Untitled Texas Attorney General Opinion ( 2007 )

ATTORNEY O F TEXAS
GENERAL
GREG A B B O T T
March 12,2007
The Honorable Rodney Ellis Opinion No. GA-0530
Chair, Committee on Government Organization
Texas State Senate Re: Whether article XVI, section 40(b) of
Post Office Box 12068 the Texas Constitution applies in certain
Austin, Texas 787 11-2068 circumstances (RQ-0530-GA)
Dear Senator Ellis:
You ask whether article XVI, section 40(b) of the Texas Constitution, which "relates to the
compensation of persons who serve as members of governing bodies and also receive all or part of
their compensation from the State of Texas," applies in certain circumstances.' See TEX.CONST.art.
XVI, 5 40(b). Your question is based upon issues raised by the former Laredo City Attorney (the
"City Attorney") concerning four members ofthe Laredo City Council who receive all or part of their
compensation from state funds.2
I. Factual Background
The United Independent School District ("UISD") employs three of the Laredo City Council
members, and Texas A&M International University ("TAMIU") employs a fourth. See Request
Letter, supra note 2, at 2-3. The City Attorney described the four council members' employments:
1. Council Member A is employed by the [UISD] . . . as a Registrar
and as an Assistant Boys Track Coach. Based on the fact that he is
an assistant coach teaching physical education, and that he is not
required to be certified as a teacher, similar to substitute teachers, the
city pays him for his services as a city council member.
2. Council Member B is also employed by the UISD . . . [as] an
administrator, specifically, the Support Services Manager. He is not
'Letter from Honorable Rodney Ellis, Chair, Committee on Government Organization, Texas State Senate, to
Honorable Greg Abbott, Attorney General of Texas (Sept. 11,2006) (on file with the Opinion Committee, also available
at http:l/www.oag.state.tx.us).
2SeeLetter from Jaime L. Flores, Laredo City Attorney, to Honorable Judith Zaffirini, Texas State Senate (Aug.
16,2006) (on file with the Opinion Committee, also available at http:llwww.oag.state.tx.us)[hereinafter Request Letter].
The Honorable Rodney Ellis - Page 2 (GA-0530)
paid by the city for his services as a city council member; but he is
reimbursed for any actual expenses that he incurs that are related to
his service as a member of the council.
3. Council Member C is also employed by the UISD . . . [as] an
administrator, specifically the Director of UISD's Support Services
Department. He is not paid by the city for his services as a city
council member; but he is reimbursed for any actual expenses that he
incurs that are related to his service as a member of the council.
4. Council Member D is employed by [TAMIU as] a full-time
professor teaching marketing and possibly other courses at the
University. He is not paid for his services as a city council member;
he is only reimbursed for any actual expenses that he incurs that are
related to his service as a member of the council.
Id.
11. Article XVI, Section 40(b) of the Texas Constitution
Article XVI, section 40(b) expressly permits an individual who receives compensation from
the State of Texas to serve as a member of the governing body of a local governmental entity but
prohibits the individual from receiving a salary for serving on the governing body unless the
individual receives compensation from the state for work performed in certain capacities:
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 as members of the governing bodies of school districts,
cities, towns, or other local governmental districts. Such State
employees or other individuals may not receive a salary for serving
as members of such governing bodies, except that:
(I) a 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
. . . ; and
(2) a faculty member or retired faculty member of a
public institution of higher education may receive compensation for
serving as a member of a governing body of a water district . . . .
TEX.CONST.art. XVI, 5 40(b). Employees of public school districts and public institutions of higher
education receive "all or part of their compensation either directly or indirectly from funds of the
The Honorable Rodney Ellis - Page 3 (GA-0530)
State of Texas" and thus are subject to article XVI, section 40(b). See Tilley v. Rogers, 405 S.W.2d
220, 224 (Tex. Civ. App.-Beaumont 1966, writ ref d n.r.e.); Tex. Att'y Gen. Op. No. JM-1266
(1990) at 3.
111. Analysis
The City Attorney did not ask about Council Member A, but assumed that his position as a
coach renders him a "schoolteacher" for purposes of article XVI, section 40(b)(l). TEX.CONST.art.
XVI, § 40(b)(l); see Request Letter, supra note 2, at 2. He suggested that Council Member A, who
he told us is assigned "duties and responsibilities and . . . is evaluated and paid for his performance
as a Registrar and as an Assistant Boys Track Coach[,] . . . teach[es] physical education" in his
coaching position. Request Letter, supra note 2, at 2. The acting city attorney has informed us that
Council Member A's coaching duties, and thus "teaching [ofl physical education," occur outside of
regular school hours, but we have not been informed whether members of the track team may receive
credit for their participation in the track p r ~ g r a m Further,
.~ the City Attorney indicated that, because
of this teaching role, Council Member A properly may receive a salary for his city council service.
See id. He first asked two questions about Council Members B and C, which can be combined and
summarized as follows: if Council Member B or C were to "acquire" positions as "'coach[es]' of
UIL (University Interscholastic League) events coaching UIL teams for math, debate, or other UIL
events" in addition to their administrative positions, would they also qualify as "schoolteachers" for
purposes of article XVI, section 40(b)(l) such that they could receive a salary for their city council
service? Id. at 3. To respond to questions about Council Members B and C, it is necessary to
examine the assumption that Council Member A is a schoolteacher for purposes of article XVI,
section 40(b)(l) solely on the basis of his coaching duties.
A. Whether a coach is a schoolteacher for purposes of article XVI, section 40(b)(l)
The key to resolving this issue is to determine the definition of the term "schoolteacher" for
purposes of article XVI, section 40(b)(l). A court presumes that the language of the Texas
Constitution has been "carefully selected" and thus construes constitutional terms "as they are
generally understood." Spradlin v. Jim Walter Homes, Inc., 34 S.W.3d 578, 580 (Tex. 2000). A
court relies "heavily on the plain language of the Constitution's literal text." Id. In interpreting
constitutional provisions and terms, a court uses "the same guidelines . . . as [it uses] in interpreting
statutes." Rooms with a View, Inc. v. Private Nut '1 Mortgage Ass 'n, 7 S.W.3d 840, 844 (Tex.
App.-Austin 1999, pet. denied).
No court has construed the term "schoolteacher" as it is used in article XVI, section 40(b)(l).
In Smith v. Alanis a Texas court concluded, in the context of Education Code chapter 21, that a
person hired as head football coach and athletic director, who was a full-time professional employee
required to hold a teaching certificate, is subject to the statutory requirement that teachers new to a
school district be employed under a probationary contract, but that case is not dispositive here. See
Smith v. Alanis, No. 03-01-00713-CV, 2002 WL 1729289, at *3-*4 (Tex. App.-Austin July 26,
3SeeTelephone Interview with Valeria Acevedo, Acting Laredo City Attorney, in Laredo, Tex. (Jan. 29,2007).
The Honorable Rodney Ellis - Page 4 (GA-0530)
2002, no pet.) (not designated for publication); see also TEX.EDUC.CODEANN. $5 21.102(a), .202(a)
(Vernon 2006) (requiring the use of probationary contracts in certain circumstances). First, the coach
in Smith was a full-time professional employee who was required to hold a teaching certificate, while
the coach about whom the City Attorney asked is not required to hold a teaching certificate and in
fact does not. See Smith, 2002 WL 1729289, at "4; Request Letter, supra note 2, at 2. And second,
the statutory provisions requiring new teachers to be employed under probationary contracts serve
a purpose different from article XVI, section 40(b)(l) of the Texas Constitution. Compare TEX.
EDUC.CODEANN.$5 2 1.102(a), .202(a) (Vernon 2006) (requiring the use of probationary contracts
for new teachers), with TEX.CONST.art. XVI, 5 40(b)(l) (relating to a schoolteacher's service on a
governmental body).
This office has considered the meaning ofthe term "schoolteacher" twice. In 2002 this office
determined that the term does not encompass "an instructor or professor at a state university," relying
in part on the plain and common meaning of the term as reflected in the dictionary, which describes
a schoolteacher as "a person who teaches in a school below the college level." Tex. Att'y Gen. Op.
No. JC-0577 (2002) at 2 (quoting AMERICAN HERITAGE DICTIONARY 1560 (4th ed. 2000)); see also
Mikael v. Equitable Sec. Co., 74 S.W. 67, 68 (Tex. Civ. App. 1903, writ ref d) (stating that an
undefined constitutional term "should be given its ordinary and usual signification"). More recently,
a 2006 opinion, GA-0394, concludes that the term "schoolteacher" includes a substitute t e a ~ h e r , ~
again relying in part on similar dictionary definitions. See Tex. Att'y Gen. Op. No. GA-0394 (2006)
at 2 (quoting NEWOXFORD AMERICAN DICTIONARY 1526 (200 1); AMERICAN HERITAGE DICTIONARY
1560 (4th ed. 2000)). In addition to relying on dictionary definitions, both opinions examined the
history of the constitutional provision, adopted in 2001, and GA-0394's discussion in particular
provides some guidance here. See Tex. Att'y Gen. Op. Nos. GA-0394 (2006) at 2-3, JC-0577
(2002) at 2-4. From the legislative history and the information put before the voters, Attorney
General Opinion GA-0394 determines that "one purpose of the amendment [to article XVI, section
40(b)] was to enlarge the group of persons available for service on local governmental bodies." Tex.
Att'y Gen. Op. No. GA-0394 (2006) at 2. "Both the popular definitions of the term 'schoolteacher'
and the information prepared by the Legislative Council [for the voters] indicate that the voters who
adopted the amendment favored a broad and encompassing definition of the term," and GA-0394
concludes that the term is therefore "broad enough to include a substitute teacher within its ambit."
Id. at 3.
Thus, under GA-0394, substitute teachers, who may be hired by a school district although
they have not obtained a certificate as the law requires of teachers, qualify as schoolteachers for
purposes of article XVI, section 40(b)(l). See id.; see also TEX.EDUC.CODEANN. 5 21.003(a)
(Vernon 2006) (requiring a teacher to hold a teaching certificate). The City Attorney apparently
inferred from GA-0394 that a coach, who, according to the City Attorney, "teach[es] physical
40pinion GA-0394 noted that "[tlhe term 'substitute teacher' is not defmed in any Texas statute or regulation"
and is referenced only once in statutes, where section 22.05 l(a)(l) ofthe Education Code defines the term "professional
employee of a school district" for purposes of provisions exempting such professional employees from liability for
certain actions, to expressly include "a substitute teacher." Tex. Att'y Gen. Op. No. GA-0394 (2006) at 2; see TEX.
EDUC.CODEANN. 5 22.05 l(a)(l) (Vernon 2006).
The Honorable Rodney Ellis - Page 5 (GA-0530)
education" in his capacity as coach of an extracurricular sport, likewise qualifies as a schoolteacher
for purposes of article XVI, section 40(b)(l). See Request Letter, supra note 2, at 2.
Although, as GA-0394 states, the constitutional term "schoolteacher" has a "broad and
encompassing definition," the term is not without limit. Tex. Att'y Gen. Op. No. GA-0394 (2006)
at 3. Significantly, article XVI, section 40(b)(l) uses the term "schoolteacher" as opposed to a
facially broader term, such as "school professional" or "school employee," indicating that only a
limited class of school district employees are within its scope. See TEX.CONST.art. XVI, $40(b)(l).
In addition, article XVI, section 40(b)(l) does not include current school administrators, but only
retired school administrators. See id. Thus, the constitution's plain language carefully circumscribes
the class of school employees to whom article XVI, section 40(b)(l) applies.
In our opinion, whether a particular individual who receives compensation from the State of
Texas is a schoolteacher for purposes of article XVI, section 40 of the Texas Constitution depends
upon whether the individual is employed to instruct students in a school setting, which may include
an athletic facility, as a result of which participants may receive credit toward fulfilling their
curriculum requirements. In some circumstances, students may receive credit for extracurricular
activities that fulfills curriculum requirements. See Texas Education Agency, Curriculum -
> Health and Physical Education -> Physical Education, http://www.tea.state.tx.us/curriculum
/hpe/pefaq.html (last visited Mar. 7,2007); see TEX.EDUC.CODEANN.5 28.002(a) (Vernon 2006)
(requiring school districts to offer a required curriculum and an enrichment curriculum that include
mathematics, science, physical education, and fine arts); 19 TEX.ADMIN.CODE5 74.l(a) (2006)
(Texas Education Agency, Essential Knowledge and Skills) (same); see also TEX.EDUC.CODEANN.
5 33.081 (Vernon 2006) (requiring the State Board of Education to regulate participation in
extracurricular activities); 19 TEX.ADMIN.CODE5 76.1001(a) (2006) (Texas Education Agency,
Extracurricular Activities) (defining "extracurricular activities").
Whether a particular state employee, such as Council Member A, is employed to instruct
students in a school setting as a result of which the students may receive credit, and thus whether
Council Member A is a schoolteacher for purposes of article XVI, section 40 is a question of fact
that cannot be determined in the opinion process. See Tex. Att'y Gen. Op. No. GA-0446 (2006) at
18 ("Questions of fact are not appropriate to the opinion process."). Likewise, whether Council
Member B or C would qualify as a schoolteacher under article XVI, section 40 were the member to
acquire a position coaching a UIL event in addition to his or her administrative position will depend
upon whether the council member is employed to instruct students in a school setting, as a result of
which participating students may receive credit for their participation.
B. Whether certain expenses may be reimbursed without constituting salary for
purposes of article XVI, section 40(b)(l)
The City Attorney also asked about reimbursing those council members who may not
constitutionally receive a salary for their city council service. See Request Letter, supra note 2, at
3-4. The Laredo City Charter entitles city council members to "reimbursement for their actual and
necessary expenses incurred in" performing their official duties. See LAREDO, TEX.,CITYCHARTER,
The Honorable Rodney Ellis - Page 6 (GA-0530)
art. 11, § 2.02 (City Council, Compensation; Expenses), available at http://www.cityoflaredo.corn/
mayor-council/city-charterlcharterl .htm (last visited Mar. 7, 2007). "[A] mere reimbursement of
expenses does not constitute" salary for purposes of article XVI, section 40(b)(l). Tex. Att'y Gen.
LO-93-033, at 1; see also In re Carlisle, 209 S.W.3d 93, 96 (Tex. 2006) (stating that under article
111, section 19 of the Texas Constitution receiving only reimbursement and not compensation does
not render an office lucrative); Tex. Att'y Gen. LO-94-072, at 3 (equating compensation with salary
for purposes of article XVI, section 40). The amount of money a member of a governmental body
receives as reimbursement may not exceed the actual expenses the member incurred, however. See
Tex. Att'y Gen. LO-93-037, at 4.
The City Attorney asked whether the city may reimburse city council members for certain
specific items:
a. . . . expenses for meals consumed by council members and their
constituents at times when the council members meet with them to
discuss city issues . . . [;I
b. . . . membership fees of a civic organization, such as Kiwanis,
. . . if [the member] submits claims stating that he attended such
meetings as a representative of the city[;]
c. . . . expenses incurred by a council member for maintenance of a
home office (as defined and qualified under Internal Revenue
Services rules), to the extent such home office is used for city
business, including pro-rated rent or mortgage and electricity
consumed . . . . For example, council member X uses 10% of his
home for a certain amount of time to study the council agenda; [and]
d. . . . annual leave earned at the place of employment . . . used by
a council member in order to attend to city business . . . at [the] actual
workplace daily pay rate.
Request Letter, supra note 2, at 3-4. He further asked whether governing bodies of home-rule
municipalities may "draft and enact their own ordinances setting policies for what is or is not
reimbursable as actual expenses as well as set maximum amounts reimbursable per member without
violating any state statute or the Texas Constitution." Id. at 4.
Whether a particular expense is reimbursable and not salary for purposes of article XVI,
section 40(b)(l) is a question of fact that cannot be resolved in the opinion process. See Tex. Att'y
Gen. Op. No. GA-0446 (2006) at 18 ("Questions of fact are not appropriate to the opinion process.").
In addition, whether a particular expense is reimbursable under a particular city charter is a question
that the appropriate municipal officers, not this office, must determine in the first instance. See Tex.
Att'y Gen. Op. No. GA-0449 (2006) at 1 (declining to construe a city charter).
The Honorable Rodney Ellis - Page 7 (GA-0530)
As the final question suggests, a home-rule municipality may adopt reasonable ordinances
delimiting expenses for which the municipality may reimburse city council members. "Home-rule
cities do not depend on the legislature for specific grants of authority but, instead, have a
constitutional right of self-government and look to the legislature only for specific limitations on
their power." City ofLaredo v. Webb County, No. 03-05-00168-CV, 2005 WL 3234768, at *3 (Tex.
App.-Austin Dec. 1,2005, no pet.) (not designated for publication); accord Quickv. City ofAustin,
7 S.W.3d 109,122 (Tex. 1998); see also TEX.CONST.art. XI, 9 5 (authorizing the creation of home-
rule municipalities). To the extent that reimbursement for various expenses constitutes a gift or grant
of public funds for purely private purposes, it would contravene article 111, section 52 of the Texas
Constitution. See TEX.CONST.art. 111, 5 52(a) (prohibiting the Legislature from authorizing grants
of public money or things of value for private purposes). But we are not aware of any other statute
or constitutional provision that would restrict a home-rule municipality's authority in this regard.
The Honorable Rodney Ellis - Page 8 (GA-0530)
S U M M A R Y
Whether a particular state employee is a schoolteacher for
purposes of article XVI, section 40 ofthe Texas Constitution depends
upon whether the employee is employed to instruct students in a
school setting, which may include an athletic facility, as a result of
which participants receive credit toward fulfilling their curriculum
requirements.
A home-rule municipality may adopt reasonable ordinances
delimiting expenses for which the municipality may reimburse city
council members consistently with article XVI, section 40(b)(l). To
the extent that reimbursement for various expenses constitutes a gift
or grant of public funds for purely private purposes, it would
contravene article 111, section 52 of the Texas Constitution.
Very truly yours,
~ t t o r n e w n e r aof
l Texas
KENT C. SULLIVAN
First Assistant Attorney General
ELLEN L. WITT
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
Kymberly K. Oltrogge
Assistant Attorney General, Opinion Committee