                             ATTORNEY GENERAL OF TEXAS
                                          GREG       ABBOTT




                                               July 3, 2008



Mr. Robert Scott                                  Opinion No. GA-0641
Commissioner of Education
Texas Education Agency                            Re: Proper formula under section 21.402, Education
1701 North Congress Avenue                        Code, for determining the required contributions by a
Austin, Texas 78701-1494                          school district to the Teacher Retirement System for
                                                  compensation that exceeds the statutory minimum
                                                  (RQ-0663-GA)

Dear Commissioner Scott:

       Texas Government Code section 825.405(a) requires a school district to pay to the Teacher
Retirement System a contribution for certain employees who receive more than the minimum salary
under provisions of the Education Code. You ask us to advise you on the

                proper construction ofthe Texas Education Code, Section 21.402, to
                determine the minimum salary to be used in accordance with the
                Texas Government Code, Section 825.405, to calculate the required
                contributions by school districts to the Teacher Retirement System for
                compensation above the statutory minimum salary[.]l

        To address your question, we begin with title 8, subtitle C of the Government Code, which
contains provisions governing the Teacher Retirement System ("TRS"). See TEX. GOV'T CODE ANN.
§§ 821.001-830.205 (Vernon 2004 & Supp. 2007) (title VIII, subtitle C). Individual members of
TRS contribute a percentage oftheir compensation into the TRS benefit system. See ide § 825 .403(a)
(Vernon Supp. 2007) (providing for a 6.4 percent member contribution); see also ide §§ 821.002
(Vernon 2004) (stating that a purpose of subtitle C is to "establish a program of benefits for
members"), .008 (stating that a purpose ofthe retirement system is to "deliver the benefits provided
by statute"), 824.001-.807 (Vernon 2004 & Supp. 2007) (providing for service retirement, disability
retirement, and death benefits). The State of Texas is also required to make a contribution to TRS.
See TEX. CONST. art. XVI, § 67(b)(1) (requiring the state to establish a Teacher Retirement System),
(b)(3) (requiring the state to contribute not "less than six percent nor more than 10 percent of the


         lLetter from Mr. Robert Scott, Commissioner of Education, Texas Education Agency, to Honorable Greg
Abbott, Attorney General of Texas, at 1 (Dec. 21, 2007) (on file with the Opinion Committee, also available at
http://www.texasattorneygeneral.gOY) [hereinafter Request Letter].
Mr. Robert Scott - Page 2                               (GA-0641)




aggregate compensation paid to individuals participating in the system"); TEX. GOV'T CODE ANN.
§§ 825.404(a) (Vernon Supp. 2007) (providing for state contribution in amount of "at least six and
not more than 10 percent"), .404(a-l) (establishing rate for "the state fiscal biennium beginning
September 1, 2007" in an amount "equal to 6.58 of the aggregate annual compensation of all
members of the retirement system during that fiscal year").

       In section 825.405, the Legislature requires a school district to pay a portion of the state's
contribution. 2 See TEX. GOV'T CODE ANN. § 825.405(a) (Vernon 2004). The amount required of
the employing school district is the "state's contribution on the portion of the member's salary that
exceeds the statutory minimum." Id. § 825.405(a). Section 825.405(b) provides the formula by
which the statutory minimum salary is determined, which is

                  the statutory minimum salary is the salary provided by Section 21.402
                  ... , Education Code, multiplied by the cost of education a4justment
                  applicable under Section 42.1 02, Education Code, to the district in
                  which the member is employed.

Id. § 825.405(b). Your question requires us to construe Education Code section 21.402 and
determine the minimum salary that is used as a basis to calculate the school district's contribution
under Government Code section 825.405(b). Education Code section 21.402 provides in relevant
part:

                  (a) Except as provided by Subsection (d), (e), or (f), a school district
                  must pay each classroom teacher, full-time librarian, full-time
                  counselor ..., or full-time school nurse not less than the minimum
                  monthly salary, based on the employee's level of experience in
                  addition to other factors, as determined by commissioner rule,
                  determined by the following formula:

                            where: MS=SF x FS

                  "MS" is the minimum monthly salary
                  "SF" is the applicable salary factor specified by Subsection (c); and


          2A brief received in connection with your request raises the argument that an improper construction of section

21.402 may be unconstitutional. See Brief from David Thompson, Bracewell & Giuliani, LLP, to Nancy Fuller, Chair,
Opinion Committee, Office ofAttorney General, at 1-5 (Feb. 15, 2008) (on file with the Opinion Committee). The brief
argues that article XVI, section 67's requirement that the state contribute six percent ofthe aggregate salaries is violated
if section 21.402 is construed to not include the salary increase in section 21.402(c-l) because the biennium rate of 6.56
percent multiplied by the smaller amount "is likely to result in a State contribution to TRS of less tha[n] 6% of aggregate
salaries." See id at 6. Because consideration of that constitutional question requires consideration of facts, it is one we
cannot address. See Tex. Att'y Gen. Ope No. GA-0317 (2005) at 9 (stating in constitutional question context that "[t]his
office cannot find facts or resolve questions in an attorney general opinion"). In addition, you do not ask us to consider
any constitutional questions but instead ask us only to construe section 21.402 and determine the proper formula under
that section. See generally Request Letter, supra note 1. Accordingly, we limit our opinion to your question.
Mr. Robert Scott - Page 3                       (GA-0641)




               "FS" is the amount, as determined by the commissioner under
               Subsection (b), of state and local funds per weighted student, [as
               further specified]

               (b)

               (c) [listing as the salary factors per step a multiplier figure for years
               of experience from 0 years to 20 years and over]

               (d) A classroom teacher, full-time librarian, full-time counselor ..
               ., or a full-time school nurse employed by a school district in the
               2006- 2007 school year is, as long as the employee is employed by
               the same district, entitled to a salary that is at least equal to the salary
               the employee received for the 2006-2007 school year.

TEX. EDUC. CODE ANN. § 21.402 (Vernon Supp. 2007).

       Section 21.402, subsection {c-1), which expired on September 1, 2007, is also relevant to
your question. Subsection (c-l), adopted by the Seventy-ninth Legislature, provided that

               (c-l ) Notwithstanding Subsection (a), for the 2006-2007 school year,
               a classroom teacher, full-time librarian, full-time counselor ... , or
               full-time school nurse is entitled to a monthly salary that is at least
               equal to the sum of:

                      (1) the monthly salary the employee would have received for
               the 2006-2007 school year under the district's salary schedule for the
               2005-2006 school year, if that schedule had been in effect for the
               2006-2007 school year, including any local supplement and any
               money representing a career ladder supplement the employee would
               have received in the 2006-2007 school year; and

                       (2) $250.

Act of May 12,2006, 79th Leg., 3d C.S., ch. 5, § 4.05, 2006 Tex. Sess. Law Servo 45, 81 (expiring
September 1, 2007). Subsection (c-l) afforded the specified personnel a monthly $250 salary
increase. See ide By providing that the specified personnel who remain employed with the same
school district are entitled to a salary "at least equal to the salary the employee received [for the
school year that included the monthly $250 increase]," subsection (d) arguably perpetuates, at least
in some instances, the additional salary amount from subsection (c-1). TEX. EDUC. CODE ANN.
§ 21.402(d) (Vernon Supp. 2007); see also Request Letter, supra note 1, at 4 (stating interpretation
suggested by some school districts). We must determine whether the part of the calculation under
section 825.405, Government Code, involving the "salary provided by Section 21.402" includes the
salary increase specified by section 21.402(c-1) and presumably continued by section 21.402(d).
Mr. Robert Scott - Page 4                     (GA-0641) .




        In construing Government Code section 825.405 and Education Code section 21.402, our
primary objective is to ascertain the Legislature's intent. See In re Estate ofNash, 220 S.W.3d 914,
917 (Tex. 2007). That intent is best determined by the plain meaning of the words used in the
statute. See McIntyre v. Ramirez, 109 S.W.3d 741,745 (Tex. 2003). If the statute is clear and
unambiguous, we must give effect to the statute according to its terms. See ide On the other hand,
when the language is ambiguous or a construction would lead to absurd results, we may consider
other extrinsic aids. See id.; see also TEX. GOV'T CODE ANN. § 311.023 (Vernon 2005).

        The language of section 825.405, Government Code, and section 21.402, Education Code,
expressly refers to the "minimum salary." Section 825.405(a) lists certain positions for whom the
employing school district must pay a portion ofthe state's TRS contribution. See TEX. GOV'T CODE
ANN. § 825.405(a) (Vernon 2004). Those individuals employed in one of the listed positions are
"entitled to the minimum salary." Id. The school district's contribution is based on the "portion of
the member's salary that exceeds the statutory minimum." Id. The "statutory minimum salary" is
defined, in part, as the "salary provided by Section 21.402." Id § 825.405(b). Using similar
"minimum salary" language, Education Code, section 21.402(a) supplies the formula by which the
minimum monthly salary is determined for the specified personnel. See TEX. EDUC. CODE ANN.
§ 21.402(a) (Vernon Supp. 2007) ("[A] school district must pay ... not less than the minimum
monthly salary, based on [specified factors], determined by the following formula ...."). By
contrast, expired section 21.402(c-1) does not expressly provide for a "minimum salary." See Act
of May 12, 2006, 79th Leg., 3d C.S., ch. 5, § 4.05, 2006 Tex. Sess. Law Servo 45, 81. Nor does
section 21.402(d). See TEX. EDUC. CODE ANN. § 21.402(d) (Vernon Supp. 2007). The similarity
in language in section 825.405, Government Code, and section 21.402(a), Education Code, indicates
that the minimum salary in section 825.405 refers to the amount exclusively established by section
21.402(a).

        Additionally, the formula supplied by section 21.402(a) supports our observation regarding
the textual relationship between section 825.405 and section 21.402(a). The statutory minimum
salary provided by section 21.402(a) is defined by a numerical formula: MS=SF x FS. See ide
§ 21.402(a). The "MS" or "minimum monthly salary" in section 21.402(a) is the product of the
value of "SF" times "FS." Id. The value of "SF" is the "applicable salary factor specified by
Subsection (c)." Id. By its terms, the value of"SF" does not expressly include subsection (c-1). See
ide (providing for the "applicable salary factor specified by Subsection (c)"). Nor can the reference
to subsection (c) to the value of "SF" be construed broadly to encompass other subsections. The
value of "SF" calls for the "salary factor." Id. And subsection (c) provides the "salary factors per
step." See ide § 21.402(c). Subsection (c) is a table of multiplying factors for steps of years of
experience. See ide In contrast, subsection (c-1) provided for an amount, not a multiplying "factor."
See Act of May 12, 2006, 79th Leg., 3d C.S., ch. 5, § 4.05, 2006 Tex. Sess. Law Servo 45, 81
(expired September 1,2007). Finally, subsection (c-1) is an independent subsection and not a further
subdivision of subsection (c). See ide By the plain language ofthe section 21.402(a) formula for the
minimum monthly salary, the part ofthe formula represented by the value for "SF" does not include
the salary increase from section 21.402(c-1).

       Similarly, the other part of t4e section 21.402(a) formula-the "FS"-does not include
section 21.402(c-1). The value for "FS" is defined as the "amount, as determined by the
Mr. Robert Scott - Page 5                            (GA-0641)



commissioner under Subsection (b), of state and local funds per weighted student, [as further
specified by various references to sections in chapter 42, Education Code]." TEX. EDUC. CODE ANN.
§ 21.402(a) (Vernon Supp. 2007). Like the value for "SF," the definition ofthe value for "FS" does
not expressly refer to or include amounts from subsection (c-1). See ide Instead it is defined as an
amount ofmoney derived through calculations under the Foundation School Program under chapter
42. 3 See ide

        Moreover, the language of section 21.402(c-1) itself suggests that its salary increase is not
included in section 21.402's calculation of the minimum salary for the purpose of section 825.405.
Section 21.402(c-1) provided that the specified personnel's monthly salary is the sum ofthat amount
to which an employee would be entitled under the "district's salary schedule" and $250. Act ofMay
12,2006, 79th Leg., 3d C.S., ch. 5,§ 4.05, 2006 Tex. Sess. Law Servo 45, 81 (section (c-1) expired
September 1, 2007). The "district's salary schedule" is different from the "statutory minimum
salary" referred to in section 825.405 and the "minimum monthly salary" in section 21.402(a).
Additionally, section 21.402(c-1) contains the limitation: "Notwithstanding Subsection (a), for the
2006-2007 school year." Id. The term "notwithstanding" in common usage means "without
obstruction from" or "in spite of." See State V. Pub. Uti!. Comm 'n, 110 S.W.3d 580, 586 (Tex.
App.-Austin 2003, no pet.) (defining "notwithstanding" to mean "despite" or "in spite of'); see
also Tex. Att'y Gen. Ope No. GA-0099 (2003) at 5 (citing Williamson V. Schmid, 229 S.E.2d 400,
402 (Ga. 1976) and King V. Sununu, 490 A.2d 796, 800 (N.H. 1985)). Thus, subsection (c-1)
operates "without obstruction from" or "in spite of' subsection (a). In essence, subsection (c-1)
provides the salary increase to the specified personnel for the 2006-2007 school year despite the
monthly minimum salary established by the formula in subsection (a). And 'by expressly providing
that subsection (c-1) prevails over subsection (a), the Legislature anticipated that the two provisions
may conflict with each other. Because subsection (c-1) conflicts with subsection (a), it logically
cannot be included within subsection (a).

        The language ofsection 21.402(a) establishes the formula for the "minimum monthly salary"
and makes no provision for including in that salary calculation the increase from section 21.402(c-1).
We, therefore, need not utilize extrinsic methods to further construe section 21.402. See City of
Rockwall V. Hughes, 246 S.W.3d 621, 626 (Tex. 2008) (stating that it is inappropriate to resort to
extrinsic aids when the language ofthe statute is clear). However, even with unambiguous statutory
language, a court is authorized by section 311.023, Government Code, to consider other factors such
as the object to be obtained, the circumstances under which the statute was enacted, and the
legislative history. TEX. Gov'T CODE ANN. § 311.023(1 )-(3) (Vernon 2005). But see Reddy Ice
Corp. v. Travelers Lloyds Ins. Co., 145 S.W.3d 337,341 (Tex. App.-Houston [14th Dist.] 2004,
pet. denied) (stating legal principle that "if a statute is unambiguous, ... rules of construction or
other extrinsic aids" cannot be used to create ambiguity). The Fiscal Note accompanying House
Bill 1 that enacted section 21.402(c-1) does discuss the impact of the proposed salary increase.


         3The Foundation School Program is part of the system for the collection and distribution of funds for public
education. Chapter 41, Education Code, concerns the equalized wealth level of school districts. See generally TEX.
EDUC. CODE ANN. §§ 41.001-.257 (Vernon 2006 & Supp. 2007). Chapter 42 concerns the distribution of education
funds to the school districts. See generally id. §§ 42.001-.4101.
Mr. Robert Scott - Page 6                      (GA-0641)



See Fiscal Note, Tex. H.B. 1, 79th Leg., 3d C.S. (2006). The Fiscal Note states that "[a]t the current
state contribution rate of 6 percent, the estimated cost of increased state contributions to TRS
associated with the proposed salary increase would range from $41 million in general revenue in
fiscal year 2007 to $44 million in fiscal year 2011." Id. at 7 (emphasis added). The Fiscal Note,
however, does not help us construe section 21.402. It merely notes that the increase in salary and
the resultant increase in the "state contribution" will yield increased funding to TRS. Id. It does not
allocate responsibility for the payment ofthe increased "state contribution." Under section 825.405,
payment of a portion of the "state's contribution" is shared by the employing school districts. See
TEX. GOV'T CODE ANN. § 825.405(a) (Vernon 2004) (providing that the "employing district shall
pay the state's contribution" on a portion ofthe member's salary). Because the Fiscal Note does not
address the impact the salary increase will have on the two parties responsible for the "state's
contribution," it does not alter our construction based on the plain language of section 21.402.

        For the reasons stated above, we conclude that the proper construction ofthe salary provided
by section 21.402 as used in section 825.405, Government Code, to calculate the required retirement
contributions does not include the salary increase established in section 21.402(c-1) and arguably
perpetuated in section 21.402(d).
Mr. Robert Scott - Page 7                   (GA-0641)



                                     SUMMARY

                      The Seventy-ninth Legislature enacted legislation providing
              certain education personnel a salary increase. Section 825.405,
              Government Code, requires a school district to pay to the Teacher
              Retirement System a contribution for certain employees who receive
              more than the statutory minimum salary. The formula used to
              determine the statutory minimum salary includes the "salary provided
              by Section 21.402" of the Education Code. TEX. GOV'T CODE
              ANN. § 825.405(b) (Vernon 2004); TEX. EDUC. CODE ANN. § 21.402
              (Vernon Supp. 2007)~ The salary provided by section 21.402 does
              not include the salary increase originally established by section
              21.402(c-1) and arguably perpetuated by section 21.402(d).




KENT C. SULLIVAN
First Assistant Attorney General

ANDREW WEBER
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Charlotte M. Harper
Assistant Attorney General, Opinion Committee
