                              ATTORNEY GENERAL OF TEXAS
                                          GREG        ABBOTT



                                              January 27,2005




The Honorable Robert E. Talton                           Opinion No. GA-0300
Chair, House Committee on Urban Affairs
Texas House of Representatives                           Re: Whether payment for accumulated vacation
Post Office Box 2910                                     time, paid as salary under an employment
Austin, Texas 7871 l-2910                                contract, is creditable compensation for purposes
                                                         of determining Teacher Retirement System
                                                         benefits (RQ-0251-GA)

Dear Representative Talton:

       You ask whether payment for accumulated vacation time, paid as salary under an
employment contract, is creditable compensation for purposes of determining Teacher Retirement
System (“TRS”) benefits.’

         The Texas Constitution requires the legislature to “establish by law a Teacher Retirement
System of Texas to provide benefits for persons employed in the public schools, colleges, and
universities supported wholly or partly by the state.” TEX. CONST. art. XVI, 5 67(b)(l). TRS is
established and governed by Government Code, title 8, subtitle C. See TEX. GOV’T CODE ANN. tit.
8, subtit. C, chs. 821-30 (Vernon 2004). The TRS board of trustees is responsible for the system’s
general administration and may adopt rules for membership eligibility, funds administration, and
other matters. See id. $5 825.101-,102.

         A TRS member’s compensation level determines the level ofbenefits to which he or she will
be entitled. For example, the standard service retirement benefit annuity “is an amount computed
on the basis of the member’s average annual compensation for the three years of service, whether
or not consecutive, in which the member received the highest annual compensation, times 2.3
percent for each year of service credit in the retirement system.” Id. 3 824.203(a) (emphasis added).
As a result, payments that increase a member’s compensation during the member’s three years of
highest annual compensation may significantly increase the member’s benefits.

      Section 821.001(4) defines “annual compensation” for purposes of subtitle C to mean “the
compensation to a member ofthe retirement system for service during a school year that is reportable


         ‘See Letter from Honorable Robert E. T&on, Chair, House Committee on Urban Affairs, Texas House of
Representatives,to Honorable Greg Abbott, Texas Attorney General (July 29,2004) (on file with Opinion Committee,
also availableof http://www.oag.state.tx.us)[hereinafterRequest Letter].
The Honorable Robert E. Talton - Page 2                    (GA-0300)



and subject to contributions as provided by Section 822.201.” Id. 9 821.001(4). Section 822.201
governs what compensation may be credited in benefit computations, see id. § 822.201(a)
(“compensation subject to report and deduction for member contributions and to credit in benefit
computations is       “), establishing the compensation that you and TRS refer to as “creditable
compensation.“’

        Generally, section 822.201(a) defines as creditable compensation “a member’s salary
and wages for service.” Id. The phrase “salary and wages” is defined to mean “normal periodic
payments of money for service the right to which accrues on a regular basis in proportion to
the service performed,” id. 5 822.201(b)(l), and other amounts not relevant here, see id.
$822,201(b)(2)-(8). As you point out, section 822,201(c)(3) expressly disqualifies certain payments
as creditable compensation, including payments for accumulated vacation time: “Excluded from
salary and wages are . . payments for unused vacation or sick leave.” Id. 8 822.201(c)(3).

         A TRS rule, section 25.21(b), mirrors these provisions. The rule explains that

                  [s]ome payments made by an employer to a member are not salary or
                  wages, even though the payments may be otherwise considered as
                  compensation under the employment contract or federal tax laws. In
                  general salary and wages creditable and subject to deposit are those
                  types of monetary compensation which:

                         (1) are earned or accrue proportionally as the work is
                  performed, so that a member terminating employment between pay
                  periods is entitled to a proportional amount of the compensation
                  based on either length of employment or amount of work performed;

                          (2) are paid or payable at fixed intervals, generally at the end
                  of each pay period; and

                             (3) are not specifically excluded under subsection (d) of this
                  section.

34 TEX. ADMIN. CODE 5 25.21(b) (2004). Subsection (d)(3) of the rule specifically excludes from
annual compensation “payments for accrued sick leave or vacation, except that continued payments
of normal compensation when vacation or sick leave is actually taken by an employee will
be included in annual compensation to the extent otherwise permitted by this section.” Id.
$25.21(d)(3). The rule also states that, in determining creditable compensation, TRS may rely on
employer certifications or may conduct an investigation to assess whether ineligible compensation
has been reported. See id. § 25.21(f).



        %e Request Letter, sup-a note 1; Brief from Conni H. Brennan,GeneralCounsel, Teacher Retirement System
of Texas, to Nancy S. Fuller, Chair, Opinion Committee, Office of the Attorney Generalat 3, 1O-l1 (on file with Opinion
Committee) [hereinafter TRS Brief].
The Honorable Robert E. Talton - Page 3                  (GA-0300)




        Government Code section 822.201’s plain language resolves your question. Even if a
payment for accumulated vacation time is paid as salary under an employment contract, it is not
creditable compensation for purposes of determining TRS benefits. Payments for accumulated
vacation time earned in past years are not “normal periodic payments of moneyforservice the right
to which accrues on a regular basis in proportion to the serviceperformed,” TEX. GOV’T CODEANN.
5 822,2Ol(b)( 1) (Vernon 2004) (emphasis added), and thus do not constitute salary and wages under
section 822.201(a). Moreover, section 822.201(c)(3) expressly excludes payments for unused
vacation from salary and wages. See id. 5 822.201(c)(3). The parties’ agreement in an employment
contract that certain payments are creditable compensation for TRS purposes does not overcome
contrary state law. CJ Tex. Att’y Gen. Op. No. JM-672 (1987); Tex. Att’y Gen. ORD-514 (1988)
(a governmental body’s agreement with a private party to keep information confidential does not
overcome Public Information Act disclosure requirements).

       We gather that there has been some confusion regarding this issue arising from TRS’s repeal
in 2001 of an administrative rule that established a presumption regarding conversion of
noncreditable compensation to salary, former section 25.30. See 26 Tex. Reg. 6279 (2001), adopted
26 Tex. Reg. 8544 (2001) (repealing former 34 TEX. ADMIN.CODE 5 25.30).

         TRS adopted section 25.30 pursuant to section 825.110 of the Government Code, which in
pertinent part authorizes the TRS board of trustees to adopt rules “to exclude from annual
compensation all or part of salary and wages in the final years of a member’s employment that
reasonably can be presumed to have been derived from a conversion of fringe benefits, maintenance,
or other payments not includable in annual compensation to salary and wages.” TEX. GOV’T CODE
ANN. 9 825.110 (Vernon 2004). The rule provided that TRS would “exclude from annual
compensation any amounts converted into salary and wages from noncreditable compensation during
the last five creditable school years of employment before retirement.” 22 Tex. Reg. 6843 (1997)
adopted 22 Tex. Reg. 9256 (1997) (codified at 34 TEX. ADMIN.CODE 4 25.30(a) (repealed 2001)).
The rule established that “conversion ofnoncreditable compensation to creditable salary and wages
occurs when noncreditable compensation is reduced or eliminated and is replaced by creditable
salary and wages” and provided that “[a] conversion should normally be presumed when
noncreditable compensation provided to a member in a school year is not provided in the
immediately following school year and the member’s creditable salary and wages for the subsequent
year exceeds that of the previous year in which the noncreditable compensation was provided.”
19 Tex. Reg. 3565 (1994), adopted 19 Tex. Reg. 9183 (1994) (codified at 34 TEX. ADMIN. CODE
$25.30(d) (repealed 2001)). To overcome the presumption, a member had to submit documentary
evidence to TRS that “clearly and convincingly” proved that “the difference was not converted to
salary and wages.” Id. The rule required employers to certify the amount of noncreditable salary
that had been converted to sa1ary.r



         ‘See 19 Tex. Reg. 3565 (1994), adopted 19 Tex. Reg. 9183 (1994) (codified at 34 TEX.ADMIN.CODE5
25.30(c) (repealed 2001)) (“After a member applies for retirement, each employer of the member during any of the
member’sbest three year’s average compensationwill,upon requestby TRS, certify the amount, if any, ofthe member’s
noncreditable compensation previously provided by the employer which was converted into TRS creditable salaryand
wagespaidbythe employerduingeachofthe last fivecreditable schoolyears ofthemember’s employment immediately
before the member’s anticipated retirement date.“).
The Honorable Robert E. Talton - Page 4                 (GA-0300)



        The repealed rule established a presumption that certain compensation was noncreditable.
TRS explains that the rule was unworkable because the presumption was difficult to apply and few
employers reported that employees’ noncreditable compensation had been converted. See TRS Brief,
supra note 2, at 11. We agree with TRS that the rule’s repeal has no bearing on whether payments
for accumulated vacation time constitute creditable compensation. First, as TRS points out, the
rule’s repeal did not change the statutory definition of salary and wages, which expressly excludes
from creditable compensation payments for accumulated vacation time. See TEX. GOV’TCODEANN.
5 822.201(b), (c)(3) (Vernon 2004). In addition, after section 25.30’s repeal, TRS rules have
continued to expressly exclude from annual compensation “payments for accrued sick leave or
vacation, except that continued payments of normal compensation when vacation or sick leave is
actually taken by an employee will be included in annual compensation to the extent otherwise
permitted by this section.” 34 TEX. ADMIN. CODE 5 25.21(d)(3) (2004). And the TRS Benefits
Handbook clearly informs members that noncreditable compensation, including payments for unused
vacation leave, cannot be used to determine TRS benetits.4

         Finally, this office has received a brief suggesting that section 825.110 of the Government
Code (1) recognizes conversion of noncreditable compensation to salary “as a permitted activity”5
and (2) limits TRS’s authority to determine whether a member’s reported compensation includes
noncreditable compensation, such as payments for accumulated vacation time.6 Section 825.110
authorizes but does not require TRS to adopt rules establishing a presumption that certain salary has
been converted from noncreditable compensation. See TEX. GOV’T CODE ANN. 9 825.110 (Vernon
2004) (the TRS board of trustees “may adopt rules to exclude from annual compensation all or part
of salary and wages in the final years of a member’s employment that reasonably can be presumed
to have been derived from a conversion of fringe benefits, maintenance, or other payments not
includable in annual compensation to salary and wages”) (emphasis added); see also id. 5 3 11.016( 1)
(Vernon 1998) (“unless the context in which the word or phrase appears necessarily requires a
different construction or unless a different construction is expressly provided by statuteI,] ‘[m]ay’
creates discretionary authority or grants permission or a power”) (Code Construction Act). Section
825.011 does not recognize conversion of noncreditable compensation to salary as a permitted
activity but rather authorizes TRS to adopt a presumption as an administrative tool to identify
amounts that may have been improperly reported as creditable compensation. This discretionary
authority to adopt an administrative presumption does not establish a reverse presumption that, in
the absence of such an administrative presumption, all reported salary must be treated as creditable
compensation. Nor does this authority to adopt rules establishing a general presumption preclude
TRS from examining particular salary payments to determine whether they are creditable or
noncreditable.




         ‘Brief from Robert A. Schuhnan, Feldman & Rogers, L.L.P., to Nancy S. Fuller, Chair, opinion Committee,
Office of the Attorney General at 6 (Oct. 11,2004) (on tile with Opinion Committee).

        61d.at 4-b.
The Honorable Robert E. Talton - Page 5          (GA-0300)



        In sum, under the governing statute and TRS rule, a payment for accumulated vacation time
is not creditable compensation for purposes of determining TRS benefits. Whether a particular
payment under a contract is noncreditable compensation, such as a payment for accumulated
vacation time, or creditable compensation, such as salary and wages for services performed within
the pay period, is a fact matter for TRS to determine, see 34 TEX. ADMIN.CODE5 25.21(f) (2004)
(stating that TRS may conduct an investigation to assess whether ineligible compensation has been
reported), and is beyond the purview of an attorney general opinion, see Tex. Att’y Gen. Op. Nos.
GA-0128 (2003) at 5 (a question requiring resolution of particular facts is “not one in which this
office ordinarily engages in the opinion process”); GA-0106 (2003) at 7 (“This office cannot find
facts or resolve fact questions in an attorney general opinion.“); see also Tex. Att’y Gen. Op. No.
GA-0078 (2003) at 2 (stating that this office does not construe particular contracts).
The Honorable Robert E. Talton - Page 6         (GA-0300)



                                    SUMMARY

                     A payment for accumulated vacation time, paid as salary
              under an employment contract, is not creditable compensation for
              purposes of determining Teacher Retirement System benefits.




BARRY R. MCBEE
First Assistant Attorney General

DON R. WILLETT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Mary R. Crouter
Assistant Attorney General, Opinion Committee
