    The Attorney              General             of Texas
                       October    15,      1979




Honorable M. L. Brockette                   Opinion No. MVJ-
                                                           68
Commissioner of Education
Texas Education Agency                      Re: Whether a school board may
201East Eleventh Street                     authorize supplemental compensa-
Austin, Texas 78701                         tion.

Dear Commissioner Brockette:

      You have requested our opinion concerning the compensation to be
paid teachers and other employees of the Fort Worth Independent School
District. In the first of your two questions you ask:

           Does article 3, section 53 of the Texas Constitution
           prohibit e school district from giving a bonus or
           making salary increases after the commencement of
           the school and fiscal year and after services for such
           year have already been rendered by teachers and
           other employees and their contracts of employment
           performed at least fin part?

Section 53 provides that 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, or a contract has been entered into, end
           performed in whole or in part. . . .

This section embraces school districts. Herlingen Ind. Sch. Diit. v. Page, 48
S.W.2d 983 (Tex. 1932). It is clear that additional compensation may not be
paid for past services rendered. Empire Gas end Fuel Co. v. State, 47
S.W.2d 265 (Tex. 1932); Pierson v. Galveston County, 131S.W.2d 27 (Tex.
Civ. App. - Austin 1939, no writ). Your question raises en issue of your
authority to give teachers a salary increase for the remaining portion of .a
school year for which they are under contract et e lower salary.

     The Port Worth IndependentSchool District has adopted the continuing
contract basis for employment of teachers. Educ. Code S§ 13.101- 13Jl6.
Honorable M. L. Brockette      -   Page TWO (MW-68 )



Under this system, all teachers are to be employed under either a “probationary contract”
or a  “continuingcontract.” Educ. Code 5 13.1OL Teachers under a probationary contract
are employed for a fixed term of less than three years as stated in the contract. Educ.
Code S 13.102. Teachers under a continuing contract are entitled to continue employment
with the school district without annualreappointment unlem released fdr reasons stated in
the statute. Educ. Code SS 13.107,13.109. AR contracts shall be in writing in the form
approved by the commissioner of education. Educ. Code S 13.1OLWe have been furnished
with form contracts which provide for an annual salary as authorized by the approved
salary schedule of the school district. The district approves the salary schedule in its
annualbudget which it generally adopts toward the end of August. Educ. Code SS 23.42 -
23.45. Thus, the teacher agrees to work for each year at the salary annuallyapproved by
the district.

       Article III, section 53 expressly prohibits the grant of extra compensation after “a
contract has been entered into, and performed in whole or in part. . . .” See Devon v. City
of San Antonio, 443 S.W.2d 598 (Tex. Civ. App. - Waco 1969, writ rep&Shelby County v.
Gibson, 44 SW. 302 (Tex. Civ. App. 1898, writ ref’d). 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. Rhoads Drilling Co. v. Allred, 70 S.W.Bd
576 (Tex. 1934); Bardiion v. Beard, 430 S.W.Bd53 ‘(Tex. Civ. App. - Dallas 1968,writ rerd
n.r.e.); -see Educ. Code S 13.ll6.

      You also ask:

             May a school district make e 1egaJlybiding commitment for salary
             increases or supplementalcompensation to its employees for future
             school end fiscal years, et a time when the availability of eligible
             funds for such years cannot be determined, and notwithstandingthe
             rule which ~provides that e contract calling for expenditures in
             excess of current year funds creates a deficiency debt which is
             beyond the authority of a school district?
      It is the law of this state that school districts may not create deficiency debts.
Educ. Code S 22.08; National Surety Corp. v. Friendswood Ind Sch. Dist., 433 S.W.2d 690
(Tex. 1968); Aldine Ind Sch. Dmt. v. Stendley 280 S.W.2d 578, 586 (Tex. 1955); Collier v.
Peacock, 54 S.W. 1025(Tex. 1900). The court in Aldine said:

             It has been held for many years that the trustees of 8 school
             district cannot make a contract for the employment of teachers to
             an amount greeter than the school funds belonging to the district
             that year; end that any debt contracted greater than that would be
             8 violation of law, and constitute no claim against the district. . . .

&et   586.




                                            P. 210
Honorable M. L. Brockette    -     Page Three   (Mw-68)



     In Collier the court said:

           [Tlhe trustees were not authorized to contract any debt which
           would cause e deficiency in the school fund of the district. In other
           words, they could not contract debts in the employment of teachers
           to an amount greater then the school fund apportioned to that
           district for that scholastic year. This limitation won the power of
           the trustees in makii the contract with the teachers necessarily
           Emits the payment of the debts that might be contracted to the
           amount of the fund which belonged to the district for that yeer,
           and any debt contracted greater than that would be a violation of
           the law, and constitute no claim against the district.

E et 1026.

      We believe that the board may adopt a policy that salary increases of certain
amounts will be me& in future years. That action in itself does not obligate any money to
be expended. The obligation arises only when employment contracts are executed and the
board’s policy with regard to the salary increases becomes e pert of the employment
contract and a legally binding commitment. However, such commitment does not create e
deficiency debt any more than entering into a three year teaching contract which covers
gearS for which the availability of funds cannot be determined. The board’s obligation to
grant pay increases is not fixed. School personnel, even though they are under contract to
wopk, may be released due to the reductions necemary to come within the revenue
available for any one school vear. Sec. 13.BO(6). The oronosed salarv increases would not
be a fixed debt-so as to create a deficiency debt. -See Charles Scr&er’s Sons v. Marrs,
262 S.W. 722 (Tex. 1924).

                                      SUMMARY

           An independent school district may provide for salary increases for
           teachers and employees for a current school year if it receives
           additional consideration. It may also adopt a policy to provide
           additional salary increases for subsequent years; however, the
           obligation arises only when the contracts are executed




                                            Attorney General of Texas
JOHN W. FAINTER, JR.
First Assistant Attorney General
TED L. HARTLEY
Executive Assistant Attorney General




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Honorable M. L. Brockette       -   Page Four    (NW-68)



Prepared by David B. Brooks
end SusanGarrison
Assistant Attorneys General

APPROVED:
OPINIONCOMMITTEE

C. Robert Heath, Chairman
Martha Allen
David B. Brooks
SusanGarrison
William G Reid
Bruce Youngblood




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