                         QBfficeof tfp Bttornep @eneral
                                     .&ate of Qexae
DAN MORALES                            October 10.1991
 ATTORh’
      GENERAL
        EY



     Honorable Emestine V. Glossbremrer           Opinion No. DM48
     chairman
     Public Education Committee                   Re: Whether school districts have the
     Texas House of Representatives               authority to pay school employees for
     P. 0. Box’2910                               accrued sick leave (RQ-147)
     Austin, Texas 78768-2910

     Dear Representative Glossbrenner:

             You have requested an opinion regarding the authority of school districts to
     pay their employees accrued sick leave. Specifically, you ask whether, in light of
      recent legislation, school districts that have adopted a policy to pay employees for
      accrued sick leave continue to have the authority to do so. You also ask whether
     school districts that have not yet adopted such a policy would be prohibited from
      adopting one in the future.

              Your query arises as a result of House Bill 2885, a measure that deals
     primarily with school finance, passed by the 72nd Legislature in June 1991. See Acts
      1991. 72d Leg., ch. 391, at 1475. Section 68 of House Bill 2885 amended section
      13.904 of the Education Code, which formerly required school districts to provide
     teachers with five days of sick leave per year. Prior to the amendment, section
      13.904(a) provided that “[a] state minimum sick leave program consisting of five
     days per year sick leave with no limit on accumulation. . . shall be provided for every
     teacher regularly employed in the public free schools of Texas.” (Emphasis added.)
     House Bill 2885 amended section 13.904 of the Education Code to extend the
     requirement that school districts provide five paid sick leave days to all school
     district employees: “A state minimum sick leave program consisting of five days per
     year sick leave with no limit on accumulation . . . shall be provided for every person
     regularly employed in the public free schools of Texas.” Acts 1991, 72d Leg., ch.
     391,s 68, at 1502 (emphasis added).

            In addition, section 69 of House Bill 2885 repealed section 21.919 of the
     Education Code, which authorized school districts to pay accrued sick leave to any



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non-teacher employee to whom the school district provided sick leave benefits:

             If a school district provides sick leave for an employee not
         covered under Section 13.984 of this code, the school district
         may pay the employee for accrued sick leave when the employee
         leaves the employment of the district.1

Apparently, some school districts contend that as the result of the repeal of section
21.919, they are no longer authorized to pay accrued sick leave to any of their
employees.      Clearly, however, House Bill 2885 repealed section 21.919 as
unnecessary surplusage since under the new law there are no employees who are not
covered under section 13.904. We conclude that House Bill 2885 does not affect
school districts’ authority to pay accrued sick leave to their employees.

        You also ask us to consider whether the Education Code otherwise
authorizes school districts to pay school employees for accrued sick leave. We
conclude that it does. The trustees of an independent school district have those
powers expressly conferred upon them by law or necessarily implied from express
powers. Harlingen Indep. School Dist. v. C. H. Page & Bra., 48 S.W.2d 983, 986
(Tex. Comm’n App. 1932, judgmn’t adopted); Attorney General Opinion JM-1000
(1988) at 4-5. Section 23.26(b) of the Education Code gives the trustees of a school
district the exclusive power to manage and govern the schools of the district.
Section 23.28 of the Education Code authorizes a board of trustees to employ
teachers and certain other personnel. Although sections 16.055 and 16.056 of the
Education Code set forth a minimum monthly salary base for teachers and certain
other personnel, the board of trustees of an independent school district has the
discretionary power to exceed this minimum. See Educ. Code 5 16.057(b); Attorney
General Opinion M-493 (1967) (construing predecessor statute). Clearly, the
Education Code authorizes a board of trustees to hire employees and to set the
terms and conditions of their employment, including their benefits and
compensation. We believe these provisions confer upon boards of trustees the
implied power to adopt policies allowing payment for unused sick leave. Cj:
Attorney General Opinion H-797 (1976) (holding that commissioners court had
implied statutory authority to pay accrued sick leave).


       ‘Se&n   21.919 was enackd in 1981. See Acts 1981,6lth Leg, ch. l98,? 2, at 3051.




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        In addition, section 20.48(c) of the Education Code authorizes school
districts to expend local school funds from district taxes for several specific,
enumerated purposes and “for other purposes necessary in the conduct of the public
schools to be determined by the board of trustees.* This section gives trustees of a
school district broad discretion to expend local school funds. See Attorney General
Opinions JM-490 (1986) at 2; H-133 (1973) at 4 (both holding that the
determination of whether expenditure is necessary under section 20.48(c) is a matter
for the discretion of school boards). In our opinion, section 20.48(c) authorizes
boards of trustees to expend school funds to pay employees accrued sick leave if
they determine that such a policy is necessary to the conduct of the school district.
In sum, we conclude that school districts were authorized to adopt policies allowing
payment for unused sick leave in the past,3 and continue to have such authority
following the passage of House Bill 2885.4


                                         SUMMARY
                School districts have the implied authority under sections
           20.48(c), 2326(b), and 23.28 of the Education Code to adopt
           policies to pay their employees for accrued sick leave, and
           continue to have such authority following the repeal of section
           21,919 of the Education Code.




                                                           DAN’ MORALES
                                                           Attorney General of Texas

       Qle state diseootioued provi~      fuods for sick leave iii 1984. Therefore, any payment for
aeaued side leave after 1984 would be made from IocaIschool funds.

        3ApparcntIy, prior to the adoptioo of House Bii 2885, many school districts adopted poIicies
prwiding accrued sick leave to their employees covered by section 13.904, even in the absence of the
@kit statutory authority such as that provided for payment of accrued sick leave to non-covered
employees in &ion 21.919.

         ‘Of course, a school district’s authority to provide additional compensation to its employees
retroactively continuesto be limitedby articleIII, section53,   of the Texas Constitution.See Wordv.
City sf San Antonio, 560 S.W.‘Zd163, 166 (lb. Civ. App.--San Antonio 19?7, wit refd n.r.e.);
Attorney General Opinion MW-68 (1979).



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Honorable Emestine V. Glossbrenner - Page 4   (DM-48)




WILL. PRYOR
First Assistant Attorney General

MARY KELLER
Executive Assistant Attorney General

JUDGE ZOLLJE STEAKL.EY (Ret.)
Special Assistant Attorney General

RENEA HIcK!s
Special Assistant Attorney General

MADELEINE B. JOHNSON
Chair, Opinion Committee

Prepared by Mary R. Crouter
Assistant Attorney General




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