The Honorable M. L. Brockette Opinion No. H- 739
Commissioner of Education
Texas Education Agency Re: Whether cpntrol of the
201 East Eleventh Street Texas School for the Blind may
Austin, Texas 78701 be vested in a board composed
of five members of the State
Board of Education, and related
questions.
Dear Commissioner Brockette:
You have requested our opinionregarding section 20 of House Bill
1673, Acts l-975, 64th Leg., ch. 734,~. 2377 (hereafter the Act) which &xtensivety
amends the laws relating to educational services for the blind and visually
handicapped.
Section 11.06 of the Texas Education Code formerly granted to the Central
Education Agency “exclusive jurisdiction atid control over the Texas School
for the Blind. ” By the terms of section 11. 24, the State Board of Education
has:
specific responsibility for adopting
policies, enacting regulations, and
establishing general rules for carry-
ing out the duties placed on it or the
Central Education Agency by the
Legislature.
Pursuant to such authority, the State Board of Education has heretofore acted
as the governing body of the Texas School for’the Blind.
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The Honorable M. L. Brockette - page two (H-739)
Section 20 of the Act adds section 11.C61to the Education Code and es-
tablishes
as the principal governing body
for the Texas School for the Blind
a five-member board consisting of
five individuals designated by the
membership of the State Board of
Education from among its member-
ship to serve in this capacity and
to be known as the Board of the
Texas School for the Blind.
You ask first whether the Legislature may constitutionally confer this authority
upon less than the full membership of the State Board of Education. Article 7,
section 8 of the Texas Constitution provides:
The Legislature shall provide by
law for a State Board of Education,
whose members shall be appointed or
elected in such manner and by such
authority and shall serve for such
terms as the Legislature shall pre-
scribe not to exceed six years. The
-
said board shall perform such duties
as may be prescribed by law. (Emphasis
added).
In our opinion, the Constitution does not preclude the Legislature from vesting
control of the Texas School for the Blind in a. board composed of five members
of the State Board of Education. The School for the Blind is not created by the
Constitution, and we believe that the Legislature may provide for its governance
by any reasonable means.
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‘l‘hr Honorable M. L. Brockctte - page three (U-739)
You also ask whether any conflict or incompatibility would arise as to
the five members of the State Board of Education who constitute the Board of
the Texas School for the Blind. Article 16, section 40 of the Texas Constitution
prohibits an individual from holding simultaneously more than one “Civil Office
of emolument. ” A similar questi.on arose in Texas Turnpike Authority v.
Shepperd, 279 S. W. 2d 302 (Tex. Sup. 1955)) where the Supreme Court upheld a
provision of the Turnpike Projects Act which appointed three members of the
State Highway Commission as ex-officio directors of the Texas Turnpike
Authority. The Court, in holding that there was no violation of article 16, sec-
tion 40, declared that “[t]he Legislature may impose upon statutory officials ex-
tra duties, ” and noted that the State Tax Board, composed of the Comptroller,
the Secretary of State, and the Attorney General, had been upheld against a
similar constitutional attack. 279 S. W. 2dat 388.The Court added that there was
no possibility of incompatibility or conflict because the duties imposed upon the
Commissioners as directors of the Toll Road Authority conformed to the general
duties imposed upon the Highway Commission.
Similarly, the five members of the State Board of Education designated
by the Abtas the Board of the Texas School for the Blind have no ‘duties
apart from those previously placed upon the Central Education Agency and the
State Board of Education by the Texas Education Code. See also
-- Jordan v.
Crudgington, 231 S. W. 2d 641, 646 (Te x. Sup. 1950); Jones v. Alexander, 59 S.
W. 2d 1080, 1082 (Tex. Sup. 1933); Allen v. Davis, 333 S. W. 2d 441 (Tex. Civ.
APP. --Amarillo 1960,no writ). Accordingly, it is our opinion that no pro-
hibition under article 16, section 40 of the Texas Constitution or incompatibility
under the common law doctrine would arise from a member of the State Board
of Education simultaneously serving on the Board of the Texas School for the
Blind.
Your last question inquires about the potential liability of members of
the Board of the Texas School for the Blind which might arise by virtue of their
performance of their duties prescribed by law. We assume you refer to civil
rights actions based on an act performed under color of state law. The United
States Supreme Court has recently dealt at length with this question as it relates
to members of local school boards. In Wood v. Strickland, 95s. Ct.992(1975), the
Court held that, on the basis of common law tradition and public policy, school
board members are entitled to a qualified good faith immunity from liability for
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The Honorable M. L. Brockette - page four (H-739)
damages under 42 U.S. C. 5 1983. They may waive such immunity if they
“knew or should have known that the action [they] took within [‘fli&r] sphere
of official responsibility would violate the constitutional rights of the student
affected, or if [they] took the action with the malicious intention to cause ‘a
deprivation of constitutional rights or other injury to the student.” 95 S. Ct.
at 1001 The test is one of good faith, and a
compensatory award will be appropriate
only if the school [officials] acted with such
an impermissible motivation or with such
disregard of the student’s clearly established
constitutional rights that [their] action cannot
reasonably be characterized as being in good
faith. 95 S. Ct. at 1001.
Although we are of course unable to speculate on particular instances in which
a civil rights action might be brought against the Board, we believe that, on
the basis of the Supreme Court’s clearly formulated standard in Wood, the mem-
bers of the Board of the Texas School for the Blind may confidently perform their
duties without fear of liability so long as they do so in good faith.
SUMMARY
The Legislature may constitutionally
vest control of the Texas School for the
Blind in a board composed of five mem-
bers of the State Board of Education.
No incompatibility or conflict under
article 16, section 40 of the Texas Con-
stitution would arise from a member of
the State Board of Education simultaneously
serving on the Board of the Texas School
p. 3144
. .
The Honorable M. L. Brockette - page five (H-739)
for the Blind. Members of the Board
of the Texas School for the Blind have
a qualified immunity from liability for
damages, so long as they perform
their duties in good faith.
AVery truly yours,
Attorney General of Texas
S,/ ~~
4
First Assistant
C. ROBERT HEATH, Chairman
Opinion Committee
jad:
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