Honorable Ernestine V. Glossbrenner    Opinion No.   JM-1051
Chairman
public Education Committee             Re: A school district's
Texas House of Representatives         use of local funds for
P. 0. Box 2910                         career ladder payments
Capitol Building, Room 302D            (RQ-1687)
Austin, Texas 78768-2910

Dear Ms. Glossbrenner:

     You ask:

           If the state allotment designated       for
        support of the career ladder (Section 16.158,
        Education  Code) will not fully fund the
        career ladder supplements,    can a     school
        district use monies generated     locally to
        allow the school     district to meet      the
        payments for career ladder levels 2, 3~, and 4
        of $2,000, ~$4,000, and ,$6,000 respectively
        (Section 16.057, Education    Code), without
        implementing stricter local performance   cri-
        teria?

     Chapter 13, subchapter   E, of the Education Code pro-
vides for the assignment of each public school teacher to
one of four career ladder levels based on performance,
experience,   job-related   education,    advanced   academic
training and job assignments.    Section 16.057 provides  for
the supplementing of salaries of teachers at career ladder
levels two through four as follows:

           (a) Except as provided by Subsection    (c)
        of this section, each teacher on level two,
        three, or four of a career ladder is entitled
        to the     following annual   supplement    in
        addition to the minimum salary set by this
        subchapter:

                Level 2 . . . . . . . . . . $2,000
                Level 3 . . . . . . . . . . $4,000
Honorable Ernestine V. Glossbrenner       - Page 2    (JM-1051)




              Level 4 . . . . . . . . . . $6,000

           (b) If the district pays more than the
        state minimum   salary prescribed   by   this
        subchapter, the teacher is entitled to the
        career ladder supplements in addition to the
        amount otherwise paid by the district for the
        teacher's step.

           (cl If the allotment under Section 16.158
        of this code that is designated for support
        of the career ladder will not fully fund the
        supplements under this section:

                 (1) the district         may reduce      the
           supplements   to  not          less  than      the
           following:

                 Level 2 . . . . . . . . . . $1,500
                 Level 3 . . . . . . . . . . $3,000
                 Level 4 . . . . . . . . . . $4,500

           or;

                 (2) provide for stricter performance
           criteria than that provided under Section
           13.302 of this code, subject to        the
           approval of,the State Board of Education:
           or

                (3) take action under both Subdivi-
           sions (1) and (2) of this subsection.

     Section 16.158 provides  for q'allotments" to fund           the
career ladder supplements as follows:

           (a) Each district is entitled to an al-
        lotment for education improvement and support
        of the career ladder equal to its unadjusted
        average daily attendance multiplied   by the
        following amount or a greater amount provided
        by appropriation:

                   (1)   $100 for   the   1984-1985    school
           year:

                (2) $120 for        the   1985-1986    school
           year: and




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                (3) $140 for the 1986-1987      school
           year and each school year thereafter.

           (b) A district may expend 25 percent   of
       the allotment  for any legal purpose,   shall
       expend 25 percent of the allotment        for
       payment of salaries for personnel other than
       classroom  teachers,  and shall expend     50
       percent of the allotment   for career ladder
       salary supplements.

           (b-l)   Expired.

           (c) From the funds designated   for that
       purpose, the, ,district shall supplement  the
       salary of each teacher above level one on the
       career ladder. The district shall decide the
       amount of supplement to be provided at each
       career ladder level.

           (d) Money received under this section may
        not be used to supplement the salary of an
        employee for directing cocurricular or extra-
        curricular activities.

     The funding of the career ladder supplements is a part
of the Foundation School Program established under chapter
16 of the Education Code.    The purpose of the Foundation
School Program is to "guarantee that each school district in
the state has 'adequate resources to provide each eligible
student a basic instructional     program suitable   to his
educational needs."   Educ. Code 5 16.002. Section    16.051
provides that in order to receive financial support from the
Foundation School Fund, school districts must comply with
the standards   set out in subchapter     B of chapter    16
including the provisions  of section 16.057, quoted above,
providing for career ladder supplements.

     In your question;  in which you ask about courses of
action available to a school district where the "state
allotment designated   for support of the career     ladder
(Section 16.158, Education Code) will not fully fund the
career ladder supplements,"    we presume that by "state
allotment" you mean the 50% of the "allotment for education
improvement  and support of the career ladder,"       which




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Honorable Ernestine V. Glossbrenner - Page 4    (JM-1051)




subsection (b) of section 16.158 provides shall be    expended
for career ladder supplements.1

     Section 16.057(a) sets out specific dollar amounts to
which teachers at career ladder levels two, three, and four
are entitled.    We understand you to ask whether    section
16.057(c), quoted above, provides the exclusive alternatives
available to a district when the section 16.158 allotment
is insufficient to pay the supplements or whether a district
may use other available funds to pay the salary supplements.
We do not think that subsection (c) was intended to prohibit
a district    from paying the supplements    out of    other
available funds.

     Subsection (a) states that teachers are entitled        to
specific supplement  amounts except in the instance of an
insufficient  allotment.    Subsection   (c)   provides     for
reduced supplement  amounts and for stricter performance
criteria for supplement eligibility.    We read the reference
to the insufficiency of the allotment as a prerequisite      to
the availability of the alternatives set out in subsection
Cc)- In other words, we think that the express meaning       of
subsections (a) and    (c) is that a district       is without
authority, other than as provided      in subsection   (c), to
lower the amount of the supplements or to raise the criteria
for receiving the supplements.   We do not find any language
in these provisions     that prohibits    the use of      other
available funds to pay the supplement.

     'Several factors    support our     reading of    section
16.057(c).   First, nothing  else in the controlling  statutes
suggests that a district may not use available money other
than allotment money to pay the supplements.     Substantially
all of the controlling provisions were enacted as part of
House Bill 72. Acts 1984, 67th Leg., 2d C.S., ch. 28, at
117. The provisions    of subsection (c) of section    16.057,
which are in question here, were added to the language       of
that bill only after it already contained substantially     all
of the other provisions     discussed. See Bill file, House




     1. See Educ. Code 55 16.251, 16.252, 16.254; see also
Acts 1987, 70th Leg., 2d C.S., ch. 78, art. III, 5 1, at
632.




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Bill 72, 67th Leg., 2d C.S. (1984).2 If the addition   of
subsection (c) were  intended to limit the use of other
funds, we think the legislature would have expressed that
intent.

     Moreover, we think that construing   subsection (c) to
reouire districts, whose allotments are insufficient to meet
the subsection (a) supplements, to either lower the supple-
ment, raise performance criteria,  or both, without  leaving
them the option of making up the subsection (a) supplement
amounts with non-allotment monies, would be contrary both to
the purpose of the career ladder program, which       is~ to
improve teaching quality by providing monetary incentives to
more qualified and better performing teachers,   and to the
overall spirit of House Bill 72.

     You do not ask and we do not address     in detail what
kinds of "monies generated   locally" might be lawfully used
to help fund the district's career ladder supplements.    We
do note that section 16.253, for example, provides in part
that "local maintenance    funds in excess of the amount
assigned to a district may be expended for any lawful school
purpose.1' See also Educ. Code 5 20.48.

     A brief 'submitted by the Texas Education Agency3     in
response to your request notes that an administrative    rule
adopted~ by the agency, 19 T.A.C. 5 149.71(l)(4), would limit
the use of other available funds for the section       16.057
supplements.

           In the event that funds designated as the
        allotment for career ladder salary supple-
        ments are deemed  insufficient for placement



     2. Hence, the language in section 16.158(c) providing
in part that "the district shall decide the amount of
supplement to be provided   at each career ladder level,"
which language was in both the'original bill as introduced
and in the enacted version, must be read in light of the
later added supplement provisions of section 16.057.

     3. The Texas Education Agency is generally referred to
by statute as the Central Education Agency.   It includes,
inter alia, the State Board of Education and the State
Commissioner of Education. See, e.a., Educ. Code 5 11.01 &
u.




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        and/or maintenance  of all teachers meeting
        the state-mandated    minimum criteria    for
        selection and/or maintenance  on the teacher
        career ladder, the local district may fund
        additional career ladder salary supplements
        from local or other funds permitted by law
        and State Board of Education rules effective
        with the 1985-1986 school year, provided that
        the following requirements have been met:

               (A) that funds available for any legal
           purpose  in accordance with the      Texas
           Education Code, 516.158, have been   fully
           exhausted in the payment of teacher career
           ladder salary supplements; and

               (B) that the local school district
           demonstrates its intent to utilize  career
           ladder supplements as a means of identi-
           fying and rewarding excellence in teacher
           performance  as   opposed to    a   salary
           supplement for all teachers meeting    the
           minimum requirements  by establishing   in
           written policy one or more requirements
           for stricter performance as specified   in
           subsection (e) of this section.

     Subpart (B) of the provision appears to require that
before local funding may be used to make up a deficiency   in
the section 16.158 allotment   for the career ladder supple-
ments, a district must establish one 'or more requirements
for stricter performance     criteria.   See also 19 T.A.C.
5 149.71(e). We think that to the extent that the Texas
Education Agency's'rule makes mandatory the establishment of
stricter performance criteria before local funds can be used
to make up a shortfall  in the section 16.158 allotment   for
the section 16.057, subsection (a), career ladder supple-
ments, the rule exceeds the agency's rule-making authority.

     Agency rules must be within the clear intent of the
statute and not in excess of the powers delegated.       See.
e.s., Kellv v. Industrial Accident Bd., 358 S.W:2d 874 (Tex.
Civ. App. - Austin  1962, writ ref'd).   We find nothing   in
the Education Code or elsewhere in state law which empowers
the Texas Education Agency, or its component body, the State
Board of Education, to require stricter performance criteria
in particular districts or particular local situations.   See
Educ. Code ch. 13, subch. D (providing for the establishment
of career ladder appraisal procedures      and   performance




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    Honorable Ernestine V. Glossbrenner - Page 7     (JM-1051)




    criteria by the State Board of Education),         55 13.302(a)
    (providing that the board shall adopt an appraisal       process
    and criteria, and the criteria must be based on "observable,
    job-related behavior, including teachers' implementation      of
    discipline management    procedures"),   13.302(c)    (providing
    that the board shall provide for *Iauniform training program
    and uniform certification standards     for appraisers    to be
    used throughout   the state"), 13.302(d)(l) (providing that
    "the assessment process may be administered by or under the
    supervision of the Central Education Agency on a statewide
    basis"), 13.304-13.312   (providing for uniform performance
    categories, classes of teaching certificates, criteria       for
    entrance into and maintenance     of career ladder levels,
    without making any distinctions    in such classifications    or
    criteria based on particular    local situations).      See also
    id. 55 11.24    (board's rule-making    authority   generally),
    16.005 (commissioner of education to administer      Foundation
    School Program in accordance with board rules).           Again,
    although section 16.057 provides that local districts        may
    with state board approval implement stricter performance
    criteria under the circumstances     set out there, we find
    nothing in the agency's statutory rule-making          authority
    empowering the agency to require particular       districts   to
    implement stricter performance criteria before it uses funds
    other than the section 16.058 allotment for salary supple-
    ments.

         Finally, we note that the Texas Administrative Code, 19
    T.A.C.  5 149.71(1)(4)(A),   requires that local districts
    wishing to use local funds to make up the cost of section
    16.057(a) career ladder supplements where the section 16.158
    allotment for such is insufficient must first exhaust the
    portion of the section 16.158 allotment funds available   for
    "any legal purpose.'* We find nothing     in the statutory
    scheme governing the career ladder program which authorizes
    the Texas Education Agency to thus restrict the use of local
    funds and accordingly     conclude that the provisions     of
    subpart (A) also exceed that agency's statutory   rule-making
    authority.

                            SUMMARY

               In order to meet the cost of career ladder
            supplements   in the amounts specified     in
            Education   Code section 16.057, subsection
            (a), a school district may, without    imple-
            menting stricter performance criteria under
            chapter 13 of the code, use available   local
            funds where the allotment    for the career




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Honorable Ernestine V. Glossbrenner - Page 8 (JM-1051)




        ladder under section 16.158 is insufficient.
        Rules adopted by the Texas Education Agency,
        19 T.A.C.  5 149.71(&)(4)(A)-(B),   purporting
        to require a school district whose section
        16.158 allotment   is insufficient    to first
        exhaust section   16.158 funds available    for
        "any legal purposetl and to establish stricter
        performance criteria before using other local
        funds to cover the supplement amounts, exceed
        that agency's   statutory rule-making   author-
        ity.




                                     JIM     MATTOX
                                     Attorney General of Texas

MARY KELLER
First Assistant Attorney General

LCU MCCREARY
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General

RICK GILPIN
Chairman, Opinion Committee

Prepared by William Walker
Assistant Attorney General




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