                      The Attorney General of Texas
                                        December 3,       1979
MARK WHITE
Attorney Gan~ml


                  Honorable Rene A. Querra                  Opinion No.   W-93
                  Criminal ,Ditrict Attorney Pro Tern
                  Hidalgo County                            Re: Payment by board of trustees
                  Edinburg, Texas 78539                     of an independent school district
                                                            for expenses incurred by relatives
                                                            of board members or other non-
                                                            board persons who attended school
                                                            board-related activities.

                  Dear Mr. Guerra:

                         You ask whether the trustees of an independent school district may
                  pay expenses incurred by spouses or other persons who accompany school
                  board members to board-related activities, even thou@ these persons are
                  not school board memben or emplaydes of the school dbtrict     YOUfnform
                  us that school board members of an independent school district have
                  attended school-related  conventions accompanied by their spouses.     The
                  board of trustees has authorfxed payment for theactual expenses, including
                  travel, meals, and l-g,        incurred by spouses of board members in
                  attending conventions.

                         The board’s authority to pay expenses incurred by board members in
                  attending school-related convenUons derives from the folbwing proviston of
                  the Education Code:

                                Looal s&o1    funda . . . may be used for the
                             purposes enumerated for state and county funds . . .
                             and for other purposes necessary in the conduct of       ,
                             public schools to be detamfned    by the board of
                             trusteea..  .

                  Educ. Code S 20.48(c). In Attorney General Opinion H-l23 0973) thfs office
                  considered whether a school board member could be reimbursed for his
                  expenses fn attending a convention of school admtnfstrators.      He had been
                  designated a delegate and was to partfcipate        in a program concerning
                  matters important to the school distrfc& The opfnion concluded that the
                  school board oould pay these expenses .where it determined that payment
                  was “necessary in the conduct of the public schools.” Each determination
                  and the legality of a particular expenditure was ultimately for the courts. If




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        Honorable Rene A. Guerra      -   Page Two        (MW-9 3)



        the expenditure served only private ends and did not have a public purpose it would make
        an unconstitutional grant of public funds in violation of article III, sections 51 and 52 of
        the Texas Constitution.  E Attorney General Cpinfon H-70 (l973).

               The school board generally has discretion to determine whether a Particular payment
        is “necessary in the conduct of the public s~hoob%~ However, in our c&nion the board may
        not as a matter of law pay the expenses of persons who have no responsibilities or &ties
         to perform for the board and whose connection with public school matten is based solely
        on their relationship of blood, marriage, or friendship with a board member. You have
        submitted no facts indicating that the presence of e school board member’s spotwe,
        relative or other associate et a convention will serve school purposes. The presence of
        these persons et e convention appears to be purely so&l. Altho4gh a spouse’s presence et
        e convention may facilitate personal contact among administrators and thaw contribute in
        some small way to school purposes, we believe the benefit accruing to the school district
        is too minimal to sustain the expenditure. Cf. Warwick v. United States, 236 P. Supp. 761
        (E.D. Ve. 1964) (deductibility from federal income tax return of a wife’s travel expenses).

              We note that Attorney General Opinion H-1099 (1977) &cluded             that spouses of
        public officials could in some cases receive free transportation     on state-owned aircraft
        where space is available. Whether this benefit could be provided legally depended in part
        on the nature of the office, on the spouse% traditional role, and the spouse’s connection
        with a particular trip. This opinion must be limited to its facts, and you have presented no
        facts and we are aware of none which would establish a public purpose served by the
        spouse*s attendance at a convention.

                You next ask whether school board members who received payments for expenses
        incurred by non-members should be required to reimburse the school district.              Where
        payment is made from public funds under mistake of law, the public body may seek
        reimbursement.     City of Taylor v; ?Io&~q 166 S.W.2d 61 (Tex. 1945); Cameron County v.
        pox, 2 S.W.td 433 fTex. Comm. App. 1929, jdgmt adopted). This provides an exception to
        the general rule that money paid under a mutual mistake of law may not be recovered
        City-of Taylor v. Hodxe supra; Gould v. City of El Peso, 440 S.W.2d.696 (Tex. Civ. App.
        - El Peso 1969. writ re      nr.e.); Nunn-Warren Pub. ,Co. v. Hutchinson County, 45 SW.2d
        651 (Tex. Civ. App.     - Amari illo 1992. writ rePd).      om are     ounty of Galveston v.
        Gorhem. 49 Tex. 279 (1679h Steaall v. h&annan CountvTf;   ,” -&&d        llll (Tax. Civ. App. -
         Waco 1940, writ di&      j,dgmt car.). Although the court in Hayward v. City of Corpus
        $Zti,     195 S.W.?d 995 (Tex. Civ. App. - Waco 1946, writ raf’d n&a.) stated in dlcta that
              3    payments made by a city under mistake of law could not be recovered, its
        decision actually rested on the Sknd       that the statute of limitations barred recovery.
        Thus, the school board has authority to require reimbursement of travel expenses illegally
        paid See also Educ. Code S 23.26(a) (trustees may sue and be sued).

              ‘As a general rule, school trustees have broad powers of control and management
        over the school district, and the courts will not interfere unleas a clear abtme of power and
        discretion appears. Nichols v. Aldine Ind School Dist., 356 S.W.2d 182 (Tax. Civ. App. -
        Houston 1962, no writ); e SSIC v.                                 330 S.W.2d 708 (Tex. Civ.




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          Honorable Rene A. Querre       -     Page Three     (NW-931



          App. - Dallas 1959, writ ref’d n.r.e.X Where the school board member9 thcmeeka have
          received unauthorized     travel expenses, their own self-interest    prevents them from
          impartially   deciding to forego repayment.       We believe their mnml discretion is
          significantly  limited in this case. g     Penal Code S 39.01 (official misconduct).   We
          believe the board may exercise reasonable discretion in seeking reimbumment          from
          persons no longer cn the board In making its decision it can consider arch factors as the
          amount of funds to be reimbursed, the ease of collection, and the legal and other costs
          incident to collection.

                                                       SUMMARY

                     The trustees of an independent school district may not adinarily
                     pay the travel expenses of spouses and other persons who
                     accompany school board members to board-related activities     The
                     board has authority to seek reimament      for payments made for
                     such travel exoensen




          JOHN W. FAINTER, JR.
          First Assistant ‘Attorney General

          TED L. HARTLEY
          Executive Assistant Attorney       General

          Prepared by Susan Garrison
          Assistant Attorney Qeneral

          APPROVED:
          OPINIONCOMMfTTRE

          C. Robert Heath, Chairman
          David B. Brooks
          Bob Gammage
          Susan Garrison
          Rick Gilpin
          William G Reid
          Bruce Youngblood
          Lenny Zwiener




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