Honorable Ernestine V. Glossbrenner Opinion No.

Chairman public Education Committee Re:A school Texas House ofRepresentatives use of localJM-1051
district's funds for
career ladder payments (RQ-1687) P. 0. Box 2910 Capitol Building, Room 302D Austin, Texas 78768-2910

DearMs. Glossbrenner:

You ask:

If the state allotment designated for support of the career ladder (Section 16.158, Education Code) will not fully fund the
career ladder supplements, can a school district use monies generated locally to allow the school district to meet the payments forcareer ladder levels 2, 3~,and 4 of $2,000, ~$4,000,and ,$6,000 respectively (Section 16.057, Education Code), without implementing stricter localperformance criteria?
Chapter 13, subchapter E, of the Education Code provides forthe assignment ofeach public school teacher to one of four career ladder levels based on performance, experience, job-related education, advanced academic training and job assignments. Section 16.057provides for the supplementing of salaries of teachers at career ladder levels two through four as follows:

(a) Except asprovided by Subsection (c) of this section, each teacher on level two, three, or fourof acareer ladder isentitled to the following annual supplement in addition to the minimum salary setby this subchapter:

Level 2

. . . . . . . . . .$2,000 Level 3

. . . . . . . . . .$4,000Honorable Ernestine V.Glossbrenner -Page 2 (JM-1051)

Level 4

. . . . . . . . . .$6,000
(b) Ifthe district pays more than state minimum salary prescribed by subchapter, the teacher is entitled to career ladder supplements inaddition to amount otherwise paid by the district for the teacher's step. the this the the

(cl Ifthe allotment under Section 16.158 of this code that isdesignated for support of the career ladderwill not fully fund the supplements under this section:

(1) the district may reduce the supplements to not less than the following:

Level 2

. . . . . . . . . .$1,500 Level 3

. . . . . . . . . .$3,000 Level 4

. . . . . . . . . .$4,500

or;
(2) provide for stricter performance criteria than thatprovided under Section 13.302 of this code, subject to the approval of,the State Board of Education:
or (3) take action under both Subdivisions (1)and (2)of this subsection.
Section 16.158provides for q'allotments" to fund the
career ladder supplements as follows:

(a) Each district is entitled to an allotment foreducation improvement and support of the career ladder equal to its unadjusted average daily attendance multiplied by the following amount oragreater amount provided by appropriation:

(1) $100 for the 1984-1985 school year:
(2) $120 for the 1985-1986 school year: and

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(3) $140 for the 1986-1987 school year and each schoolyear thereafter.
(b) Adistrict may expend 25percent of the allotment forany legalpurpose, shall expend 25 percent of the allotment for payment of salaries forpersonnel other than classroom teachers, and shall expend 50 percent 

### of the allotment forcareer ladder salary supplements.
(b-l) Expired.
(c) From the funds designated for that purpose, the,,districtshall supplement the salary ofeach teacher above level one on the career ladder. The district shall decide the amount of supplement to beprovided at each career ladder level.
(d) Money received under this section may notbeused to supplement the salary of an employee fordirecting cocurricular orextracurricular activities.

The funding of the career ladder supplements isa part of the Foundation School Program established under chapter 16of the Education Code. The purpose of the Foundation School Program isto "guarantee that each school district in the state has 'adequateresources to provide each eligible student a basic instructional program suitable to his educational needs." Educ. Code 5 16.002. Section 16.051 provides that inorder to receive financial support from the Foundation School Fund, school districts must comply with the standards set out in subchapter B of chapter 16 including theprovisions of section 16.057, quoted above, providing for career ladder supplements.

Inyour question; inwhich you ask about courses of action available to a school district where the "state allotment designated for support of the career ladder (Section 16.158, Education Code) will not fully fund the career ladder supplements," we presume that by "state allotment" youmean the 50%of the "allotment for education improvement and support of the career ladder," which

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subsection (b)of section 16.158provides shall be expended for career ladder supplements.1
Section 16.057(a) sets out specific dollar amounts to which teachers at career ladder levels two, three, and four are entitled. Weunderstand you to ask whether section 16.057(c), quoted above, provides the exclusive alternatives available to adistrict when the section 16.158 allotment is insufficient topay the supplements orwhether adistrict may use other available funds topay the salary supplements. We donot think that subsection (c)was intended toprohibit
a district from paying the supplements out of other available funds.
Subsection (a) states that teachers are entitled to specific supplement amounts except inthe instance of an insufficient allotment. Subsection (c) provides for reduced supplement amounts and for stricter performance criteria for supplement eligibility. We read the reference to the insufficiency of the allotment as aprerequisite to the availability of the alternatives set out in subsection Cc)- Inother words, we think that the express meaning of subsections (a) and (c) isthat a district is without authority, other than as provided insubsection (c), to lower the amount of the supplements or to raise the criteria for receiving the supplements. We donot find any language in these provisions that prohibits the use of other available funds topay the supplement.

'Several factors support our reading of section 16.057(c). First, nothing else inthe controlling statutes suggests that adistrict may notuse available money other than allotment money topay the supplements. Substantially all of the controlling provisions were enacted aspart of House Bill 72. Acts 1984, 67th Leg., 2d C.S., ch. 28, at 117. The provisions of subsection (c) of section 16.057, which are inquestion here, were added to the language of that bill only after italready contained substantially all of the other provisions discussed. See Bill file, House

1. See Educ. Code 55 16.251, 16.252, 16.254; see also Acts 1987, 70th Leg., 2dC.S., ch. 78, art. III, 5 1, at 632.

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Bill 72, 67th Leg., 2d C.S. (1984).2 If the addition of subsection (c) were intended to limit the use of other funds,we think the legislature would have expressed that intent.
Moreover, we think that construing subsection (c) to reouire districts, whose allotments are insufficient tomeet the subsection (a)supplements, to either lower the supplement, raise performance criteria, orboth, without leaving them the option ofmaking up the subsection (a) supplement amounts with non-allotment monies, would be contrary both to the purpose of the career ladder program, which is~ to improve teaching quality byproviding monetary incentives to more qualified and better performing teachers, and to the overall spirit ofHouse Bill 72.

You do not ask andwe donot address indetail what kinds of "monies generated locally"might be lawfully used tohelp fund the district's career ladder supplements. We donote that section 16.253, forexample, provides in part that "local maintenance funds in excess of the amount assigned to adistrict may be expended forany lawful school purpose.1' See also Educ. Code 520.48.

Abrief 'submitted by theTexas Education Agency3 in response toyour request notes that anadministrative rule adopted~by the agency, 19T.A.C. 5 149.71(l)(4), would limit theuse of other available funds forthe section 16.057 supplements.

In the event that funds designated as the allotment for career ladder salary supplements aredeemed insufficient for placement

2. Hence, the language insection 16.158(c) providing inpart that "the district shall decide the amount of supplement to beprovided at each career ladder level," which language was inboth the'original bill as introduced and inthe enacted version, must be read in light of the later added supplement provisions of section 16.057.

3. The Texas Education Agency isgenerally referred to by statute as the Central Education Agency. It includes, inter alia, the State Board of Education and the State Commissioner ofEducation. See, e.a., Educ. Code 5 11.01& u.

P. 5467Honorable Ernestine V. Glossbrenner -Page 6 (JM-1051)

and/or maintenance ofall teachers meeting the state-mandated minimum criteria for selection and/or maintenance on the teacher career ladder, the local district may fund additional career ladder salary supplements from local or other funds permitted by law and State Board ofEducation rules effective with the 1985-1986 schoolyear, provided that the following requirements have been met:

(A) that funds available for any legal purpose in accordance with the Texas Education Code, 516.158, have been fully exhausted inthepayment of teacher career ladder salary supplements; and
(B) that the local school district demonstrates its intent toutilize career ladder supplements as ameans of identifying and rewarding excellence in teacher performance as opposed to a salary supplement for all teachers meeting the minimum requirements by establishing in written policy one or more requirements for stricter performance as specified in subsection (e)of this section.
Subpart (B)of theprovision appears to require that before local fundingmay beused tomake up adeficiency in the section 16.158 allotment forthe career ladder supplements, adistrict must establish one 'ormore requirements for stricter performance criteria. See also 19 T.A.C. 5 149.71(e). We think that to the extent that the Texas Education Agency's'rule makes mandatory the establishment of stricter performance criteria before local funds canbe used tomake up a shortfall inthe section 16.158 allotment for the section 16.057, subsection (a), career ladder supplements, the rule exceeds the agency's rule-making authority.
Agency rulesmust bewithin the clear intent of the statute and not inexcess of the powers delegated. See. e.s., Kellv v. Industrial Accident Bd., 358S.W:2d 874 (Tex. Civ.App. -Austin 1962,writ ref'd). We find nothing in the Education Code orelsewhere in state lawwhich empowers theTexas Education Agency, or itscomponent body, the State Board ofEducation, to require stricter performance criteria inparticular districts orparticular local situations. See Educ. Code ch. 13, subch. D (providing forthe establishment of career ladder appraisal procedures and performance

p. 5468. Honorable Ernestine V. Glossbrenner -Page 7 (JM-1051)

criteria by the State Board of Education), 55 13.302(a) (providing that theboard shall adopt an appraisal process and criteria, and the criteria must bebased on "observable, job-related behavior, including teachers' implementation of discipline management procedures"), 13.302(c) (providing that theboard shallprovide for *Ia uniform training program anduniform certification standards forappraisers to be used throughout the state"), 13.302(d)(l) (providing that "theassessment process may be administered by orunder the supervision of the Central Education Agency ona statewide basis"), 13.304-13.312 (providing for uniform performance categories, classes of teaching certificates, criteria for entrance into and maintenance of career ladder levels, without making anydistinctions insuch classifications or criteria based onparticular local situations). See also id. 55 11.24 (board's rule-making authority generally), 16.005 (commissioner of education to administer Foundation School Program in accordance with board rules). Again, although section 16.057 provides that local districts may with state board approval implement stricter performance criteria under the circumstances set out there, we find nothing in the agency's statutory rule-making authority empowering the agency to require particular districts to implement stricter performance criteria before ituses funds other than the section 16.058 allotment for salary supplements. Finally, we note that the Texas Administrative Code, 19 T.A.C. 5 149.71(1)(4)(A), requires that local districts wishing touse local funds tomake up the cost of section 16.057(a) career ladder supplements where the section 16.158 allotment for such is insufficient must first exhaust the portion of the section 16.158 allotment funds available for "any legal purpose.'* We findnothing in the statutory scheme governing the career ladderprogram which authorizes theTexas Education Agency to thus restrict the use of local funds and accordingly conclude that the provisions of subpart (A)also exceed that agency's statutory rule-making authority.

SUMMARY

Inorder tomeet the cost of career ladder supplements in the amounts specified in Education Code section 16.057, subsection (a),a school district may, without implementing stricter performance criteria under chapter 13of the code, use available local fundswhere the allotment for the career

p. 5469.

Honorable Ernestine V. Glossbrenner -Page 8 (JM-1051)

ladder under section 16.158 is insufficient. Rules adopted by theTexas Education Agency, 19T.A.C. 5 149.71(&)(4)(A)-(B), purporting to require a school district whose section 16.158 allotment is insufficient to first exhaust section 16.158 funds available for "any legalpurposetland to establish stricter performance criteria before using other local funds to cover the supplement amounts, exceed that agency's statutory ity. rule-making authorJIM MATTOX Attorney General ofTexas

MARY KELLER FirstAssistant Attorney General

LCUMCCREARY Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY Special Assistant Attorney General

RICK GILPIN Chairman, Opinion Committee
Prepared byWilliam Walker Assistant Attorney General

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