                                 The Attorney               General of Texas

                                                       July 6, 1982
MARK WHITE
Attorney General


                               Mr. Raymon L. Bynum                      Opinion No.MW-485
Supreme Court Building         Commissioner of Education
P. 0. BOX 12546
Austin, TX. 76711. 2546
                               Texas Education Agency                   Re: Whether section 2.07(b)(2)
512/475-2501
                               201 East Eleventh Street                 of the Education Code relating
Telex 9101674-1367             Austin, Texas   78701                    to assignment of salary by
Telecopier   512,475.0266                                               married person is still valid

                               Dear Mr. Bynum:
1607 Main St., Suite 1400
Dallas, TX. 75201.4709
2141742-6944                        Your question concerns section 2.07 of the Texas Education Code,
                               which provides in pertinent part as follows:
4624 Alberta Ave.. Suite 160
El Paso, TX. 79935.2793
                                             (b) Any teacher's or school employee's
915/533-3464                            assignment. pledge, or transfer of his salary or
                                        wages as security for indebtedness -- or any
                                        interest or part of his salary or wages -- then
1220 Dallas Ave., Suite 202             due or which may become due under an existing
Houston, TX. 770028966
713/650-0666
                                        contract of employment shall be enforceable only
                                        under the following conditions:

606 Broadway, Suite 312                      . . . .
Lubbock, TX. 79401.3479
606/747-5236
                                             (2) Any assignment, pledge, or transfer must
                                        be in writing and acknowledged as required for the
4309 N. Tenth, Suite B                  acknowledgement of deeds or other recorded
McAllen, TX. 76501-1665                 instruments, and if executed by a married person,
5121662.4547                            it must also be executed and acknowledged in a
                                        like manner by his or her spouse.... (Emphasis
200 Main Plaza, Suite 400               added).
San Antonio, TX. 76205.2797
5121225.4191                   You ask whether the underlined requirement is valid under current
                               Texas marital property laws.
An Equal Opportunity/
Affirmative Action Employer         Article XVI, section 15 of the Texas Constitution provides in
                               relevant part that:

                                        All property, both real and personal, of a spouse
                                        owned or claimed before marriage, and that
                                        acquired afterward by gift, devise or descent,
                                        shall be the separate property of that spouse; and
                                        laws shall be passed more clearly defining the




                                                              p. 1712
Mr. Raymon L. Bynum - Page 2   (MW-485)




          rights of the spouses, in relation to separate and
          community property....

     Title 1 of the Family Code was enacted in 1969. Acts 1969, 61st
Leg., ch. 888, at 2707. As amended in 1973. section 5.22 thereof
provides in pertinent part as follows:

               (a) During marriage, each spouse has the
          sole management, control, and disposition of the
          community property that he or she would have owned
          if single, including but not limited to:

                    (1) personal earnings;

                    . . ..

               (c) Except as provided in Subsection (a) of
          this section, the community property is subject to
          the joint management, control, and disposition of
          the husband and wife, unless the spouses provide
          otherwise by power of attorney in writing or other
          agreement.

     Under this section, each spouse has "sole management, control,
and disposition" of his or her "personal earnings."            Section
2.07(b)(2) of the Education Code requires, however, that an
assignment, pledge, or transfer of a teacher's or school employee's
salary or wages must, if executed by a married person, "also be
executed and acknowledged in a like manner by his or her spouse."
Your question is essentially whether, in enacting section 5.22 of the
Family Code, the legislature impliedly repealed this requirement.

     We begin by noting that our courts do not favor repeal by
implication. Where two statutes enacted at different times are not
inconsistent, repeal by implication occurs only if the later enactment
"embrace[s] all the law upon the subject with which it deals" and is
clearly intended as a complete replacement for former law. -      Motor
Investment Company v. City of Hamlin, 179 S.W.2d 278, 281 (Te!X. 1944).
Accord, Standard v. Sadler, 383 S.W.2d 391 (Tex. 1964); Wintermann v.
McDonald, 102 S.W.2d 167 (Tex. 1937). The rule governing repeal by
imolication was sunrmarizedin the followinp.manner in Texas and N.O.R.
Company v. W.A. Kelso Building Material Company, Inc., 250 S.W.2d 426,
430 (Tex. Civ. App. - Galveston 1952, writ ref'd n.r.e.):

          [Wlhere there    is   no   express repeal,    the
          presumption is that in enacting a new law the
          legislature intended the old statute to remain in
          operation. So, a repeal by implication will be
          adjudged only when such result is inevitable or




                                    p. 1713
Mr. Raymon L. Bynum - Page 3   (MW485)




         was plainly intended by the Legislature. Further,
         the doctrine of implied repeal may not be invoked
         merely because of inconsistency or repugnance
         between earlier and later legislation. The court
         will endeavor to harmonize and reconcile the
         various provisions and if both acts can stand
         together, the rule is to let them stand.

Thus, we cannot conclude that the section 2.07(b)(2) requirement has
been repealed by implication unless it is clear that the legislature
"plainly intended" that result.

     The section 2.07(b)(2) requirement was first imposed in 1939. As
originally enacted, article 2883a, V.T.C.S., the predecessor of
section 2.07, provided in relevant part that:

         such assignment, transfer, or pledge be in writing
         and acknowledged in the same manner as required
         for the acknowledgment of a deed or other
         instrument for registration, and provided further
         that if such instrument be executed by a married
         person it shall also be executed and acknowledged
         by his or her spouse in such manner.

     In 1939, article XVI,     section 15 of   the Texas Constitution
provided that:

         [a]11 property, both real and personal, of the
         wife, owned or claimed by her before marriage, and
         that acquired afterward by gift, devise or
         descent, shall be her separate property; and laws
         shall be passed more clearly defining the rights
         of the wife, in relation as well to her separate
         property as that held in common with her
         husband....

     The 1939 version of article 4619, V.T.C.S., the predecessor of
section 5.22 of the Family Code, provided in pertinent part that:

              Section 1.     All   property   acquired   by
         either the husband or wife during marriage, except
         that which is the separate property of either,
         shall be deemed the common property of the husband
         and wife; and all the effects which the husband
         and wife possess at the time the marriage may be
         dissolved shall be regarded as common effects or
         gains, unless the contrary be satisfactorily
         proved. During coverture the common property of
         the husband and wife may be disposed of by the




                                    p. 1714
Mr. Raymon L. Bynum - Page 4   (MW-485)




          husband only; provided, however, if the husband
          shall have disappeared....

     When the foregoing provisions are read together, it becomes
apparent that in 1939, the following was true: (1) The personal
earnings of a spouse, i.e., salary or wages, earned during marriage
were part of the "common property" of the husband and wife; (2) As a
general rule, the husband had the sole right to control said common
property; (3) This rule was, however, subject to such exceptions as
the legislature should create, see, e.g., Hawkins v. Britton State
Bank, 52 S.W.2d 243 (Tex. 1932) (rents from wife's separate lands are
community property but, under former articles 4614 and 4616, V.T.C.S.,
are under wife's exclusive management and control); and (4) article
2883a. V.T.C.S., created such an exception. Under this statute, if a
married, male teacher or school employee wished to assign, pledge, or
transfer all or part of his salary or wages as security for
indebtedness, he was obliged, notwithstanding his general right to
control the personal earnings of either spouse, to have his wife
execute and acknowledge the instrument as well.       See Hawkins v.
Britton State Bank, supra (articles 4614 and 4616 create exceptions to
general rule stated in article 4619).

     The status of one's personal earnings is different today. Said
earnings are now part of the "special community" property listed in
section 5.22 of the Family Code. See Estate of Wyly v. Commissioner
of Internal Revenue, 610 F.2d 1282 (5th Cir. 1980). A spouse's
community interest in section 5.22(a) "special community" property is
different from his or her general community interest, in the sense
that although the other spouse owns an undivided one-half interest in
the property, the spouse with the special community interest has the
sole power of management, control and disposition of it. Estate of
wJ&   supra.

     In support of the contention that section 5.22 of the Family Code
impliedly repealed section 2.07(b)(2) of the Education Code, it is
urged that the section 2.07(b)(2) requirement is at odds with the
philosophy expressed in section 5.22(a), viz., that each spouse should
have the "sole" right to manage his or her personal earnings. As we
have shown, however, the general rule in 1939 was that husbands had
the "sole" right to manage the common property of the marriage,
including the spouses' personal earnings, but this did not prevent the
legislature from creating the exception then embodied in article 2883a
and now found in section 2.07(b)(2). Admittedly, given section 5.22
of the Family Code, section 2.07(b)(2) now operates as a limitation
upon the management rights of either spouse, not just the husband;
nevertheless, we conclude that the section 2.07(b)(2) requirement is,
at least in theory, no more inconsistent with the philosophy expressed
in section 5.22 of the Family Code than the article 2883a requirement
was with the concept underlying article 4619.




                                   p. 1715
Mr. Raymon L. Bynum - Page 5    (MW-485)




     The legislature was free in 1939 and is free now to define the
rights of spouses with respect to their community property. Tex.
Const. art. XVI, 915. It exercised that right in 1939 when, through
the enactment of article 2883a, it qualified a husband's otherwise
broad power to manage common property. The article 2883a requirement
has been on the books in one form or another since 1939. In light of
this, we cannot conclude that the legislature "plainly intended" to
repeal the requirement when it enacted section 5.22 of the Family
Code.

                               SUMMARY

             Section 5.22 of the Texas Family Code did not
          impliedly repeal section 2.07(b)(2) of the Texas
          Education Code.

                                           Very truly yours,
                                                               .

                                     3%zzd
                                        MARK      WHITE
                                        Attorney General of Texas

JOHN W. FAINTER, JR.
First Assistant Attorney General

RICHARD E. GRAY III
Executive Assistant Attorney General

Prepared by Jon Bible
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Susan L. Garrison, Chairman
Jon Bible
Rick Gilpin
Patricia Hinojosa
Nancy Lynch
Jim Moellinger
Bruce Youngblood




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