# The Attorney General of Texas

November 27, 1979

MARK WHITE Attorney General

Honorable M.L.Brockette Commissioner ofEducation Texas Education Agency 201East Eleventh Street Austin, Texas 78701 Opinion No. MW- 99

Re: Legality of allowing professional organizations to utilize the “released time” of public school personnel.

Dear Commissioner Brockette:

In1975the Fort Worth Independent School District, which participates in the Foundation School Program, adopted a policy that allows certain professional organizations to use school personnel during working hours to pursue the business of the organization. You ask if such a policy is consistent with various constitutional and statutory provisions.

The adopted policy statement reads:

‘Nine days released time with full pay will be allotted to professional organizations for each 100 members who are in good standing. Such allo:ments will be in blocks of 100. No allowance will be made for less than 100 in each block. The released time may be used at the discretion of the professional organization for pursuing the busineas of the organization byits officers or members.

The released time will be based on members ig good standing for the school year immediately preceding the school year activating the released time. Professional organizations wiU include Fort Worth Classroom Teachers Association, American Federation of Teachers, and the Fort Worth Administrators Association.

The roll of members must be filed with the bard of education for verification of numbers and employee status.’

p. 270Honorable M.L.Hrockette - I’egeTwo (NW-89j

Youinquire whether the prohibitions ofarticle III,sections 51and 52and article XVI, section 6ofthe Texas Constitution render this policy unconstitutional. Article Ill, section 51prohibits the grant of public moneys to any individual, association of individuals, or corporation. Section 52ofarticle IIlprohihits political subdivisions from granting public money or any thing of value to any individual, association, or corporation. Section 6of article XVIprohibits appropriations for private or individual purposes unless authorized by the constitution. The Fort Worth Independent School District is covered by these provisions of the constitution. See Rarlingen Ind. School Dist. v. C. H. Page &Bro., 48 S.W.2d 983 (Tex. Comm. App. 1932,jdgmt. adopted); Attorney General Opinions M-1074 (19721,M-950 09711.

These constitutional provisions prohibit the grant ofpubhc funds orbenefits to any association unless the transfer serves apublic purpose and adequate contractual or other controls ensure its realization. Attorney General Opinion H-1309(19781. The released time allotted to the professional associations constitutes a benefit financed from public funds. The policy permits teachers topursue the business ofthe professional organization while being paid by the school district. In 1978-79, the Classroom Teachers Association used 301days of released time at an estimated total cost of almost 523,000 in teacher salaries. In addition, the school district was required to pay substitute teachers. Thus, the poliey authorizes the transfer ofavaluable benefit to the professional association.

In our opinion, the school district has neither articulated a public purpose to be served bythe released time program nor placed adequate controls on the use of released time to insure that a public purpose will be served. The time is to be used at the discretion of the professional organization for pursuing its business. Inour opinion, this policy grants a substantial benefit to a private professional organization which has no obligation ‘to apply it to accomplish a public purpose. In Texes Pharmaceutical Association v. Doolee, 90 S.W.2d 328(Tex. Civ. App. - Austin 1936,no writ), the court invalidated an act which unconditionally appropriated public funds to a private professional association, finding it inviolation ofarticle Ill, section 51. See also Attorney General Opinion M-661(19701(county may not grant money to charity;. Webelieve the unconditional nature of the grant ofservices to the professional organization renders the cited policy in violation of article Ill, sections 50 and 51and article XVl, section 6. A!though the school district may constitutionally pay teachers’ expenses at school-related activities such as training or meetings for teachers, see Attorney General Opinions R-133 (19731,and C-474 (19651,OFadopt certain types ofrelease time programs, it %S not specifically tailored the present expenditures to the accomplishment of school-related purposes. Therefore, we conclude that the policy is unconstitutional. In light of our decision inthis issue, weneed not address your other questions.

SUMMARY

A policy of the Fort Worth Independent School District, which p~ermitsteachers towork for professional organizations while being paid salaries by the school district, constitutes an unconditional grant of public funds to a private organization and is therefore unconstitutional.

P. 271Honorable M.L.Brockette - Page Three (NW-891

MARK WHITE Attorney General ofTexas

JOHNW.FAINTER, JR. First Assistant Attorney General

TEDL.HARTLEY Executive Assistant Attorney General
Prepared bySusan Garrison Assistant Attorney General

APPROVED: OPINION COMMITTEE

C.Robert Heath, Chairman Ernest Boardman David B.Brooks BobGammage Susan Garrison Rick Gilpin William GReid Bruce Youngblood Lonny Zwiener

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