                            QlXficeof the 9Utornep Qknerat
                                         &ate of Qexae;
DAN MORALES
 *TroRSLY
        CENLRAL                           September 23, 1996

      The Honorable Barry Telford                       OpinionNo. DM-4 17
      Chair
      Committee on Pensions & Investments               Re: Whether Government Code section
      Texas House of Representatives                    822.201(c) constitutionally excludes f+om
      P.O. Box 2910                                     salary and wages, for purposes of de-
      Austin, Texas 78768-2910                          termining member contributions to and
                                                        computation of benefits from the Teacher
                                                        Retirement System, “payments receiv-
                                                        ed . . . for teaching a driver education and
                                                        traffic safety course” @Q-859)

      Dear Representative Telford:

              In 1995 the legislature amended Government Code section 822.201(c) to exclude
      from a teacher’s salary, for purposes of calculating contriiutions to and benefits from the
      Teacher Retirement System, payments the teacher received for teaching a driver education
      and traflic safety course. You question the constitutionality of this amendment. Altho~gb
      you do not explicitly ask us to construe the amendment, we conclude it excludes only
      payments a teacher receives as a supplement to his or her .regtdar sahuy, probably in
      accordance with a contract supplementalto the teacher’s regular contract. With respect
      to your constitutional question, we conclude that a court would apply the rational.basis
      test to analyxe whether the amendment violates the fourteenth amendment to the United
      States Constitution by distinguishing after-school driver education teachers Tom other
      teachers who receive supplementalpay for extra-curricular activities they perform. We do
      not ultimately resolve the question you raise, however, because the rational basis analysis
      requires the resolution of fact questions.

              We begin by examining relevant provisions of title 8 of the Govermnent Code,
      subtitle C, of which section 822.201-&e section about which you ask-is a part. Title 8,
      subtitle C establishes the Teacher Retirement System of Texas, see Gov’t Code 0 821.003;
      see also Tex. Const. art. XVI, 8 67@)(1), and provides that every employee of the public
      school system shall be a member, Gov’t Code 3 822.001(a)(2), (b). In certain
      circumstances not relevant here, an employee may be excepted from the membership
      requirementr Id. § 822.002(a).

              ‘AIIcmployecis exceptedfromthe rnantc&p rcqntrancntif the unployechas execatedand
      filed a tmivcr,participatesin aa optionalmtircmcntprogram,or is employedby a publicirnlitntionOT
      highercdwationthatas a conditionof employment   requimsthe ernpleyecto be cnmlledas a studentat
      the institution;or if the cmployec’ssole aaploymentis as a nonccrtifiaiinstmctorin a thaology
TbcHonorableBarryTdford       - Page 2   (D&417)




       Section 822.201(a) of the Govemmcnt Code provides in general that only a
member’s salary and wages for service are subject to report and deduction for member
contributions. Likewiiq only a member? salary and wages arc credited in beneiit
computati~ns.~ Gov’t Code $822.201(a)(l). The statute defines the phrase “salary and
wages- as:
              (1) normal periodic payments of money for service the right to
          which accrues on a regular basis in proportion to the service
          pSlfOllllC4

               (2)amountsbywhichthemembe3ssalaryisreducedundera
          salary reduction agreanaa authorized by [Government Code section
          610.021];’and
              (3) amounts that would otherwise quaI@ as salary and wages
          under Subdivision (1) but are not received directly by the member
          pursuant to a good faith, voluntary written salary reduction
          agreement in order to hance payments to a dehrred compensation
          or tax sheltered fmmity program. . . or to 6nancc ban&t options
          Utld~aUtfbt~plan....
Id. 8 822.201(b) (footnote added).

       Thestatuteexpredyexchhsf?omsalaryandwages
          acpensepayments,aUo~paymentsforuausc&vacationorsick
          leave. maiotenance or .other nonmonetary wmpmsatids itinge
          bene&s, deferred compensation other than as provided by Subsection
          B)(3), compensation that is not made pursuaat to a valid
          employment agreemu& pnymem recekd in lhe 19954996 or a
          subsequent schooI par for teading a driwr e&cation and bajic
          safe@ course, and any co-on        not dcs@bcd in Subsection (b).




                                         P.   2309
The Honorable Barry Telford - Page 3      (~164 17 )




Id. 0 822.201(c) (emphasis added). The Seventy-fourth Legislature amended section
822.201(c) by adding the italicized language. See Act of May 27. lS95,74th Leg., RS.,
ch 260.6 35.1995 Tex. Sess. Law Serv. 2207,2487.

       The conference committee on the bii Senate Bii 1, added the MlQLdmQltto
section 822.201(c). No comments wae made on the floor of the House or Senate or in
any written materials regarding the amendment. We arc. as a consequence, uncertain as to
the problem the legislature was seeking to remedy by the amendment4

       Although you do not spec%cally ask us to construe the amendment, we believe it
is a necemry preface to considering the constitutionality of the amendment. We
hypothesize that a public school may employ ditkre-nt types of driver training teachers.5
The first type teaches driver education during the regular school day. and the teacher’s
regular salary compensate-shim or her for teaching driver training, possibly among othex




               sucbtaminal~avaagoformaksmaybearbjeEttomrnipulntioaiftbc
          empl~isabletobavca~~~~paidas~
          ealaryforarclatMybricfpuiadimmahMy       renmwnt TRslawsalul
          NleShavcECOgkdtbiSpdOtOlUtbCpSlUldhvciWbUiCd~tO
          minimize arh dp0kti00.    TEX Gov'r CODE ANN. 0 S25.210; 34 Ikx.
          ADMIN. CODE0 25.~.31.




                                          P.   2310
The Honorable Barry Telford - Page 4        (DH-4 i 7 )




subjects or tasks. See Rduc. Code Q29.902 (requiring Texas Education Agency to
estfibliahprogram of instruction in driver education and traffic safety for public school
atudents); 19 T.AC. 88 75.121 (setting standards for driver education classroom and in-
car instruction), .312 (establishing requirements for teacher certitication in driver
education). The teacher does not receive a payment, supplemental to his or her annual
salary, for teaching driver train& but teaches driver training pursuant to his or her
wlitteq regular wntract with the school district.

       The second type receives a payment, supplemental to his or her annual salary, for
teaching driver training. Presumably, the second type of driver tmining teacher may teach
subjects other than driver training during the day, but teaches driver education after school
and during the summers. See infra note 6 (quoting from brief of Texas Classroom
Teachers’ Association). Generally, we imagine that a teacher who teaches driver
education in return for a supplemental payment does so pursuant to a supplemental
contract independent of the teacher’s regular contract with the school district.

        ThelegislaturedircctsthatmrypartofaDtatuteistobeeffectiw,ifthedatute
can be so wnstrued. Gov’t Code 5 311.021(2). A court must attempt to wnstrue a
atatute as a whole, harmonizingthe statute in its entirety. 67 TBX. JUR.3D &futes 4 125,
at 715-17 (1989). Acardingly, we cannot construe section 822.201(c) of the
Government Code in isolation; we also must consider other relevant sections of chapter
822, such as section 822.001(a).

        section 822.001(a) clearly mandates that member&p hi the. Teacher Retkment
System inch&s all employees of the public school ayatem (assuming the employee is not
excepted under section 822.002(a)). An employee who tea&a driver tmining is not
explicitly exchuled. Consequently, an employee of a school district who teaches driver
training~whosesalarvwmpensateshimorhaforteachingdrivaErainingrmrstbea
member of the Teacher Retirement System, amuming the teacher otkwiae qualities.
That teacher’s sahuy and wages, which compensate the teacher, at least hr part, for
teaching driver training, are sahuy and wages subject to report and deduction for member
wntriiutions and to credit in benefit computations.

       Nevertheless, we believe that the legislature intended to distinguish behveat salary
a teacher receives to compensate the teacher for teaching driver tmining duting the regular
~~lday,pursjuanttoaregularwntract,~omapaymentanothateacbareceives,in
addition to the teacher’s regular sahny, probably pumuant to a suppkmental wntract
hrdependent ofthe regular wntract. The latter teacher remainsamemberoftheTeacher
Retirement Syst~ with the teacher% wntriiutions and be&Its premkd upon his or her
regular salary. Payments the teacher receives, over and above his or her annual salary, for
teaching driver training may not be used to wntriiute to and wmpute be&Its ffom the
Teacher Retirement System, however.




                                            P.   2311
TheHonorableBarryTelford - Page 5           (DM-417)




         By wnstndng the phrase “payments received. . . for teaching a driver education
and traflic safety wurd’ in section 822.201(c) to apply only to payments received in
addition to regular salary, we believe it descrii an exclusion f?om salary and wages that
is similar to the other items section 822.201(c) explicitly excludes G-amsalary and wages.
For example, expense payments, allowances, and tiinge benefits all are payments a school
district employee receives in addition to his or her regular salary. Conversely, if we
wnstrued section 822.201(c) to exclude from salary and wages even payments a teacher
receives as part of the teacher’s regular salary and under the regular wntract, the phrase
-payments received.. . for teaching a driver education and traftic safq course” would
describe an exclusion much di&rent from the other items expressly excluded 6om salary
and wages.

        Additionally, tbis conclusion is wnsistent with the legislature’s choice of language
in the 1995 amendment. In particular, we note tbat the legislature described the
wmpensation received for teaching driver trainhtg as a “payment.” Some of the other
paymenta mferred to in section 822.201(c) are described as “wmpemation” The term
“wmpemation” encompasses salary and beneSts. See Attorney General Opiion Jh4-39
(1983) at 3; Letter Opiion No. 94-72 (1994) at 2. In our opinion, the legislature has
distinguishedbetween the salary a teacher receives for, in whole or in part, teaching driver
~Mdapaymentateachareceives,inadditiontohisorhasalary.forteachiag
driver training. See also 37 T.AC. 5 25.21 (excluding various supplemental payments
from annual wmpensation for purposes of Teacher Retirement System).

        Having wnstnted the 1995 amendment to section 822.201(c) of the Governmatt
Code, we turn to your question regard& the wnstitutionality of the amauknt.         You
specifIcally question whether the amendment violates the Fourteenth Amendment of the
United States Constitution “or any other provision of the federal or state constitution.”
BecauseyoustatethattheamendmentappearstodkrimWe”inteacherrememen
system benefits because of course wntent,” we understand your Fourteenth Am&
wncun to be directed to the Equal Protection Clause.

       In Attorney General opinion JM-401 (1985), this office dkmssed the proper
standad to be used when wnsidering whether a particular statute complies with the Equal
Protection Clause of the Fourteenth Amendmentto the United States Consthution:
               In reviewing legislation under the equal protection clause of the
          F~utecd~     Amendment,    the United States Supreme Court usuahy
          hasusedtwoprimarystanda&.            Ifachallengedlawburdensan
          itthexently%uspect”class of pasons or impinges on 8 %ndamenW
          ~mtitutional    right, the law will be struck down unless the atate
          demonstratestbatthelawisjusti6edbyawmpelhngneed.                   If8
          mspea class or tbmIamental right is not involved, the law will be
          upheld tmless the challenger can show that the chdkation beara no
          donal relationship to a legitimate state purpose or objective. . . . On



                                            P.   2312
The Honorable Bany Telford - Page 6                   (DM-4 17 )




                8few0ccasio~thecourtakohasutilidanhtemdatetestwhich
                asks whether the challenged law furthers a substantial interest of the
                state.

Id. it 3-4 (citations omitted).

        A teacher who receives payments, ovu and above the tea&x’s aala~~, for
teading driver training is not a member of a suspect class.6 See Regents of he Univ. v.
BaMe, 438 U.S. 265. 306 (1978) (race and ethnic origin). Such a teacher also is not a
member of a ckssification warranting an intermediate level of scrutiny. See L&i v. La&
439 U.S. 259, 265 (1978) (iieghimaq); Craig v. Buren, 429 U.S. 190, 197 (1976)
(gender). In addition, assuming the contribution to and receipt of be&its from a
retirement system is a “right” at all, the inclusion of a payment for teaching driver tmining
classes in the calculation of such wntriiutions and benefits is not a Wental            right.
See, e.g., Johnson v. Jtobison, 415 U.S. 361, 375 1~14(1974) (free exercise of religion);
Sqviro v. Thompson, 394 U.S. 618, 630 (1969) (mterstate travel); Griswold v.




       lllparwkr,tlwTcrAcamendstluttk
             . .                         amadnmtto~S22.201(c)dlfrcoa~ef
       DiswmWiy ” +@oyyrd Act (the“MEA”), 29 U.S.C.ch 14. llw ADEAprohibh an
t&ii& hn disamW~           F     any bdividd bccanscof tk ir&idd’s w    29 U.&C.
5623(aj(l). ‘l%isuuidiruiminahonmPndatcappliestothc~mmiadivisua~as~
astktcrms,cmditions,orpdv@caefemploymwt.                    Id.   l’lwADEAdoanot.bmmu,fotbidan
anpkyertodirtingu*hontbcbasisofagciftbcdktimkakwoa-                                         factomulAcrtbaaigc.
Id. # 623(f)(l).



dtbc emplcyo’sago. 29 U.S.C.0 623(i)(l)(A). In ddition, an anploymmaymt estdish QTmaintab
a~conhibutionplantbst-~~ti~tomcmploycc’s~orthat~tbcrw~
wbicb tbc pko alkca~csmosey to tbc omplopc’s aammt baxasc of age. Id. 0 623(i)(l)@). We will
assumcfolptrporcsefIhisopinionthatthc1995rmmdmrnrr       tn saotioaS22.2Ol(c)of tbc GovMuwm
cedeceasobalditaccmal,reducethraIoofbenditsmuPI.c6aseauocationstoan~r~
aroscetboraIoatwbicb amrmtsamalbatcd to an empkyee’rnxum~. See 29 U.S.C.0 623(i).
       WCIWdlllM!CdU~tOWbCtbWtbCCkSSitiWtlWOfafUakblgtWCbUSterbar
tkbaslsecage.    Morwver,iftbc 1995 anhdmnt tn accllon822.201(C)of Ibc clove-tz
 . . .
dismpdaamorlgtcacbusclntkrppprrntbasisofage,wcare-mtowbotbutbclegirlahrrr
iafaandotkrlistbdononanyrwsonablefadoro(hatluu~rge.          Srr29U.S.C.#623(f)(l);Ham
Paqm cb. v. Bigginr. 113 S. Cl. 1701. 1705(1993);qI McKennon
                                                           Y.NashvilleBannerpublishi~?Co.,
llJS.CLS79(1995). Tkrcsohtionofthescqllcstionstlunson~,thc~ontllusiricrappropMtc
to tk aplnionprocess. See, ea.. AtterwyGoaaal Opii     DM-337(1995)at 7, DM-98(1992)at 3,
H-56(1973)at 3.



                                                      P.   2313
TheHonorableBarryTelford - Page 7          @M-417)




Cannectimf, 381 U.S. 479,482 (l%S) (privacy);Reytmkh v. Sims, 377 U.S. 533.56162
(1964) (s&age); Gr@in v. Ihois, 351 U.S. 12. 17 (1956) (access to courts). See
genera& San Antonio In&p. Sch. Dist. v. Rdiguez, 411 U.S. 1, 33 (1973)
(determination of whether something is fundamental right Tes in asEsee@ whethe?
Constitution explicitly or implicitlyguarantees it). Accordingly, a court would apply the
rational basis test to determhx whether the amendment to section 822.201(c) is
wnstiMional.

        Under that test, a court would uphold the amendment unless a challenger to the
statute shows that the classi6cation bears no rational relationship to a legitimate state
purpose or objective. We have been unable to ascerkn the legi&tive purpose for this
amendment. We are krtha unable to determine why the legislature chose to dL&guish
between a teacher who receive-sa payment, in addition to his or her regular salary, for
teaching driva training and a teacher who may receive a supplementalpayment for other,
nonsalaried, school-relatal work he or she performs, for example, coachin& sponsoring a
dub, driving a bus, or dire&g the school play.

       In any event, wbther there is a legitimate state purpose or objective for exchrding
a payment received outside of a teacher’s regulsr salary for tea&ing driver tmining classes
~mtbesalaryusedtocatculateamrmba’scontn’butionstoandbenefitsfiromthe
Teacher Retirement System, as the amendment to section 822.201(c) does, while not
exchnIing similar payments a teacher receives for performing otha extra-curricular
Gnctions, ‘is a fact question that is inappropriate to the opinion process. See, eg.,
Attorney General Opiions DM-337 (1995) at 7, DM-98 (1992) at 3, H-56 (1973) at 3.
Ur~whahatheMlendmentreasonablyrelatestothatpurposeis8factquestionthat
cannot he resolved in the opinion process.




                                           P.   2314
ThcHonorableBanyTelford    - Page 8    (DM-417)




                              SUMMARY
             Section 822.201(c) of the Govemment codei wfrich, =ng
        otha things, excJudes from wmpensation that may be used to
        wntriiute ~to and calculate ben&ts fkom the Tea&a Rctiremeau
        system “payments received . . . for teaching 8 driva education and
        tic    safbty course,” applies only to payments a driver training
        tcacha receives for teaching driver tmining in addition to the
        teacha’s regular ‘salary, pahaps pumuant to a supplemental,
        independent contract.

            Whether there is a legitimate state purpose for excluding a
        payment received outside of a teacha’s regular salary for teaching
        drivertrainingclasses~omthesalaryustdtocal~eamemba’s
        contributions to and bendits 6om the Tcacha Retirement System, as
        the amendment to section 822.201(c) does, while not excluding
        similar payments a tcacha receives for paforming other extra-
        wrrkula functions, is a fact question. Likewise, whetha section
        822.201(c) actually relates to that purpose is a fkct question.




                                               DAN MORALES
                                               Attorney General of Texas

JORGE VEGA
Fti As&ant Attorney General




                                       p. 2315
