QlXfice of the 9Utornep Qknerat 

DAN MORALES 

*TroRSLY CENLRAL 

&ate of Qexae; 

September 23, 1996 

The Honorable Barry Telford 

Chair 

Committee on Pensions & Investments 

Texas House of Representatives 

P.O. Box 2910 

Austin, Texas 78768-2910 

Opinion No. DM-4 17 

Re: Whether Government Code section 

822.201(c) constitutionally excludes f+om 

salary and wages, for purposes of determining member contributions to and 

computation of benefits from the Teacher 

Retirement System, “payments received . . . for teaching a driver education and 

traffic safety course” @Q-859) 

Dear Representative Telford: 

In 1995 the legislature amended Government Code section 822.201(c) to exclude 

from a teacher’s salary, for purposes of calculating contriiutions to and benefits from the 

Teacher Retirement System, payments the teacher received for teaching a driver education 

and traflic safety course. You question the constitutionality of this amendment. Altho~gb 

you do not explicitly ask us to construe the amendment, we conclude it excludes only 

payments a teacher receives as a supplement to his or her .regtdar sahuy, probably in 

accordance with a contract supplemental to the teacher’s regular contract. With respect 

to your constitutional question, we conclude that a court would apply the rational.basis 

test to analyxe whether the amendment violates the fourteenth amendment to the United 

States Constitution by distinguishing after-school driver education teachers Tom other 

teachers who receive supplemental pay for extra-curricular activities they perform. We do 

not ultimately resolve the question you raise, however, because the rational basis analysis 

requires the resolution of fact questions. 

We begin by examining relevant provisions of title 8 of the Govermnent Code, 

subtitle C, of which section 822.201-&e section about which you ask-is a part. Title 8, 

subtitle C establishes the Teacher Retirement System of Texas, see Gov’t Code 0 821.003; 

see also Tex. Const. art. XVI, 8 67@)( 1), and provides that every employee of the public 

school system shall be a member, Gov’t Code 3 822.001(a)(2), (b). In certain 

circumstances not relevant here, an employee may be excepted from the membership 

requirementr Id. § 822.002(a). 

‘AII cmployec is excepted from the rnantc&p rcqntrancnt if the unployec has execated and 

filed a tmivcr, participates in aa optional mtircmcnt program, or is employed by a public irnlitntion OT 

higher cdwation that as a condition of employment requims the ernpleyec to be cnmlled as a student at 

the institution; or if the cmployec’s sole aaployment is as a nonccrtifiai instmctor in a thaology 
TbcHonorableBarryTdford - Page 2 (D&417) 

Section 822.201(a) of the Govemmcnt Code provides in general that only a 

member’s salary and wages for service are subject to report and deduction for member 

contributions. Likewiiq only a member? salary and wages arc credited in beneiit 

computati~ns.~ Gov’t Code $822.201(a)(l). The statute defines the phrase “salary and 

wages- as: 

(1) normal periodic payments of money for service the right to 

which accrues on a regular basis in proportion to the service 

pSlfOllllC4 

(2)amountsbywhichthemembe3ssalaryisreducedundera 

salary reduction agreanaa authorized by [Governmen tCode section 

610.021];’ and 

(3) amounts that would otherwise quaI@ as salary and wages 

under Subdivision (1) but are not received directly by the member 

pursuant to a good faith, voluntary written salary reduction 

agreement in order to hance payments to a dehrred compensation 

or tax sheltered fmmity program. . . or to 6nancc ban&t options 

Utld~aUtfbt~plan.... 

Id. 8 822.201(b) (footnote added). 

Thestatuteexpredyexchhsf?omsalaryandwages 

acpensepayments,aUo~paymentsforuausc&vacationorsick 

leave. maiotenance or .other nonmonetary wmpmsatids itinge 

bene&s, deferred compensation other than as provided by Subsection 

B)(3), compensation that is not made pursuaat to a valid 

employment agreemu& pnymem recekd in lhe 19954996 or a 

subsequent schooI par for teading a driwr e&cation and bajic 

safe@ course, and any co-on not dcs@bcd in Subsection (b). 

P. 2309 
The Honorable Barry Telford - Page 3 (~164 17 ) 

Id. 0 822.201(c) (emphasis added). The Seventy-fourth Legislature amended section 

822.201(c) by adding the italicized language. See Act of May 27. lS95,74th Leg., RS., 

ch 260.6 35.1995 Tex. Sess. Law Serv. 2207,2487. 

The conference committee on the bii Senate Bii 1, added the MlQLdmQlt to 

section 822.201(c). No comments wae made on the floor of the House or Senate or in 

any written materials regarding the amendment. We arc. as a consequence, uncertain as to 

the problem the legislature was seeking to remedy by the amendment4 

Although you do not spec%cally ask us to construe the amendment, we believe it 

is a necemry preface to considering the constitutionality of the amendment. We 

hypothesize that a public school may employ ditkre-nt types of driver training teachers.5 

The first type teaches driver education during the regular school day. and the teacher’s 

regular salary compensate-s him or her for teaching driver training, possibly among othex 

sucbtaminal~avaagoformaksmaybearbjeEttomrnipulntioaiftbc 

empl~isabletobavca~~~~paidas~ 

ealaryforarclatMybricfpuiadimmahMy renmwnt TRslawsalul 

NleShavcECOgkdtbiSpdOtOlUtbCpSlUldhvciWbUiCd~tO 

minimize arh dp0kti00. TEX Gov'r CODE ANN. 0 S25.210; 34 Ikx. 

ADMIN. CODE0 25.~.31. 

P. 2310 
The Honorable Barry Telford - Page 4 (DH-4 i 7 ) 

subjects or tasks. See Rduc. Code Q 29.902 (requiring Texas Education Agency to 

estfibliah program of instruction in driver education and traffic safety for public school 

atudents); 19 T.AC. 88 75.121 (setting standards for driver education classroom and incar instruction), .312 (establishing requirements for teacher certitication in driver 

education). The teacher does not receive a payment, supplemental to his or her annual 

salary, for teaching driver train& but teaches driver training pursuant to his or her 

wlitteq regular wntract with the school district. 

The second type receives a payment, supplemental to his or her annual salary, for 

teaching driver training. Presumably, the second type of driver tmining teacher may teach 

subjects other than driver training during the day, but teaches driver education after school 

and during the summers. See infra note 6 (quoting from brief of Texas Classroom 

Teachers’ Association). Generally, we imagine that a teacher who teaches driver 

education in return for a supplemental payment does so pursuant to a supplemental 

contract independent of the teacher’s regular contract with the school district. 

ThelegislaturedircctsthatmrypartofaDtatuteistobeeffectiw,ifthedatute 

can be so wnstrued. Gov’t Code 5 311.021(2). A court must attempt to wnstrue a 

atatute as a whole, harmonizing the statute in its entirety. 67 TBX. JUR. 3D &futes 4 125, 

at 715-17 (1989). Acardingly, we cannot construe section 822.201(c) of the 

Government Code in isolation; we also must consider other relevant sections of chapter 

822, such as section 822.001(a). 

section 822.001(a) clearly mandates that member&p hi the. Teacher Retkment 

System inch&s all employees of the public school ayatem (assuming the employee is not 

excepted under section 822.002(a)). An employee who tea&a driver tmining is not 

explicitly exchuled. Consequently, an employee of a school district who teaches driver 

training~whosesalarvwmpensateshimorhaforteachingdrivaErainingrmrstbea 

member of the Teacher Retirement System, amuming the teacher otkwiae qualities. 

That teacher’s sahuy and wages, which compensate the teacher, at least hr part, for 

teaching driver training, are sahuy and wages subject to report and deduction for member 

wntriiutions and to credit in benefit computations. 

Nevertheless, we believe that the legislature intended to distinguish behveat salary 

a teacher receives to compensate the teacher for teaching driver tmining duting the regular 

~~lday,pursjuanttoaregularwntract,~omapaymentanothateacbareceives,in 

addition to the teacher’s regular sahny, probably pumuant to a suppkmental wntract 

hrdependent ofthe regular wntract. The latter teacher remainsamemberoftheTeacher 

Retirement Syst~ with the teacher% wntriiutions and be&Its premkd upon his or her 

regular salary. Payments the teacher receives, over and above his or her annual salary, for 

teaching driver training may not be used to wntriiute to and wmpute be&Its ffom the 

Teacher Retirement System, however. 

P. 2311 
TheHonorableBarryTelford - Page 5 (DM-417) 

By wnstndng the phrase “payments received. . . for teaching a driver education 

and traflic safety wurd’ in section 822.201(c) to apply only to payments received in 

addition to regular salary, we believe it descrii an exclusion f?om salary and wages that 

is similar to the other items section 822.201(c) explicitly excludes G-am salary and wages. 

For example, expense payments, allowances, and tiinge benefits all are payments a school 

district employee receives in addition to his or her regular salary. Conversely, if we 

wnstrued section 822.201(c) to exclude from salary and wages even payments a teacher 

receives as part of the teacher’s regular salary and under the regular wntract, the phrase 

-payments received.. . for teaching a driver education and traftic safq course” would 

describe an exclusion much di&rent from the other items expressly excluded 6om salary 

and wages. 

Additionally, tbis conclusion is wnsistent with the legislature’s choice of language 

in the 1995 amendment. In particular, we note tbat the legislature described the 

wmpensation received for teaching driver trainhtg as a “payment.” Some of the other 

paymenta mferred to in section 822.201(c) are described as “wmpemation” The term 

“wmpemation” encompasses salary and beneSts. See Attorney General Opiion Jh4-39 

(1983) at 3; Letter Opiion No. 94-72 (1994) at 2. In our opinion, the legislature has 

distinguished between the salary a teacher receives for, in whole or in part, teaching driver 

~Mdapaymentateachareceives,inadditiontohisorhasalary.forteachiag 

driver training. See also 37 T.AC. 5 25.21 (excluding various supplemental payments 

from annual wmpensation for purposes of Teacher Retirement System). 

Having wnstnted the 1995 amendment to section 822.201(c) of the Governmatt 

Code, we turn to your question regard& the wnstitutionality of the amauknt. You 

specifIcally question whether the amendment violates the Fourteenth Amendment of the 

United States Constitution “or any other provision of the federal or state constitution.” 

BecauseyoustatethattheamendmentappearstodkrimWe”inteacherrememen 

system benefits because of course wntent,” we understand your Fourteenth Am& 

wncun to be directed to the Equal Protection Clause. 

In Attorney General opinion JM-401 (1985), this office dkmssed the proper 

standad to be used when wnsidering whether a particular statute complies with the Equal 

Protection Clause of the Fourteenth Amendment to the United States Consthution: 

In reviewing legislation under the equal protection clause of the 

F~utecd~ Amendment, the United States Supreme Court usuahy 

hasusedtwoprimarystanda&. Ifachallengedlawburdensan 

itthexently %uspect” class of pasons or impinges on 8 %ndamenW 

~mtitutional right, the law will be struck down unless the atate 

demonstratestbatthelawisjusti6edbyawmpelhngneed. If8 

mspea class or tbmIamental right is not involved, the law will be 

upheld tmless the challenger can show that the chdkation beara no 

donal relationship to a legitimate state purpose or objective. . . . On 

P. 2312 
The Honorable Bany Telford - Page 6 (DM- 4 17 ) 

8few0ccasio~thecourtakohasutilidanhtemdatetestwhich 

asks whether the challenged law furthers a substantial interest of the 

state. 

Id. it 3-4 (citations omitted). 

A teacher who receives payments, ovu and above the tea&x’s aala~~, for 

teading driver training is not a member of a suspect class.6 See Regents of he Univ. v. 

BaMe, 438 U.S. 265. 306 (1978) (race and ethnic origin). Such a teacher also is not a 

member of a ckssification warranting an intermediate level of scrutiny. See L&i v. La& 

439 U.S. 259, 265 (1978) (iieghimaq); Craig v. Buren, 429 U.S. 190, 197 (1976) 

(gender). In addition, assuming the contribution to and receipt of be&its from a 

retirement system is a “right” at all, the inclusion of a payment for teaching driver tmining 

classes in the calculation of such wntriiutions and benefits is not a Wental right. 

See, e.g., Johnson v. Jtobison, 415 U.S. 361, 375 1~14 (1974) (free exercise of religion); 

Sqviro v. Thompson, 394 U.S. 618, 630 (1969) (mterstate travel); Griswold v. 

lllparwkr,tlwTcrAcamendstluttk amadnmtto~S22.201(c)dlfrcoa~ef 

. . 

t&ii& hn disamW~ F any bdividd bccansc of tk ir&idd’s w 

DiswmWiy ” +@oyyrd Act (the “MEA”), 29 U.S.C. ch 14. llw ADEA prohibh an 

29 U.&C. 

5623(aj(l). ‘l%isuuidiruiminahonmPndatcappliestothc~mmiadivisua~as~ 

astktcrms,cmditions,orpdv@caefemploymwt. Id. l’lwADEAdoanot.bmmu,fotbidan 

anpkyertodirtingu*hontbcbasisofagciftbcdktimkakwoa- factomulAcrtbaaigc. 

Id. # 623(f)(l). 

dtbc emplcyo’s ago. 29 U.S.C. 0 623(i)(l)(A). In ddition, an anploym may mt estdish QT maintab 

a~conhibutionplantbst-~~ti~tomcmploycc’s~orthat~tbcrw~ 

wbicb tbc pko alkca~cs mosey to tbc omplopc’s aammt baxasc of age. Id. 0 623(i)(l)@). We will 

assumcfolptrporcsefIhisopinionthatthc1995 rmmdmrnrr tn saotioa S22.2Ol(c) of tbc GovMuwm 

cedeceasobalditaccmal,reducethraIoofbenditsmuPI.c6aseauocationstoan~r~ 

aroscetboraIoatwbicb amrmts am albatcd to an empkyee’r nxum~. See 29 U.S.C. 0 623(i). 

WCIWdlllM!CdU~tOWbCtbWtbCCkSSitiWtlWOfafUakblgtWCbUSterbar 

tkbaslsecage. Morwver, iftbc 1995 anhdmnt tn accllon 822.201(C) of Ibc clove-tz 

. . . dismpdaamorlgtcacbusclntkrppprrntbasisofage,wcare-mtowbotbutbclegirlahrrr 

iafaandotkrlistbdononanyrwsonablefadoro(hatluu~rge. Srr29U.S.C.#623(f)(l);Ham 

Paqm cb. v. Bigginr. 113 S. Cl. 1701. 1705 (1993); qI McKennon Y. Nashville Banner publishi~? Co., 

llJS.CLS79(1995). Tkrcsohtionofthescqllcstionstlunson~,thc~ontllusiricrappropMtc 

to tk aplnion process. See, ea.. Atterwy Goaaal Opii DM-337 (1995) at 7, DM-98 (1992) at 3, 

H-56 (1973) at 3. 

P. 2313 
TheHonorableBarryTelford - Page 7 @M-417) 

Cannectimf, 381 U.S. 479,482 (l%S) (privacy); Reytmkh v. Sims, 377 U.S. 533.56162 

(1964) (s&age); Gr@in v. Ihois, 351 U.S. 12. 17 (1956) (access to courts). See 

genera& San Antonio In&p. Sch. Dist. v. Rdiguez, 411 U.S. 1, 33 (1973) 

(determination of whether something is fundamental 

Constitution explicitly or implicitly guarantees it). 

right Tes in asEsee@ whethe? 

Accordingly, a court would apply the 

rational basis test to determhx whether the amendment to section 822.201(c) is 

wnstiMional. 

Under that test, a court would uphold the amendment unless a challenger to the 

statute shows that the classi6cation bears no rational relationship to a legitimate state 

purpose or objective. We have been unable to ascerkn the legi&tive purpose for this 

amendment. We are krtha unable to determine why the legislature chose to dL&guish 

between a teacher who receive-s a payment, in addition to his or her regular salary, for 

teaching driva training and a teacher who may receive a supplemental payment for other, 

nonsalaried, school-relatal work he or she performs, for example, coachin& sponsoring a 

dub, driving a bus, or dire&g the school play. 

In any event, wbther there is a legitimate state purpose or objective for exchrding 

a payment received outside of a teacher’s regulsr salary for tea&ing driver tmining classes 

~mtbesalaryusedtocatculateamrmba’scontn’butionstoandbenefitsfiromthe 

Teacher Retirement System, as the amendment to section 822.201(c) does, while not 

exchnIing similar payments a teacher receives for performing otha extra-curricular 

Gnctions, ‘is a fact question that is inappropriate to the opinion process. See, eg., 

Attorney General Opiions DM-337 (1995) at 7, DM-98 (1992) at 3, H-56 (1973) at 3. 

Ur~whahatheMlendmentreasonablyrelatestothatpurposeis8factquestionthat 

cannot he resolved in the opinion process. 

P. 2314 
ThcHonorableBanyTelford - Page 8 (DM-417) 

SUMMARY 

Section 822.201(c) of the Govemment codei wfrich, =ng 

otha things, excJudes from wmpensation that may be used to 

wntriiute ~to and calculate ben&ts fkom the Tea&a Rctiremeau 

system “payments received . . . for teaching 8 driva education and 

tic safbty course,” applies only to payments a driver training 

tcacha receives for teaching driver tmining in addition to the 

teacha’s regular ‘salary, pahaps pumuant to a supplemental, 

independent contract. 

Whether there is a legitimate state purpose for excluding a 

payment received outside of a teacha’s regular salary for teaching 

drivertrainingclasses~omthesalaryustdtocal~eamemba’s 

contributions to and bendits 6om the Tcacha Retirement System, as 

the amendment to section 822.201(c) does, while not excluding 

similar payments a tcacha receives for paforming other extrawrrkula functions, is a fact question. Likewise, whetha section 

822.201(c) actually relates to that purpose is a fkct question. 

JORGE VEGA 

Fti As&ant Attorney General 

DAN MORALES 

Attorney General of Texas 

p. 2315