: “as members
of such governing bodies, except that a schoolteacher, retired
schoolteacher, or retired school administrator mav receive
compensation for serving as a”.
(2) On page 3, line 7, strike “and college professors,“.
(3) Amend the caption of the resolution to conform to the body of the
resolution.
H.J.oFTEX.,77thLeg., R.S. 1666 (2001) (amendment by Representative Bosse made April 30,200 1
on the Floor of the House). In testimony, Representative Bosse confirmed the removal of the term
“college professors” Tom the ballot language:
REP.BOSSE:There was a discrepancy between the ballot language
and the bill itself, and this narrows it down to assure that it only
applies to schoolteachers, retired schoolteachers, and retired school
administrators.
Debate on Tex. H.J. Res. 85 on the Floor of the House, 77th Leg., R.S. (Apr. 30, 2001) (tape
available from House Video/Audio Department).
The Honorable Florence Shapiro - Page 4 (JC-0577)
Finally, an analysis of proposed constitutional amendments by the House Research
Organization, issued on August 13, 2001, contains the following reference to ballot proposition
eleven:
As filed, HJR 85 would have worded the ballot proposition to allow
college professors, as well as school teachers, retired teachers, and
retired school administrators, to receive pay for serving on a local
government board. The House-approved version of HJR 85 would
have limited the change to teachers serving on water district boards,
but the Senate amended the proposal to include the governing boards
of school districts, cities, towns, and other local governments as well.
HOUSE RESEARCH ORGANIZATION,TEX. HOUSE OF REPRESENTATIVES, Focus REPORT,
CONSTITUTIONALAMENDMENTSPROPOSEDFORNOVEMBER2001 BALLOT 33-35(Aug.13,2001)
(analysis of Proposition 11, HJR 85). We conclude that the term “schoolteacher” as used in the
amended version of article XVI, section 40 does not include instructors or professors employed by
a state university. Accordingly, a university professor may serve on the governing board of a local
governmental district, but may not receive a salary for such service.
The Honorable Florence Shapiro - Page 5 (JC-0577)
SUMMARY
The term “schoolteacher” in article XVI, section 40 of the
Texas Constitution does not include instructors or professors
employed by a state university. Thus, a university professor may
serve on the governing board of a local governmental district, but
may not receive a salary for such service.
4c
V truly yours,
CAT
JOkN CORNYN
Attorney General of Texas
HOWARD G. BALDWIN, JR.
First Assistant Attorney General
NANCY FULLER
Deputy Attorney General - General Counsel
SUSAN DEMON GUSKY
Chair, Opinion Committee
Rick Gilpin
Assistant Attorney General, Opinion Committee