Untitled Texas Attorney General Opinion ( 1982 )

The Attorney General of Texas
June 16. 1982
MARK WHITE
Attorney General
Honorable Richard G. Morales, Sr. opinion No. MW-479
Supreme Courl Building
Webb County Attorney
P. 0. Box 12546
Austin. TX. 76711. 2546
1810 San Bernard0 Re: Whether a teacher with
5121475.2501 Laredo, Texas 78040 the Laredo Independent School
Telex 9101674-1367 District is disqualified from
Telecopier 51214754286 serving on the Coordinating
Board, Texas College and
1607 Main St., Suite 1400
University System or the State
Dallas. TX. 75201-4709 Board of Education
2141742.6944
Dear Mr. Morales:
4624 Alberta Ave., Suite 160
El Paso. TX. 79905.2793
You have asked whether a teacher from the Laredo Independent
915/533-3464 School District is disqualified from serving on the Coordinating Board
of the Texas College and University System by section 61.022 of the
Texas Education Code, whether section 11.22 of the code disqualifies a
1220 Dallas Ave., Suite 202
teacher employed by Laredo Junior College from serving on the State
Houston, TX. 77002.6966
713/650@66
Board of Education, and, in the event the answers to the above
questions are yes, whether either section 11.22 or 61.022 violates the
civil rights of a teacher or is a deprivation of equal protection.
606 Broadway, Suite 312
Lubbock. TX. 79401.3479
Section 61.022 of the Texas Education Code is very specific on
8061747.5238
the issue of educators serving on the Coordinating Board of the Texas
College and University System. It states, in relevant part:
4309 N. Tenth, Suite S
McAllen, TX. 76501-1685 No member may be employed professionally for
6121662.4547
remuneration in the field of education during his
term of office.
200 Main Plaza. Suite 400
San Antonio. TX. 76205.2797 The statute is plain and unambiguous; the literal meaning must be
5121225.4191 given to the words. Attorney General Opinion MW-198 (1980). A
teacher works in the "field of education" and is therefore
An Equal Opportunity/ disqualified from service on the Coordinating Board of the Texas
Affirmative Action Employer College and University System.
Section 11.22 of the Texas Education Code provides the
qualifications for membership on the State Board of Education.
Section 11.22(b) states:
No person shall be eligible for election to or
serve on the board if he holds an office with the
State of Texas or any political subdivision
thereof, or holds employment with or receives any
p. 1691
Honorable Richard G. Morales. Sr. - Page 2 (MW-479)
compensation for services from the state or any
political subdivision thereof (except retirement
benefits paid by the State of Texas or the federal
government), or engages in organized public
educational activity. (Emphasis added).
Laredo Junior College is a public junior college. Educ . Code
§61.003(2). A teacher at Laredo Junior College receives compensation
from a political subdivision of the state and takes part in an
“organized public educational activity.” The language of the statute
is clear and capable of no other interpretation; any person who fits
into one of the listed categories is barred from service on the State
Board of Education. -See Attorney General Opinion M-1290 (1972).
It has been argued that the 1972 amendment to article XVI.
section 40 of the Texas Constitution liberalized the application of
incompatibility provisions in the constitution, the statutes, and the
common law. However, the amendment makes only the following
exception:
State 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 es members of the governing bodies of
school districts, cities, towns, or other local
governmental districts; provided, however, that
such State emploree or other individuals shall
receive no salary for serving as members of such
governing bodies. (Emphasis added).
Members of both the State Board of Education and the Coordinating
Board of the Texas College and University System are state officers.
See Educ. Code 0911.24, 61.021, 61.022; Freeman v. Dies, 307 F. Supp.
1028 (N.D. Tex. 1969). The exception to dual office holding is
limited to state employees serving in specified local offices.
Attorney General Opinion MW-149 (1980). See also Attorney General
Opinion H-739 (1975); WW-165 (1957).
Since our answer to your question is that service on the two
state boards is prohibited, we must determine if this prohibition
violates the civil rights of, or deprives equal protection to, a
teacher so barred.
The federal civil rights act has never been held to apply to the
“right to candidacy.” See, e.g., Bullock v. Carter, 405 U.S. 134
(1972). -See 42 U.S.C. 51981, Notes of Decisions.
We turn to the equal protection issue. We note initially that
section 11.22(b) of the Texas Education, Code prohibits a described
class of persons from seeking a particular elective office. Section
61.022. on the other hand, merely limits the group from which the
p. 1692
Honorable Richard G. Morales, Sr. - Page 3 (Mw-479)
governor may appoint a coordinating board member to persons who will
not be “employed professionally for remuneration in the field of
education” during the term of office. We will discuss section
11.22(b) first.
The Supreme Court has upheld election laws which classified
candidates for purposes of access to the ballot on the ground that the
classification served an “important state interest.” Jenness v.
Fortson, 403 U.S. 431 (1971) (petition procedure for independent
candidates who had not won party primary). Compare Bullock V. Carter,
supra (statute denying ballot access on basis of candidate’s ability
to pay large filing fees must be “closely scrutinized”). The
existence of barriers to candidate access to the ballot will compel
close scrutiny where such barriers have a substantial impact on
voters, and where this impact Is related to the economic resources of
the candidate and electorate. Bullock v. Carter, supra. at 144.
State laws which restricted political candidacies of public
employees, without discriminating on the basis of economic resources
or other such imnermlssible considerations. have been sublect to the
“traditional” or - IIrational basis” standard of review. Morial v.
Judiciary Commission of Louisiana, 565 F.2d 295 (5th Cir. 1977). cert.
denied, 435 U.S. 1013 (1978); Wilson v. Moore, 346 F. Supp. 635 (N.D.
W.Va. 1972). Such restrictions on public employees do not violate the
equal protection clause unless they are unreasonably and obviously
arbitrarv and unless no conceivable factual situation would iustifv
the apparently unequal treatment. Wilson v. Moore, supra, it 639:
See also Horial v. Judiciary Commission of Louisiana, supra. at
304-06; Annot., 59 L. Ed. 2d 852 (1979); Annot., 44 A.L.R. Fed. 306
(1979).
In our opinion, section 11.22 of the Education Code is subject to
rational basis scrutiny, and a rational basis for its restrictions can
be shown. Section 11.22(b) prohibits service on the State Board of
Education by any person who holds office with the state or a political
subdivision, or who receives compensation from any such governmental
body. Letter Advisory No. 56 (1973) noted that under this provision a
State Board of Education member represents a particular district in
addition to serving as a state official whose decisions have statewide
effect. His duties are therefore twofold, allowing less time for
other public activities and offering more opportunities for conflict
of interest to arise. Moreover, the extensive activities of a member
of the State Board of Education could create conflicts of interest if
he served the state or a political subdivision as an officer or
employee, or received any compensation therefrom. See also Educ. Code
P8135.03. 135.04 (State Board of Education approves junior college
vocational education programs); Attorney General Opinion H-580 (1975):
These interests provide a rational basis for section 11.22(b) of the
Education Code.
Section 61.022 of the Texas Education Code prevents the
appointment to the Coordinating Board of any person “employed
p. 1693
Honorable Richard G. Morales, Sr. - Page 4 (MW-479)
professionally for remuneration In the field of education during his
term of office." This provision, which concerns an appointive office,
does not restrict anyone's candidacy to elective office or have an
impact on the electorate's choice of a candidate. Since the voters’
and candidate's interests form the basis of equal protection attacks
on ballot access requirements, the Supreme Court cases on this subject
are not necessarily applicable. Section 61.022 need only meet the
usual rational basis test. If any state of facts will sustain the
statute, it will be presumed the legislature had those facts in mind
when it enacted the statute. McDonald v. Board of Election
Commissioners of Chicago, 394 U.S. 802 (1969); Ex parte Tigner, 132
S.W.2d 885 (Tex. Crim. App. 1939).
The Coordinating Board has considerable direct control over state
institutions of higher education, including junior colleges. Educ.
Code 0161.051-.0631. It is also required to encourage cooperation
between public and private institutions, and to consider the availa-
bility of degree and certificate programs in private institutions of
higher education in determining programs for public institutions.
Educ. Code 561.064. Thus, even an educator employed by a private
institution of higher education could find that his responsibilities
as a member of the Coordinating Board conflict with his interests in
his employment. The Coordinating Board also is empowered to order the
initiation, consolidation, or elimination of teacher certification
programs at institutions of higher education. Educ. Code 961i051(e).
See also Educ. Code 113.039(a). This power would have some impact on
the supply of teachers for public elementary and secondary 'schools and
the private institutions that compete with them. Consequently; we
believe there is a rational basis for the prohibition in section
61.022, and that it does not violate the equal protection clause.
SUMMARY
Section 61.022 of the Texas Education Code
prohibits teachers employed by school districts
from serving on the Coordinating Board of the
Texas College and University System; section 11.22
of the code bars teachers employed in a public
junior college from serving on the State Board of
Education. The classifications created by the
legislature do not violate the civil rights of, or
deprive equal protection to, a teacher so barred..
s+/
MARK WHITE
Attorney General of Texas
JOEN W. FAINTER, JR.
First Assistant Attorney General
p. 1694
Honorable Richard G. Morales, Sr. - Page 5 (MU-479)
RICHARD E. GRAY III
Executive Assistant Attorney General
Prepared by Susan L. Garrison 6
Patrlcla Hinojosa
Assistant Attorneys General
APPROVED:
OPINION COMMITTEE
Susan L. Garrison, Chairman
Jon Bible
Rick Gilpin
Patricia Hlnojosa
Jim Moellinger
p. 1695