                             The Attorwy’ General                     of Texas
                                                December 14. 1984
JIM MAlTOX
Attorney Genarrl



3upwftacowl SUlldlW         Mr. John 8. Car)iIr                               opinion   no.   J&l-255
         12646
P. 0. soor                  chairuct
Ausllft.TX mrt- 2646        Taur State UniVer4ity    tty8ta                    Re:      Whether a university    may
6tW76.2661                  505 Sam Rourtoa BufldfnB                           vithhold     the   ralary     of   .n
rafel aw674.1*7                              78701                             employee vho fail8      to pay fees
Tahcoplu 6tU416.626fl
                            Austin.  Texar
                                                                             -amerred      lgeinat the employee
                                                                              .by the university,      and related
714Jackson,Wt4 766                                                             questiona
DaIIw,lx. 76aTz46m
a1ul42.6944
                            Dear Mr. Cergile:

4624Albmll Ave..Suite166           You have aeked our opinion        about the authority        of a university
El Paso.TX. 789052763       within     the Texas State Uaivereity       Syetem “to withhold       Beychect      fron
91-                         university      employe~aa vho are indebted      to the university.”          Specif i-
                     __
                            ully,     you ark whel:her a univcraity      hae luthority     to vithhold    all or a
1001Taras.SUN4766           portion      of the payc.heck of en &ployee        who:    (1) he      failed    to pay
Nowton.lx. nowcJ11t         feee caressed       againat him for violations     of university     perking reguk-
71-                         tione;     or (2) heo paid for goods or aervicea              prwided      him by the
                            university      vith a ‘check later  returned    for fnsufficimt        funde; or (3)
                            hea been ordered by l atate or federal            court to pay monetery damager
SW smadw*y.sun. 312
                            (or make restitutitnl)      to the university.
LuBmeh.lx. 7646t5476
6w747.62s6
                                  Subaeetion    (a) of article     6350,   V.T.C.S..    declarer:
43W N. lanth Wt. 6                      Do varrwlt  rh~ll be irated    to eny person indebted                   .
MaAflaft,
        lx. 7860%taw
6tM4647                                 or oving delinquent     tuer  to the State. or to his
                                        agent o r ldgnee,       until ruch debt or tuee    are
                                        peid.           ..._ ~~
!LooM*ln Pf4z.a.
               6ute 466
San Antonlo.lx. 762osz767
                            Siailerly,       you edvire,    the Texar State       Unioerrity     Syctee    and it*
6li?fZZ64161
                            component       inatitutlott~,    through    their    boardo      of  regents,      have
                            promAgated        rulee tqd regulations      stating    (in eraence)     that neither
An EqualOpp~tunltyf         salary     peynentr nor other payments vi11 be -de             to an employee while
 AfflfmWW Act1011
               Employw      he 10 indebted         to the university.    the eyrtem.    or the etete.        By the
                            expraae terma of tlx?ir employment contracta,            ve understand.     univaraity
                            employees agree to obey and l         bide by univereity     rule. and regulationa.

                                   In Benton v. -Wilaer-Rutchinr        Independent    School Dietrfct,      662
                            S.U.2d 696 (Tex. App. - Dall~e 1983. vrit            diam’d).   a echo01 district
                            resorted    to the s&lf-help      of deducting    from itr teachera’     paycheck8
                            amounts    the dirtzkt       claimed   had been overpaid         the teacher8     in
                            previour   yearr.   lhc court noted the strong policy            of thin state    to
                            protect   currect vagea from the claime of creditors.          saying:
                                                                                            .
                                                                                                  i’       h
tlr.   John S. Cargile      - Page 2        (J?l-2U)




                  Article        XVI )    IBection      28.       of    the      Texas
              Constitution       provitlea   that    currant vases rhall not
              be subject       to gamirhment.         and article        3836(a)(7)
              [V.T.C.S.]      providecl that currant vagea are ‘axampt
              from attachment,           execution         and every         type   of
              seizure      for     the   eatiafsction          of    liabilities.’
              Although the diatrkt           msy be correct          in contending
              that its actions          cannot be technically              described
              AA either        a garnlehment         or an attachment,             the
              asserted     remedy of oelf-halp          la even more strongly
              opposed to the po:licy underlying                   this limitation
              of judicial        remedies,     since    it    IA not aubject         to
              similar     judicial     aaEeguarde.          A creditor,        luch aa
              the district        c1sim11 to be. ahould not be pcinitted
              to resort to aelf-help              to impound currant             wages
              th a tlre not aubjact         to garnishment.




        Briefs    from the univer~sitiee     and the lyatem auggeat             that    the
 Benton case should not spplp to the univeraitiea                 because,     they aey:
‘mbosrd           of regenta of a state      institution      has considerably        more
 authority     in these matters  than the truatee6         of sn independent        school
 district,     and the local school board had not eatabliahed              s e         rule
 prohibiting     payments to indebted    employeea;       snd (2) the incorporation
 of the regenta’ rule into thl! employment contract8              at the univeraitieo
 “constitutes       an agreement   euthoriaiog        withholding     of    s debtor’s
 paycheck” that take6 it out WE the Benton rationale.

        The Benton     court,      im, responding        to the      school    districta’
 la a er tiothat
              n    the district       could resort     to relf-help     because it had A               .
 duty to recover public funds ipaid out under a mistake of fact,                    did eay
 the eomon     lav  rule    chit   mutual     debts   do  not   extinguish    each     other
 applies  “in the absence of qreement              or judicial    action.”     662 S.W.Zd
 at 698. (emphasis      added).      Iiovever,    WC do not believe       the employment
 contract    language     utilized      by the universities           -    at leeat       the
 language submitted      to us -- c,watitutea         such an agreement.

        An “agreement” in the :senae used by the Benton court meana s
 contractually       enforceable    a(;r’aement or consent         comething          may be
 done.     Cf. McCorkel v. Dist$ct           Trustees.       121 S.l?.Zd 1048 (Tex. Civ.
 APP* - Gtland          1938. no vrj.t.).     The system rnd the univcraities            cite
 Pazekas v. University           of Houston.
                                       --         565    S.W.2d   299   (tex.  Civ.   App.    -
 Houston [ 1st Dist.]        1978. writ      ref’d     n.r.e.1.    appeal dismissed.      440
 U.S. 952 (1979). to support 1:heir claim thet university                     employees.    by
 accepting       their     employmen!:     contracts,        contractually      agree    that
 university     officials     may wi:hhold       their    paychecks in accordance        with
 university      rules    or rcgulatt>ns.        Our reading       of Fazekas leads co a
 different     result.



                                             p. 1135
n


    Mr. John S. Cargile        - Page 3      (JX-255)




          Mr.      F6xekAA.      a   tenured     professor,      loet    the   CAaa.             The
    univeraity’a      rules,    the court    decided , could be enforced against                 him
    a6 A matter of lav.         rather’ t’han AA A matter       of contract,    b8CAUAe          the
    contractual      obligation6     of ‘Ma employmant CAntract         vere  “subject           to”
    (&.         “aubordin6te      to.” “oubaervient        to,”   or “limited      by”)          the
    gave-ntal          power of the ~univeraity          to change     it6   rule8    At         it.
    discretion.       The court said:

                   By executing    tbear InatrUmenta [sequential        employ-
                   unt   contr6ct6]~     I?r o fea a oFAte~A
                                                          r       lcknwledged
                   th6t him contractual       rights     vere  aubordin6te    to
                   the rule6    and regulations      issued   by the Board of
                   Regents.
                                                                  -
    565   S.U.2d    307.

            An acknowledgment         th6t the lav diCtAteA A pSrtiCUhr                     rASUlt   i8
    not an agreement that aome~:hing my be done; it ie a recognition                                 of
    the existence          of a legal     power beyond the reach of the p6rtiea                      to
    alter.       “Consent” implies        c.n. agreement       to something       vhich     could not
    exist     except for the consent and which the “consenting”                          party has A
    right to forbid.            See Aguirre v. State,           7 S.W.Zd 76 (Tu.          Grim. App.
    1928); Dixon v. St=.              2 S,,\f.2d 272 (Tex. Grim. App. 1928); Reynolds
    v.    Baker,      191 S.U.Zd 959 (Ark.              1946);     State     v.    Public      Service
    Cosmiaaion.       192 S.U. 958 (No. 1917); 1% C.J.S.,                    Consent at 575. We
    do not think university             amployeea can be said to have “consented                    to”
    or “agreed          to" vhataver        rules     and     regul6tiona       the     regents     m=Y
    prossJlgate       merely      because     they     acknowledge        in    their      employment
    contracts       the legal power ,>.I the regents              as public      officers      to make
    valid      rulee     and regulationr~.        particularly       if    the precise        rule or
    regulation       at    issue vaa not brought to their attention                    at the time.
    Cf.
    -      Attorney     General    Opinion   O-6671     (1946)    (private     employers).

            Moreover, in this caaa , unlilrc the Fazekaa situation.               the “aelf-
     help” rulea      and regul6tious      of the univerritiea        run counter      to the
     policy    of article      XVI,   a’
                                       !ction    28   of   the  Texan    Constitution      and
     Article    3836(a)(7)    of the statutes      [now Property Code 542.002(S)].            ma
     did the action        taken by t!te      school   district    in Benton.        Judicial
     safeguards    are   absent here, .UJ there.       Cf. Texas Technological        College
     v. Fry, 288 S.W.Zd 799 (Tex. Civ. App. Grille                   1956, no writ).

            Valid rules and regula,tions      of universities       exercising   delegated
     paver    do have the force         of law. but rules          and regulations      that
     constitute    6 clear abuse o? discrcticn         or a violation      of lav do not.
     See Foley v. Benedict,        55 S.W.Zd 805 (Tex.      1932).     In our opinion,      a
     university    withfn the Texas, State University         System may not resort        to
     the self-help     of vithholdirlp;   an employee’s    paycheck for current wages
      to enforce    more cffecrivcly      the collection      oi sums chc cmplovee         is
     said to we the univerriry.
                                                                                                 .    .   .   .


Hr. John S. Car8118 - Page 1                m-255)




       Article      4350, V.T.C.S.,      providing      thst no warrsnt shsll          be issued
any permon indebted            to the state , wee not dimcussed                  by the Bcnton
court.      In Attorney        Crnaral~ Opinion       MU-416 (1981).         however,     a-
4350 vss       ssid    to luthoriro        vithholdins       varraats      only on s propar
statutory     slleatioa       of the existence         of the debt. either by ssraemeot
or by lawfully           effective     ‘hcsns and that          no suthority         uisted      to
withhold      varrsnts      vhere    there      is s contrary         ststute.       We believe
section    42.002(8)       of the Property Coda [forwrly                 srticle    3836(a)(7).
V.T.C.S.].       aad section 28 w! lrtlcla               XVI of the Texas Constitution
constitute      ‘c o ntr altatutam”
                                 ry           lo this context.          Sea Attorney      Ganeral
opinion    O-4655 (1942).          See slao Attorney         CanerslTtter          Advisory     No.
57 (1973).        _Cf. Sherman v. Eatcher,
                                        --          299   S.U.  227    (Tax.    1927).

      In viev of thlr resolr.tion     of the mater;    it ir unnecesrary      to
determine   whether  assessed    parking   fines   are “debts”     vithin    the
meaning of srticle      6350 snd     the   rules   and rcpulations       of the
uaivar&ies.      But see DLran v. State.       2 Ta.  482-(1847);      Ra parts
Robertson.   11 S.U. 669 G:       Grim. App. 1689).    Cf. Adslr v. Martin,
595 S.W.fd 313 (Tea. 1980); Attorney Caneral OpitixO-5249            (1943).



                  A university  vd,thin the Texas Stste University
              System may not resort.     to the self-help  of vith-
              holding an employees psycheck for current vages to
              enforce   more effectively    the collection  of sums
              the employee is said to ova the univerrityi




                                                            .lrn       IATTOX
                                                            Attorney    General   of Texas

Ton GREEN
First    Assistaat     Attorney       Caueral

DAVIDR. RICRARDS
ExecutiveAssistant Attorney                General

RICK GILPIN
Chairman, Opinion          Comittee

 Prepsred    by Bruce Youngblood
 AESiEtEnt     AttOlVl6y    &3b6r61




                                                p.   1137
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                  Mr. John 5. C6rgila - Page 3   (JX-2%)




                  APPROVED:
                  OPINIONCOt@fITTEE

                  Rick  Gilpin,   Chairmen
                  Coliu Carl
                  Susan G6rri6oa
                  Tony Guillory
                  Jim XoellinSer
                  Jeunifer   Riggs
                  Nancy Sutton
                  Rruce Youngblood
