         THE     J~TIKBRNEY            GENERAL
                     OF~XAS
                  AUSTIN.   TEXASI    78711

                    February 24, 1976



The Honorable William A. Webb          Opinion No. H-786
Acting Commissioner
Coordinating Board                     Re: Constitutionality
Texas College and University           of,severance pay for
     system                            terminated professors.
P. 0. Box 12788, Capitol Station
Austin, Texas 70711
Dear Commissioner Webb:
     you have asked our opinion on the constitutionality of
a portion of the Coordinating Board's Polic
Freedom, Tenure and Responsibility). Tii&?BE       ~o~::emic
of the Policy Paper in question is paragraph (3), section
IV, Faculty Dismissals, which provides:
          If the faculty appointment is to be
          terminated, the faculty member, except
          in cases of moral turpitude, will receive
          his salary at least for one year or for
          the period to which he is entitled under
          these regulations. He will be continued
          in his duties for that period unless at
          the discretion of the institution he be
          granted a leave of absence with pay.
     You indicate that some institutional administrators
contend that this provision conflicts with article 3, sections
51, 52 and 53 of the Texas Constitution. These sections
provide in part:




                            p. 3315
The Honorable William A. Webb - page 2 (H-786)


         Sec. 51. The Legislature shall have no
         power to make any grant or authorize the
         making of any grant of public moneys to
         any individual, association of individuals,
         municipal or other corporations whatso-
         ever. . . .

          .   .   .

         Sec. 52.  (a) Except as otherwise provided
         by this section, the Legislature shall have
         no power to authorize any county, city, town
         or other political corporation or subdivision
         of the State to lend its credit or to grant
         public money or thing of value in aid of, or
         to any individual, association or corporation
         whatsoever, or to become a stockholder in such
         corporation, association or company.
          .   .   .

          Sec. 53.  The Legislature shall have no power
          to grant, or to authorize any county or
          municipal authority to grant, any extra
          compensation, fee or allowance to a
          public officer, agent, servant or con-
          tractor, after service has been rendered,
          or a contract has been entered into,   and
          performed in whole or in part; nor pay,
          nor authorize the payment of, any claim
          created against any county or municipality
          of the State, under any agreement or contract,
         ~made without authority of .law.

     Another.'sectionof the.Constitution which raises similar
questions is article 3, section 44, which provides:
          Sec. 44.  The Legislature shall provide
          by law for the~compensation of all officers,
          servants, agents and public contractors, not
          provided for in this Constitution, but shall
          not grant extra compensation to any officer,




                       p.   3316
The Honorable William A. Webb -   page   3(H-786)




          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;
          nor employ any one in the name of the State,
          unless authorized by pre-existing law.
     Similar constitutional questions were raised in Attorney
General Opinion H-402 (1974), in which a county sought to
provide back pay for a county employee who was suspended but
later reinstated. We said:
              If, then, a county commissioners
         court has authority to hire employees, by
         implication it has the authority to set
         the terms of their employment. One such
         term which may be possible is that if an
         employee is indicted he will be suspended
         with the understanding that he will be
         reinstated with back pay if he is subse-
         quently exonerated. A policy of this
         kind would be a condition of employment
         no different than the rate of compensation
         or amount of vacation an employee is to
         receive.
               But in the situation you have described,
          no such policy regarding indicted employees
          was ever adopted by the commissioners
          court. Instead, it is seeking to award
          back pay after the indicted employee has
          already been exonerated and reinstated.
          In these circumstances it is our opinion
          that a retroactive grant of back pay
          would be unconstitutional.




                        p. 3317
The Honorable William A. Webb - page 4 (H-786)


     In our opinion, a reasonable policy that a professor
who is to be terminated receive substantial notice or, if he
is to be terminated immediately, receive his salary for the
period for which he would have otherwise received notice is
constitutional so long as it is a term or condition of
employment. Thus, if a college adopts this policy it may
provide such severance pay for its employees who are termin-
ated after the adoption of the policy.

                        SUMMARY
            A college may constitutionally provide
            that terminated professors will receive
            either substantial notice or severance
            pay.
                                  Very truly yours,


                                  JOHN L. HILL
                                  Attorney General of Texas
APPROVED:



                       st Assistant



C. ROBERT HEATH, Chairman
Opinion Committee
jwb




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