                                         September 24, 1999



The Honorable Jose R. Rodriguez                    Opinion No. X-01 15
County Attorney, El Paso County
County Courthouse                                  Re: Whether a school district may award back pay
500 East San Antonio, Room 203                     to employees who were indicted, suspended, and
El Paso, Texas 79901                               subsequently acquitted (RQ-0035)


Dear Mr. Rodriguez:

         You have requested our opinion regarding whether the El Paso Independent School District
(the “District”) is precluded either by article III, sections 52 and 53 ofthe Texas Constitution, or by
section 45.105 of the Education Code from awarding back pay to employees who were indicted,
suspended, and subsequently acquitted. We conclude that the District may award back pay, but that
it is not required to do so.

         You indicate that a number of employees of the El Paso Independent School District were
indicted on charges ofthet? and bribery. They were first suspended without pay, and then terminated
from employment.       Several were subsequently acquitted, and those individuals were thereafter
reinstated after filing grievances. These reinstated employees are now seeking back pay from the
period of time of their initial suspension until their reinstatement.

         Article III, section 52 of the Texas Constitution provides, in part: “[Tlhe Legislature shall
have no power to authorize any county, city, town or other political corporation or subdivision ofthe
State to lend its credit or to grant public money or thing of value in aid of, or to any individual  . .”
Similarly, article III, section 53 of the Texas Constitution, provides, in relevant part: “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 contractor, after
service has been rendered.       .” Although this constitutional prohibition is literally applicable only
to counties and municipalities, it has been construed to apply to an independent school district. See
Harlingen Indep. Sch. Dist. v. C.H. Page & Bra., 48 S.W.2d 983,986 (Tex. Comm’n App. 1932,
holding approved).

         Attorney General Opinion H-402 considered whether a county employee who was suspended
and later reinstated could be awarded back pay in light of article III, section 53. The opinion
concluded that the commissioners court was not authorized to grant back pay unless there had
existed, prior to the award of back pay, a policy permitting the practice. Under such circumstances,
the policy could be viewed as a term of the employee’s contract, i.e., “a condition of employment
The Honorable Jose R. Rodriguez      - Page 2       (X-0115)




no different than the rate of compensation or amount of vacation an employee is to receive.” Tex.
Att’y Gen. Op. No. H-402 (1974) at 2. As this office noted in Attorney General Opinion H-1303,
“these constitutional provisions [article III, sections 44,5 1,52 and 531 do not prohibit the payment
of benefits to employees under the terms of a contract of employment.”        Tex. Att’y Gen. Op. No.
H-1303 (1978) at 3; see also Byrd v. City of Dallas, 6 S.W.2d 738 (Tex. 1928); City of Corpus
Christi v. Hershbach, 536 S.W.2d 653 (Tex. Civ. App.-Corpus Christi 1976, writ refd n.r.e.); City
of Galveston Y. Landrum, 533 S.W.2d 394 (Tex. Civ. App.-Houston            [lst Dist.] 1976, writ ref d
n.r.e.).

         In the situation you present, there is a dispute between the employees and the Board of
Trustees (the “Board”) regarding whether such a policy existed in the El Paso Independent School
District. The employees cite the following provision of the District’s personnel policies: “If the
superintendent declines to reinstate the employee after the disposition of the criminal charge, or
reinstates the employee without back pay, the employee may tile a written grievance within the time
lines established in applicable legal and local policies.” Letter from Honorable Jose R. Rodriguez,
El Paso County Attorney, to Honorable John Comyn, Attorney General (Exhibit D) (Mar. 3,1999)
(on tile with Opinion Committee).      We assume that this policy was in effect at the time of the
employees’ suspension.      Although no portion of the personnel policies we have been provided
aftirmatively sanctions an employee’s right to back pay, the quoted provision appears to permit the
practice. Indeed, an aggrieved employee who is acquitted of a criminal charge, and is reinstated
without back pay, is specifically afforded the right to “file a written grievance” to recover this
amount. Assuming this is what the provision means, the quoted provision would be in our view
sufficient to constitute a prior written “condition of employment” within the terms of Attorney
General Opinion H-402. Thus, the Board may award back pay without contravening article III,
sections 52 or 53.

        The Board is not, however, required to award back pay. The Board may find, for any valid
reason, that an employee is not entitled to back pay. Attorney General Opinion H-402 stands merely
for the proposition that the Board is not prohibited by the constitution from awarding back pay if
there was a prior district policy permitting the practice.

         You also suggest that section 45.105 ofthe Education Code might preclude the District from
awarding back pay in the situation before us. This statute restricts a district’s use of “the state and
county available funds,” and “local school funds.” We find nothing in that statute that would
prohibit the District from awarding back pay where such payment may validly be viewed as a prior
“condition of employment.”        In Attorney General Opinion DM-48, this office said that the
predecessor statute of section 45.105 “gives trustees of a school district broad discretion to expend
local school funds,” and that, consequently, a district has implied authority to pay its employees for
their accrued sick leave. Tex. Att’y Gen. Op. No. DM-48 (1991) at 3. In our view, section 45.105
likewise permits a school district to award back pay to a particular employee so long as the district
had a policy permitting back pay effective at the time the employee was suspended.
The Honorable Jose R. Rodriguez     - Page 3       (X-0115)




                                       SUMMARY

                        The El Paso Independent School District appears to have had
               a policy permitting the award of back pay to an employee who is
               suspended or terminated from employment             and subsequently
               reinstated. As a result, the District may grant such back pay without
               contravening article III, sections 52 and 53 ofthe Texas Constitution.
               The District is not, however, required to award back pay, and may
               decline to do so for any valid reason. Section 45.105 of the Texas
               Education Code permits the District to award back pay.




                                               Attorney General of Texas

ANDY TAYLOR
First Assistant Attorney General

CLARK RENT ERVIN
Deputy Attorney General - General Counsel

ELIZABETH ROBINSON
Chair, Opinion Committee

Rick Gilpin
Assistant Attorney General - Opinion Committee
