# The Attorney General of Texas

August 4, 1983 JIM MATTOX Attorney General

Supreme Court Building P. 0. Box 12548 Austin, TX. 78711. 2548 5121475-2501 Telex 910/874-1367 Telecopier 5121475-0266

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An Equal Opportunity/ Affirmative Action Employer Honorable CarlA. Parker Chairman Committeeon Education Texas State Senate P. 0. Box 12068,Capitol Station Austin, Texas 78711 OpinionNo. JM-53
Re: Whether union dues and other payroll deductions constitutean "indebtedness"under section 2.07 of the Education Code
Dear Senator Parker:
You have requested our opinion regarding certain payroll deductions for a married employee of an independent school district. Specifically,you askwhether section 2.07 of theTexas EducationCode requires consent of the married employee's spouse for the following types of deductions:

1. payment of dues to a union or other employeeorganization; 2. payment of a donation to a charitable organization; 3. payment of installments on a loan from a financialinstitution;or 4. payment of the premiums on an insurance policy. Section 2.07 of the Education Code, formerly article 2883a. V.T.C.S.,provides inpertinentpart that:

(b) Any teacher's or school employee's assignment, pledge, or transfer of his [or her] salary orwages as security for indebtedness-- or any interest or part of his [or her] salary or wages -- thendue orwhich may become due under an existing contract of employment shall be enforceableonlyunder the followingconditions:

. . . .

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(2) Any assignment, pledge, or transfer must be inwriting and acknowledgedas required for the acknowledgment of deeds or other recorded instruments,and if executedby a married person, it must also be executed and acknowledged in a likemanner by his or her spouse;. . .and (3) An assignment, pledge, or transfer shall be enforceable only to the extent that the indebtednessit secures is a valid and enforceable obligation. (Emphasisadded). This section authorizes salary or wage deductions "as security for indebtedness,that is, topay an obligation to a thirdparty"which is both valid and enforceable. Attorney General Opinion MW-566 (1982). Therefore, your question is, in essence, whether deductions of the type listed above are valid and enforceable obligations, i.e., "indebtedness,"and thus require consent of the employee'sspouse. Indebtednesshas been characterizedas "that forwhich an action of debt would lie; a sum of money due by certain and express agreement.'I Merriman V. Swift and Company. 204 S.W. 775, 776 (Tex. Civ.App. - FortWorth 1918,writ ref'd). Article 3.53, section 2B(2) of the Insurance Code defines indebtedness as "the total amount payable by a debtor to a creditor in connectionwith a loan or other credit transaction." The Debt CollectionPracticesAct defines "debt" as "any obligation or alleged obligation arising out of a consumer transaction." V.T.C.S. art. 5069-11.01. Black's Law Dictionary, 5th edition, defines "debt" as a "specified sum of money owing to one person from another, including not only obligation of debtor to pay but right of creditor to receive and enforce payment," (citing State v. Ducey, 266 N.E.2d 233, 235 (Ohio Ct. App. 1970)). It is clear, then. that in order for there to be an "indebtednessutheremust be an obligation, legally enforceable against the debtor, to pay a determinable sum of money. With this in mind, we shall examine each of the deductionsaboutwhich you inquire. This office has recognized the authority of school district employees to approve and school districts to deduct union dues checkoffs and hospitalization plan premiums. Attorney General Opinions M-613 (1970); o-4033, O-3474 (1941); O-2141 (1940). This office has also determined that section 2.07 was not impliedly repealedby section 5.22 of the Texas Family Code which provides that personal earnings are within the sole management of each spouse. Attorney General Opinion MW-485 (1982). These opinions, however, do not address the issue of indebtednessand their silence on thismatter is not to be construed as a tacit conclusion that such deductions constitute indebtedness. On the contrary, this office has recognized

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that such deductionsare voluntary in nature and imposeno obligation on either employee or employer:

The proposed plan imposesno financial obligation ,onthe part of the district. The teacherswould enter theplan on a purelyvoluntarybasis, andwe see no reason why the teachersmay not authorize the district to make deductions from their salaries.
. . As we have mentioned above, narticioation in the elan is ourelv voluntary: iherefore, the teachers couldwithdraw both their membership in the plan and their authorization to the district to make deductions at any time. (Emphasisadded). Attorney General Opinion O-4033 (1941). Furthermore, the Texas

,- Right-To-Work Law, article 5207a, V.T.C.S., and article 5154~ (as

applied to public employees) protect the right of all persons to accept or decline membership in labor unions. Lunsford v. City of Bryan, 297 S.W.2d 115, 116 (Tex. 1957). Accordingly, we conclude that, since checkoffauthorizations for school district employees are voluntary and revocable at will, it follows that consent of married employees' spouses touniondues deductionsis not requiredby section 2.07 of the EducationCode. Donations to charitable organizations deducted from salary or wages likewise need not receive approval of the married employee's spouse. Charitable donations are similar to union dues in that the employeeundertakesno enforceableobligation to pay any sum; rather, the deduction system serves as an alternate method of donation that the employee may exercise at his or her discretion. As with dues checkoffs, the purpose of charitable deductions is to provide employee, employer, and charitable organization with a simple, efficientmethod of transferringfunds. The essential requisites for a charitable donation or gift are (1) capacity of the donor, (2) intention of the donor to make a gift, (3) completed delivery of the gift to or for the donee, and (4)acceptanceof the giftby the donee. In re Greenberg'sWill, 286N.Y.S. 56, 58 (N.Y.Surrogate'sCt. 1936), Black'sLaw Dictionary 619 (5thed. 1979). Moreover, a valid donation requires the donor to divest himself or herself of title and control of the giftwithout expectationof its return. Walkerv. Commissioner of InternalRevenue, 91 F.2d 297, 298 (5th Cir. 1937). A charitable deduction, therefore, does not become a donation until it has been transferred to the particular charity. The authorization for such a deduction does not amount to an enforceable obligation and may be terminatedby the employeeat any time. Consequently,such deductions do not constituteindebtednesswithin thepurview of section 2.07.

”

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Deductions for payments of installments on loans and insurance premiumsaremore likely tobe categorizedas indebtedness,for either may arise in connection-with a credit or consumer transaction. See Ins. Code art. 3.53, §2B(5);V.T.C.S. art. 5069-11.01. However, the amount of indebtedness, if any, and method of repayment are fact determinations, dependent upon the terms of each contract. Absent more specific information concerning such deductions, we cannot categorically conclude that they constitute indebtedness as required by section 2.07.
SUMMARY

Section 2.07 of the Texas Education Code requires a married employee to obtain his or her spouse's consent for salary deductions only when such deductions are offered as security for a valid and enforceable obligation. Deductions for dues and charitable donations do not require spouse's consent. Deductions for loan payments and insurancepremiumsmay constituteindebtedness but such a determination is dependent upon the terms of individualcontracts. Very trulyyours

J /I*

4 JIM MATTOX Attorney General of Texas TOM GREEN FirstAssistantAttorney General
DAVID R. RICHARDS ExecutiveAssistantAttorney General Preparedby Rick Gilpin AssistantAttorney General
APPROVED: OPINION COMMITTEE Rick Gilpin,Acting Chairman Jon Bible David Brooks Colin Carl Jim Moellinger Nancy Sutton

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