                                NEY     GENERAL
                       OFTE~AS




                             October   20. 1969


Honorable J. W. Edgar                  Opinion No. (M-493)
Commissioner of Education
Texas Education Agency                 Re: Whether the board of trustee~s
201 East 11th Street                       of an independent school
Austin, Texas 78711                        district may schedule and
                                           pay, from local school
                                           funds, a higher salary to
                                           teachers having dependents
                                           than it pays to those not
                                           having dependents.
Dear Dr. Edgar:

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

          "In its deliberations relative to a schedule
     for a higher salary to its employees, the board of
     trustees of a school district (Austin I.S.D.) is
     pursuing the possibility of higher pay from local
     school funds for such employees, men or women, who
     are determined to be head-of-a-household, the board
     citing as a reference the practice of the Federal
     Government for income tax purposes granting certain
     allowances for head of a household.

           "It points out in support of such a higher
     salary determination predicate that a head-of-a-
     household normally has more expenses than does one
     without family responsibilities; further that such
     could be either husband or wife, a married person
     without a spouse having dependents, or a single




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Honorable J. W. Edgar, page 2        (M-49,3)


     person having aged parents or other dependents
     that incurs greater living expenses to him or
     her than a single person without such responsi-
     bilities.

          "The Board of Trustees of the Austin Independ-
     ent School District has requested this Agency to
     obtain an opinion from the Office of Attorney General
     on the following question:

               'Legally may a public school district
          from local school funds schedule and pay em-
          ployees locally determined as head-of-a-
          household a supplemental salary which is more
          than it would pay employees who are not
          head-of-a-household?'"

     Section 1 of Article 2922-14, Vernon's Civil Statutes, as
amended by Section 1 of House Bill Number 240 (Acts 61st Leg.,
R.S. 1969, ch. 872, p. 2634) provides that:

           "The board of trustees of each and every school
     district in the State of Texas shall pay their
     teachers upon a salary schedule providing a minimum
     beginning base salary, plus increments above the
     minimum for additional experience in teaching as
     hereinafter prescribed.   The salaries fixed herein
     shall be reqarded as minimum salaries only and each
     district may supplement such salaries." (Emphasis
     added.)

     It is well settled that the school trustees are creatures
of the law possessing only the jurisdiction and powers expressly
or impliedly given them by statute.   51 Tex.Jur.2d 443, Schools,
Sec. 83.   In this situation, the statute, Article 2922-14,
Vernon's Civil Statutes, requires the board of trustees of
every school district to pay their teachers upon a salary
schedule, and permits the district to supplement such salaries.
Consequently, the school district may supplement such salaries
upon any fair, non-discriminatory, and constitutional basis




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Honorable J. W. Edgar, page 3 (M-493)


which it deems best to promote the purposes and objectives of
the school system.

     It is recognized that for the purpose of fixing compensa-
tion for various officers and employees, classifications may be
made so long as the classification is based on a real distinction
and it is not unreasonable, arbitrary or capricious.   Bexar
County v. Tynan, 128 Tex. 223,97 S.W.2d 467 (1936). The test is
whether there is a reasonable basis for the classification.
Wood v. Wood, 159 Tex. 350, 320 S.W. 807 (1959): Smith v. Davis,
426 S.W.2d 827 (Tex.Sup. 1968). Therefore, we believe the
Supreme Court of Indiana stated the general rule which is
applicable to the facts herein presented when in Hutton v. Gill,
8 N.W.2d 818 (Ind.Sup. 1937), it stated at page 820:

          "School boards as a matter of common knowledge,
     have, in adopting their several schedules, classified
     teachers under various heads and fixed the compensation
     for the several classifications.   The record shows that
     the appellants in this case followed this method.    So,
     if the legislative intent .. . was to authorize the
     school board to classify its teachers, it necessarily
     follows that such classification must be reasonable,
     natural and based upon substantial differences qermane
     to the subject, or upon some basis having a reasonable
     relation to the work assigned.   If the classification
     is arbitrary or capricious, and upon a basis havinq no
     relation to the kind or character of the work to be
     done, it would be void and unlawful, and in conflict
     with the statute." (Emphasis added.)

     In the above case, the school trustees attempted to classify
female teachers, for compensation purposes, according to their
marital status, and place those who were married in a lower
salary classification than unmarried women having like quali-
fications and doing like work. The court proceeded to hold
such a policy unreasonable and invalid, stating at page 820:




                         -2354-
Honorable J. W. Edgar, page 4        (M-493)


           "This, in our judgment, was unlawful and
     arbitrary, and formed no rational basis for a
     classification.   It had no reasonable relation to
     the work assigned to her, as the fact that appellant
     was a married woman did not affect her ability to
     impart knowledge or perform her duties in the school-
     room.   It is conceded that her marriage status had no
     such effect, and, if not, there could be no just or
     reasonable basis for the school board classifying her
     as far as compensation is concerned, in a different and
     lower class than an unmarried female teacher having
     like work."

This and other pertinent cases are annotated in 133 A.L.R.
1437, at page 1439, and in 47 Am. Jur. 381, Schools, Section 120.

     Therefore, where the determination of the method of classi-
fication is left to the Local school board and where the method
adopted is reasonable, natural and based upon substantial
difference germane to the subject or upon some basis having
a reasonable relation to the work assigned, the duties to be
performed or the services to be rendered the determination of
the board will be upheld. However, a differential in salary
based not upon a material difference in training, qualifications,
experience, abilities, duties, or services to be rendered, such
action amounts to a determination which is arbitrary and
discriminatory and which forms no rational basis for the classi-
fication. Likewise, a salary not based on any relation to the
work assigned or upon material  difference in training, quali-
fications, experience, abilities or duties, such action may be
held to be a violation of Sections 51, 52 and 53 of Article III
of the Constitution of Texas, which prohibits any grant of
public moneys in aid of individuals.   See also Article XVI,
Section 6, Constitution of Texas, outlawing apporpriations for
private or individual purposes.

     If the board's order fixing the supplemental salary is
based solely on matters not having any relation to the work
assigned or any relation to the training, qualification,




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 .   .




Honorable J. W. Edgar, page 5 (M-4921


experience, ability or duties of the teacher, such order of
supplementation would not be compensation for services
rendered but rather a grant in aid of individuals for private
purposes in violation of Section 51 of Article III of the
Constitution of Texas.

     In view  of the foregoing, you are advised the board of
trustees of an independent school district may not legally
schedule and pay, from local school funds, teachers a supple-
mental salary on the sole basis of their personal status as
head-of-a-household, which salary would be more than it would
pay other teachers not having such personal status but who have
the same qualifications and perform the same quality and quantum
of work, with like responsibilities.

                              SUMMARY

             The board of trustees of an independent
          school district has the discretionary power
          to supplement salaries pursuant to the pro-
          visions of Article 2922-14, Vernon's Civil
          Statutes.  However, the personal status of
          a teacher as head-of-a-household cannot be
          the sole basis for fixing the amount of
          supplemental salary to be paid a teacher.




                                            l2(2%zz
                                             MARTIN
                                            neral of Texas

Prepared by John Reeves
Assistant Attorney General




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                                                .   .




Honorable J. W. Edgar, page 6         (M-493)



APPROVED:
OPINION COMMITTEE

Kerns Taylor, Chairman
George Kelton, Vice-Chairman
Jim Swearingen
Roger Tyler
Alfred Walker
Jack Goodman

MEADE F. GRIFFIN
Staff Legal Assistant

HAWTHORNE PHILLIPS
Executive Assistant

NOLA WHITE
First Assistant




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