                               ATTORNEY GENERAL OF TEXAS
                                            GREG        ABBOTT




                                                 June 182004



Ms. Shirley Neeley, Ed.D.                                      Opinion No. GA-0204
Commissioner of Education
Texas Education Agency                                         Re: Whether a public school teacher may be
1701 North Congress Avenue                                     awarded compensation under the statutory
Austin, Texas 78701                                            Advanced   Placement   Incentive Program
                                                               (RQ-0151-GA)


Dear Commissioner       Neeley:

         Your predecessor asked whether a public school teacher maybe awarded compensation under
the statutory Advanced Placement Incentive Program if the compensation is in addition to that
received under the teacher’s employment contract, or alternatively, as an express or implicit term of
the teacher’s contract.’ See TEX. EDUC. CODE ANN. $9 28.051-.058 (Vernon 1996 & Supp. 2004)
(creating the Texas Advanced Placement Incentive Program (“APIP”)).

         The stated purpose of APIP “is to recognize and reward those students, teachers, and schools
that demonstrate success in achieving the state’s educational goals,” by establishing and maintaining
successful college advanced placement courses and international baccalaureate courses. Id.
5 28052(a) (Vernon 1996). Funding for APIP comes from grants, donations, and legislative
appropriations, which are distributed by the Texas Education Agency. Id. $2&057(a). Among other
incentives, a participating school may receive $100 for each student who receives a certain score on
a college advanced placement test or an international baccalaureate examination, $50 of which may
be placed in a school’s teacher bonus pool. Id. 0 28.053(a)(2), (f) (Vernon Supp. 2004). When a
school receives an award, the school principal is to convene a team of teachers and others to
determine how to spend the funds. Id. 9 28.053(c).            Priority is to be given “to academic
enhancement purposes in using an award received under the program.” Id. 0 28.055(a) (Vernon
1996). The team may decide, among other things, “to direct [the] expenditure of funds . . . for
awards to individual teachers participating in the program.” Id. $28.053(c) (Vernon Supp. 2004).

        A school must apply to the State Board of Education to participate in the program. Id.
9 28.055(b) (V emon 1996). A teacher must also apply to the board and teach a college advanced
placement course or an international baccalaureate course to participate in the program and be


         ‘See Letter from Mr. Robert Scott, Chief Deputy Cornrnissioner, Texas Education Agency, to Honorable Greg
Abbott, Texas Attorney General (Dec. 17, 2003) (on tile with the Opinion Committee, also available at
http://www.oag.state.tx.us) [hereinafter Request Letter].
 Ms. Shirley Neeley, Ed. D. - Page 2                (GA-0204)




eligible for an award. Id. $9 28.053(e),      28.056 (Vernon 1996 & Supp. 2004). An eligible teacher
may receive (1) subsidized training, (2)     a one-time bonus for teaching a college advanced placement
course or an international baccalaureate      course for the first time, or (3) a share of the teacher bonus
pool distributed in shares proportional        to the number of courses taught. Id. $ 28.053(d)(1)-(3)
(Vernon Supp. 2004).                                                   l




        As the Request Letter notes, teacher contracts typically run for a term at least through the
school year, but rarely specify an entitlement to a particular teaching assignment. See Request Letter,
supra note 1, at 2. The Request Letter asks:

                 1.      May a teacher be paid any additional amounts as determined
                         by the campus team in its discretion under Section 28.053, if
                         those amounts are in addition to the compensation for which
                         the teacher has contracted?

                2.       May a district pay an amount to a teacher in addition to the
                         compensation for which the teacher has contracted using the
                         statutory methodology in Subsection 28.053(d), by virtue of
                         the employment      contract implicitly  incorporating  that
                         provision?

                3.       May a district prospectively incorporate into its employment
                         contract the receipt of additional compensation, contingent
                         upon an award by the campus team?

Id.

         The Request Letter specifically asks whether such payments would offend article III, section
 52 of the Texas Constitution.     That section and other constitutional provisions such as article III,
 sections 44, 5 1, and 53 prohibit the state and its political subdivisions from gratuitously paying
 public funds for private purposes. Byrd v. City of Dallas, 6 S.W.2d 738, 740-41 (Tex. 1928).
 Sections 51 and 52 require that public funds be expended to achieve a public purpose. Tex. A4z.m.
League Intergovernmental Risk Pool v. Tex. Workers’ Comp. Comm’n, 74 S.W.3d 377,383 (Tex.
2002); Edgewood Indep. Sch. Dist. v. Meno, 917 S. W.2d 7 17,740 (Tex. 1995). The Supreme Court
of Texas has adopted a three-part test to determine whether a payment accomplishes a legitimate
public purpose under section 52: “Specifically, the Legislature must: (1) ensure that the statute’s
predominant purpose is to accomplish a public purpose, not to benefit private parties; (2) retain
public control over the funds to ensure that the public purpose is accomplished and to protect the
public’s investment; and (3) ensure that the political subdivision receives a return benefit.” Tex.
Mun. League, 74 S.W.3d at 384. Here, APIP’s stated purpose is to reward successful achievement
of the state’s education goals. TEX. EDUC. CODE ANN. 5 28.052(a) (Vernon 1996). The statutes
limit payment from the Teacher Bonus Pool to teachers who have qualified and teach APIP courses.
Id. $9 28.053, 28.056 (Vernon 1996 & Supp. 2004). APIP payments to teachers satisfies the
requirements of article III, sections 51 and 52.’



       *We do not address the expenditure of APIP funds for other purposes.
Ms. Shirley Neeley, Ed. D. - Page 3             (GA-0204)




         More pertinent to the questions here, article III, sections 44 and 53 limit the authority of the
legislature, counties, and municipal authorities to pay extra compensation to public employees.
Under article III, section 44, the legislature “shall not grant extra compensation to any officer, agent,
servant, or public contractors, after such public service shall have been performed or contract entered
into, for the performance of the same; nor grant, by appropriation or otherwise, any amount of money
out of the Treasury of the State, to any individual, on a claim, real or pretended, when the same shall
not have been provided for by pre-existing law.” TEX.CONST.art. III, 9 44. Article III, section 53
denies the legislature the “power to grant, or to authorize a county or municipal authority to grant,
any extra compensation,      fee or allowance to a public officer, agent, servant or contractor, after
service has been rendered, or a contract has been entered into, and performed in whole or in part.”
TEX.CONST.art. III, $ 53; see also Harlingen Indep. Sch. Dist. v. C.H. Page & Bros., 48 S.W.2d
983, 986 (Tex. Comm’n App. 1932, judgm’t adopted) (determining that school district is a
“municipality” subject to article RI, section 53).

         As this office frequently has noted, a key constitutional concern is that public compensation
may not be increased retroactively. See, e.g., Att’y Gen. Op. Nos. JC-0376 (2001) (one-time salary
supplement that retroactively increases compensation would not be constitutional), JM-1253 (1990)
(prosecutor may not award bonus from drug seizure funds in addition to contractual compensation),
JM-1113 (1989) (merit pay raises may be given prospectively but not retroactively), WW-790 (1960)
(longevity award may be paid as compensation to retain valuable employees but may not be paid to
former employees). More specifically, the state and its political subdivisions may not pay additional
funds for contractual performance already required by an existing contract. Rhoads DriZZing Co. v.
Abed, 70 S.W.2d 576,581 (Tex. 1934). The state and its political subdivisions may modify their
contracts, but may not agree to make additional payments without receiving new consideration in
return. Id. In Attorney General Opinion MW-68, the question was whether article III, section 53
prohibited a school district from giving bonuses or salary increases after the school year had begun
to teachers who rendered their services under term contracts. Tex. Att’y Gen. Op. No. MW-68
(1979). This office determined that, “in the’absence of additional consideration, the school district
may not increase a teacher’s annual compensation under the contract once part performance has been
rendered. The school board may, however, renegotiate a contract already performed in part where
new consideration passes to the district in exchange for new benefits provided.” Id. at 2. For
example, a teacher’s agreement to receive APIP training and teach APIP courses would constitute
new consideration if such terms of performance are not .already required by existing contract or
school district policy. Of course, we cannot determine what would constitute new consideration
without reference to a particular teacher’s contract and circumstances.

         The remaining questions are whether APIP payments may be incorporated into new contracts,
either expressly or implicitly. This office has previously determined that compensation may be
increased after services have been rendered provided the employee’s contract or applicable state law
at the time of the contract “provided for the possibility of additional payments.” Tex. Att’y Gen. Op.
No. JC-0383 (2001) at 2. Laws existing at the time and place a contract is signed are incorporated
into the contract. Request Letter, supra note 1, at 2; Cent. Educ. Agency v. George West Indep. Sch.
Dist., 783 S.W.2d 200,201 (Tex. 1989); see also Tex. Att’y Gen Op. No. JC-0115 (1999) (school
board policy to award back pay for period of suspension may be viewed as a term of the contract and,
Ms. Shirley Neeley, Ed. D. - Page 4             (GA-0204)




applied prospectively, is not prohibited by article III, section 53 of the constitution). Section 28.053
of the Education Code expressly provides that teachers who fulfill certain requirements are eligible
to receive APIP payments. Consequently, contracts executed after June 20,2003, the effective date
of the statute, would incorporate that statute’s terms as part of the teacher’s contract for
compensation. Moreover, a teacher whose contract expressly provides for the prospective possibility
of such additional compensation could receive APIP payments without violating sections 44 and 53
of the constitution.
Ms. Shirley Neeley, Ed. D. - Page 5          (GA-0204)




                                      SUMMARY

                       An Advanced Placement Incentive Program payment to a
               public school teacher under section 52 1.126 of the Education Code
               serves a public purpose. A public school teacher under an existing
               contract may not be awarded such a payment unless (1) the teacher
               provides additional consideration    in return, or (2) the teacher’s
               contract expressly provides for the possibility of such additional
               compensation.      A teacher may receive such a payment as part of
               compensation in contracts executed after June 20,2003, the effective
               date of the statute.




BARRY R. MCBEE
First Assistant Attorney General

DON R. WILLETT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

William A. Hill
Assistant Attorney General, Opinion Committee
