## QlXfice of the 9Utornep Qknerat

DAN MORALES *TroRSLY CENLRAL 

## &ate of Qexae; September23, 1996
The HonorableBarry Telford Chair Committeeon Pensions & Investments Texas House ofRepresentatives P.O. Box 2910 Austin, Texas 78768-2910 OpinionNo. 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 trafficsafety course” @Q-859)

Dear RepresentativeTelford:

In 1995the legislature amended Government Code section 822.201(c) to exclude from a teacher’ s salary, for purposes of calculatingcontriiutions to and benefits from the Teacher Retirement System, paymentsthe teacher received for teaching a driver education and traflic safety course. You questionthe constitutionalityof 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 supplementalto the teacher’ s regular contract. With respect to your constitutional question, we conclude that a court would apply the rational.basis test to analyxewhether the amendmentviolates the fourteenth amendmentto the United States Constitution by distinguishing after-school driver education teachers Tom other teachers who receive supplemental pay for extra-curricularactivitiesthey perform. We do not ultimatelyresolve the question you raise, however, because the rational basis analysis requires the resolution of fact questions.

We begin by examiningrelevant 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 establishesthe Teacher Retirement Systemof 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 thernantc&p rcqntrancnt

iftheunployec

hasexecated

and fileda tmivcr,

participates

in aa optional

mtircmcnt program, or is employed

bya public

irnlitntion OT higher cdwation that as a condition

ofemployment

requims theernpleyec

tobecnmlled

as a student

at the institution;

or if the cmployec’s

sole aaployment

is as a nonccrtifiai

instmctor in a thaologyTbcHonorableBarryTdford - 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 t Code 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 compensationother than as providedby Subsection B)(3), compensation that is not made pursuaat to a valid employment agreemu& pnymem recekd in lhe 19954996 or a subsequentschooI

par for **teading** a driwr e&cation and bajic safe@course, and any co-on not dcs@bcd in Subsection (b).

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

Id. 0 822.201(c) (emphasis added). The Seventy-fourth Legislature amended section 822.201(c) by adding the italicizedlanguage. 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 materialsregardingthe amendment. We arc. as a consequence,uncertain as to the problemthe legislaturewas seekingto remedyby the amendment4 Although you do not spec%callyask 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. 2310The HonorableBarry Telford - Page 4 (DH-4 i 7 )

subjects or tasks. See Rduc. Code Q 29.902 (requiring Texas Education Agency to estfibliahprogram 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, supplementalto 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, supplementalto his or her annual salary, for teaching driver training. Presumably,the second type of driver tmining teacher may teach subjects other than drivertrainingduringthe 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 independentofthe 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 (assumingthe 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 believethat the legislatureintended to distinguishbehveat salary
a teacher receivesto compensatethe 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 hrdependentofthe 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. 2311TheHonorableBarryTelford - 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 believeit descrii an exclusionf?om salary and wages that is similarto the other items section 822.201(c) explicitlyexcludes G-am salary and wages. For example, expensepayments, 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 exclusionmuch di&rent from the other items expressly excluded 6om salary and wages. Additionally,tbis conclusionis wnsistent with the legislature’ schoice 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 distinguishedbetweenthe 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 amendmentto section 822.201(c) of the Governmatt Code, we turn to your question regard& the wnstitutionality of the amauknt. You specifIcallyquestion whether the amendmentviolates 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 complieswith the Equal Protection Clause of the Fourteenth Amendmentto the United States Consthution:

In reviewinglegislationunder the equal protection clause of the

F~utecd~ Amendment, the United States Supreme Court usuahy hasusedtwoprimarystanda&. Ifachallengedlawburdensan itthexently

%uspect” class of pasons or impingeson 8 %ndamenW

~mtitutional right, the law will be struck down unless the atate demonstratestbatthelawisjusti6edbyawmpelhngneed. If8 mspea class or tbmIamentalright is not involved, the law will be upheld tmlessthe challengercan show that the chdkation beara no donal relationshipto a legitimatestate purpose or objective.

. . . On

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

8few0ccasio~thecourtakohasutilidanhtemdatetestwhich asks whether the challengedlaw furthers a substantialinterest of the state.
Id. it 3-4 (citationsomitted).

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 intermediatelevel 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 inclusionof a payment for teaching driver tmining classes in the calculation of such wntriiutions and benefits is not a Wental right. See, e.g., Johnsonv. 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 bccanscof tk ir&idd’s w DiswmWiy ” +@oyyrd Act(the“MEA”), 29 U.S.C. ch 14. llw ADEA

prohibhan 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’sago. 29U.S.C. 0 623(i)(l)(A). Inddition,ananploym may mt estdish QT

maintab a~conhibutionplantbst-~~ti~tomcmploycc’s~orthat~tbcrw~ wbicb tbc pko alkca~csmoseyto tbc omplopc’s aammt baxasc of age. Id. 0623(i)(l)@). Wewill assumcfolptrporcsefIhisopinionthatthc1995 rmmdmrnrr

tnsaotioa S22.2Ol(c)

of tbcGovMuwm cedeceasobalditaccmal,reducethraIoofbenditsmuPI.c6aseauocationstoan~r~ aroscetboraIoatwbicb amrmts amalbatcd toanempkyee’r nxum~. See29U.S.C.

0 623(i). WCIWdlllM!CdU~tOWbCtbWtbCCkSSitiWtlWOfafUakblgtWCbUSterbar tkbaslsecage. Morwver, iftbc 1995anhdmnt tn accllon822.201(C) of Ibc clove-tz

. . . dismpdaamorlgtcacbusclntkrppprrntbasisofage,wcare-mtowbotbutbclegirlahrrr iafaandotkrlistbdononanyrwsonablefadoro(hatluu~rge. Srr29U.S.C.#623(f)(l);Ham Paqm cb. v. Bigginr. 113S. Cl. 1701.1705(1993); qI McKennon

Y. Nashville Banner publishi~?

Co., llJS.CLS79(1995). Tkrcsohtionofthescqllcstionstlunson~,thc~ontllusiricrappropMtc to tk aplnion

process.See, ea.. Atterwy GoaaalOpii DM-337 (1995)at 7, DM-98(1992)at3, H-56(1973)

at3.

P. 2313TheHonorableBarryTelford - 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 implicitlyguarantees 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 amendmentunless 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 determinewhy 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 supplementalpayment for other, nonsalaried, school-relatal work he or she performs, for example,coachin& sponsoring a dub, driving a bus, or dire&g the schoolplay.

In any event, wbther there is a legitimatestate purpose or objective for exchrding
a paymentreceived 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 opinionprocess.

P. 2314ThcHonorableBanyTelford - 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 ~toand 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, independentcontract.
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 contributionsto 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.

JORGEVEGA Fti As&ant Attorney General DAN MORALES Attorney General of Texas

p. 2315