                                              The Attorney                General of Texas
                                                                      August 4, 1983
    JIM MATTOX
    Attorney General



    Supreme   Court Building
                                             Honorable Carl A. Parker                        Opinion No. JM-53
    P. 0. Box 12548                          Chairman
    Austin, TX. 78711. 2548                  Committee on Education                          Re:   Whether union dues and
    5121475-2501                             Texas State Senate                              other payroll deductions con-
    Telex    910/874-1367                    P. 0. Box 12068, Capitol Station                stitute an "indebtedness" under
    Telecopier      5121475-0266
                                             Austin, Texas   78711                           section 2.07 of the Education
                                                                                             Code
    1607 Main St.. Suite 1400
    Dallas.   TX. 75201.4709                 Dear Senator Parker:
    2141742.6944

                                                  You have requested our opinion regarding certain payroll
    4624 Alberta       Ave.. Suite     160   deductions for a married employee of an independent school district.
    El Paso, TX.       79905.2793            Specifically, you ask whether section 2.07 of the Texas Education Code
    9151533.3464                             requires consent of the married employee's spouse for the following
P
                                             types of deductions:
      20 Dallas Ave.. Suite 202
    Houston,   TX. 77002-6966                            1. payment of dues             to    a   union    or   other
    7131650-0666                                      employee organization;

                                                         2. payment         of   a   donation     to   a   charitable
    606 Broadway.          Suite 312
    Lubbock.  TX.        79401-3479
                                                      organization;
    8061747-5236
                                                          3. payment of installments on a loan from a
                                                       financial institution; or
    4309 N. Tenth. Suite S
    McAllen,     TX. 76501-1665
    5121682.4547
                                                         4. payment of the premiums on an insurance
                                                      policy.

     200 Main Plaza. Suite 400                    Section 2.07 of the Education Code, formerly article 2883a.
     San Antonio.  TX. 78205.2797
                                             V.T.C.S., provides in pertinent part that:
     5121225.4191

                                                         (b) Any    teacher's   or   school   employee's
     An Equal       Opportunity/                      assignment, pledge, or transfer of his [or her]
     Affirmative      Action     Employer             salary or wages as security for indebtedness -- or
                                                      any interest or part of his [or her] salary or
                                                      wages -- then due or which may become due under an
                                                      existing   contract   of   employment   shall   be
                                                      enforceable only under the following conditions:

                                                          .   .   .   .




                                                                           p. 220
Honorable Carl A. Parker - Page 2     (JM-53)




             (2) Any assignment, pledge, or transfer must
          be in writing and acknowledged as required for the
          acknowledgment of     deeds  or   other   recorded
          instruments, and if executed by a married person,
          it must also be executed and acknowledged in a
          like manner by his or her spouse;. . . and

             (3) An assignment, pledge, or transfer shall
          be enforceable only to the extent that the
          indebtedness it secures is a valid and enforceable
          obligation. (Emphasis added).

This section authorizes salary or wage deductions "as security for
indebtedness, that is, to pay an obligation to a third party" which is
both valid and enforceable. Attorney General Opinion MW-566 (1982).
Therefore, your question is, in essence, whether deductions of the
type listed above are valid and enforceable obligations, i.e.,
"indebtedness," and thus require consent of the employee's spouse.

     Indebtedness has been characterized as "that for which an action
of debt would lie; a sum of money due by certain and express
agreement.'I Merriman V. Swift and Company. 204 S.W. 775, 776 (Tex.
Civ. App. - Fort Worth 1918, writ ref'd). Article 3.53, section 2B(2)
of the Insurance Code defines indebtedness as "the total amount
payable by a debtor to a creditor in connection with a loan or other
credit transaction." The Debt Collection Practices Act defines "debt"
as "any obligation or alleged obligation arising out of a consumer
transaction." V.T.C.S. art. 5069-11.01. Black's Law Dictionary, 5th
edition, defines "debt" as a "specified sum of money owing to one
person from another, including not only obligation of debtor to pay
but right of creditor to receive and enforce payment," (citing State
v. Ducey, 266 N.E.2d 233, 235 (Ohio Ct. App. 1970)). It is clear,
then. that in order for there to be an "indebtednessuthere must be an
obligation, legally enforceable against the debtor, to pay a
determinable sum of money. With this in mind, we shall examine each
of the deductions about which you inquire.

     This office has recognized the authority of school district
employees to approve and school districts to deduct union dues
checkoffs and hospitalization plan premiums.        Attorney General
Opinions M-613 (1970); o-4033, O-3474 (1941); O-2141 (1940). This
office has also determined that section 2.07 was not impliedly
repealed by section 5.22 of the Texas Family Code which provides that
personal earnings are within the sole management of each spouse.
Attorney General Opinion MW-485 (1982). These opinions, however, do
not address the issue of indebtedness and their silence on this matter
is not to be construed as a tacit conclusion that such deductions
constitute indebtedness. On the contrary, this office has recognized




                                p. 221
     Honorable Carl A. Parker - Page 3       (JM-53)




     that such deductions are voluntary in nature and impose no obligation
     on either employee or employer:

               The proposed plan imposes no financial obligation
               ,on the part of the district. The teachers would
               enter the plan on a purely voluntary basis, and we
               see no reason why the teachers may not authorize
               the district to make deductions from their
               salaries. . .    As we have mentioned above,
               narticioation in the elan is ourelv voluntary:
               iherefore, the teachers could withdraw both their
               membership in the plan and their authorization to
               the district to make deductions at any time.
               (Emphasis added).

     Attorney General Opinion O-4033 (1941). Furthermore, the Texas
     Right-To-Work Law, article 5207a, V.T.C.S., and article 5154~ (as
     applied to public employees) protect the right of all persons to
     accept or decline membership in labor unions. Lunsford v. City of
     Bryan, 297 S.W.2d 115, 116 (Tex. 1957). Accordingly, we conclude
     that, since checkoff authorizations for school district employees are
     voluntary and revocable at will, it follows that consent of married
,-   employees' spouses to union dues deductions is not required by section
     2.07 of the Education Code.

          Donations to charitable organizations deducted from salary or
     wages likewise need not receive approval of the married employee's
     spouse. Charitable donations are similar to union dues in that the
     employee undertakes no enforceable obligation to pay any sum; rather,
     the deduction system serves as an alternate method of donation that
     the employee may exercise at his or her discretion. As with dues
     checkoffs, the purpose of charitable deductions is to provide
     employee, employer, and charitable organization with a simple,
     efficient method of transferring funds. The essential requisites for
     a charitable donation or gift are (1) capacity of the donor, (2)
     intention of the donor to make a gift, (3) completed delivery of the
     gift to or for the donee, and (4) acceptance of the gift by the donee.
     In re Greenberg's Will, 286 N.Y.S. 56, 58 (N.Y. Surrogate's Ct. 1936),
     Black's Law Dictionary 619 (5th ed. 1979). Moreover, a valid donation
     requires the donor to divest himself or herself of title and control
     of the gift without expectation of its return. Walker v. Commissioner
     of Internal Revenue, 91 F.2d 297, 298 (5th Cir. 1937). A charitable
     deduction, therefore, does not become a donation until it has been
     transferred to the particular charity. The authorization for such a
     deduction does not amount to an enforceable obligation and may be
     terminated by the employee at any time. Consequently, such deductions
     do not constitute indebtedness within the purview of section 2.07.
”




                                         p. 222
Honorable Carl A. Parker - Page 4            (JM-53)




     Deductions for payments of installments on loans and insurance
premiums are more likely to be categorized as indebtedness, for either
may arise in connection-with a credit or consumer transaction. See
Ins. Code art. 3.53, §2B(5); V.T.C.S. art. 5069-11.01. However, the
amount of indebtedness, if any, and method of repayment are fact
determinations, dependent upon the terms of each contract. Absent
more specific information concerning such deductions, we cannot
categorically conclude that they constitute indebtedness as required
by section 2.07.

                               SUMMARY

            Section 2.07 of the Texas Education Code
         requires a married employee to obtain his or her
         spouse's consent for salary deductions only when
         such deductions are offered as security for a
         valid and enforceable obligation. Deductions for
         dues and charitable donations do not require
         spouse's consent. Deductions for loan payments
         and insurance premiums may constitute indebtedness
         but such a determination is dependent upon the
         terms of individual contracts.

                                             Very truly yours


                                         J        4        /I*
                                             JIM     MATTOX
                                             Attorney General of Texas

TOM GREEN
First Assistant Attorney General

DAVID R. RICHARDS
Executive Assistant Attorney General

Prepared by Rick Gilpin
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Rick Gilpin, Acting Chairman
Jon Bible
David Brooks
Colin Carl
Jim Moellinger
Nancy Sutton




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