Case Information

*1 TL'.R AITOMNEY GENERAL OFTEXAS . Ausrrmu. TExAn 78711

CRAWFORD C. MARTIN

*-RNISY OL+I6RAs.

July 24, 1972 Honorable J. W. Edgar Opinion No. M-1177 Commissioner of Education

Texas Education Agency Re: Validity, pursuant to Sub- 201 East 11th Street section (d) of Section Austin, Texas 78701 21.904, Texas Education

Code, of proposed regulation independent school dis- trict forbidding its em- ployees from holding any other position honor, trust or profit under the State of Texas or any sub- Dear Dr. Edgar: division thereof.

Your recent letter requesting the opinion of this of- fice concerning the referenced matter states, in part, as follows:

"A board of trustees of an independent school

district this State (Goliad) has proposed to adopt a school district policy to read, in sub- stance as follows:

"'An employee of the school district shall not hold another office or position honor, trust or profit under the State of Texas or any subdivision thereof. The Board of Trustees expects and requires each employee of the school district to devote his (her) full working time, except as otherwise provided in school policies, to the school district without interference from any other political subdivision of the State of Texas. '

"The Board of trustees of the school district, acting formally as a board, has moved that I re- ‘7 quest an opinion from the Office of the Attorney

General concerning the legality or propriety of such proposed policy."

Section 40 of Article XVI of the Constitution of Texas is not relevant to your request, inasmuch as an employee of a *2 Dr. J. W. Edgar, page 2

school district does not hold an "office of emolument" within the meaning of that Section. Attorney General's Opinion No. (1965).

C-386

Nor is Section 33 of Article XVI of the Constitution Texas applicable to your request, inasmuch as we hold that employees an independent school district (Section l(c) of Article 695h, Vernon's Civil Statutes; Attorney General's Opin .ion :d .y ,91 (1946); Muse v. Prescott School District, 349 S.W.2 NO. o-74 1-32 (Ark.Sup. 1961); contra, Board of Education v. Cit 329, 330 Louisvil le, 157 S.W.Zd 337, 345(Ky.Sup. 1941)), as opposed to $of a state-supported university (Boyett v. Calvert, ,2d 205 (Tex.Civ.App. 1971, error ref. n.r.e.1; Talbott employee 467 S.W. .c Service Commission, 163 s.W.Zd 33, 36-37 (Xy.sup.

v. Publi k2,,, State "officers" or "employees" within the purview of are not that Section.

Subsection (d) of Section 21.904, Texas Education

Code, is the identical wording as that portion Article 2922-21a, Vernon's Civil Statutes, its predecessor; it reads as follows:

"No school district, board of education, super- intendent, assistant superintendent, principal, or other administrator shall directly or indirectly coerce any teacher to refrain from participating in political affairs in his community, state or nation." Therefore, you are advised that the proposed policy set forth in your letter, insofar as it attempts to proscribe school district employees' participation in political activities, is violative of Subsection (d) Section 21.904, Texas Education Code, and of no force or effect.

SUMMARY A school district policy which prohibits a teacher from participating in political affairs is in contravention of Subsection (d) of Section 21.904, Texas Education Code, and is of no force or effect. /7

Dr. J. W. Edgar, page 3

Prepared by Austin C. Bray, Jr.

Assistant Attorney General

APPROVED:

OPINION COMMITTEE

Kerns Taylor, Chairman

W. E. Allen, Co-Chairman

Malcolm Quick

Sig Aronson

James Hackney

Wardlow Lane

SAMUEL D. MCDANIEL

Staff Legal Assistant

ALFRED WALKER

Executive Assistant

NOLA WHITE

First Assistant