# The Attorney General of Texas

MARK WHITE AttorneyGan~ml December 3, 1979

Honorable Rene A. Querra Criminal ,Ditrict Attorney Pro Tern Hidalgo County Edinburg, Texas 78539 Opinion No. W-93 Re: Payment by board of trustees of an independent school district for expenses incurred by relatives of board members or other nonboard persons who attended school board-related activities. Dear Mr. Guerra: You ask whether the trustees of an independent school district may pay expenses incurred by spouses or other persons who accompany school board members to board-related activities, even thou@ these persons are not school board memben oremplaydes ofthe school dbtrict YOUfnform us that school board members of an independent school district have attended school-related conventions accompanied by their spouses. The board of trustees has authorfxed payment for theactual expenses, including travel, meals, and l-g, incurred by spouses of board members in attending conventions. The board’s authority to pay expenses incurred by board members in attending school-related convenUons derives from the folbwing proviston of the Education Code:

Looal s&o1 funda

.. . may be used for the purposes enumerated for state and county funds

... and for other purposes necessary in the conduct of , public schools to be detamfned by the board of trusteea..
. Educ. Code S20.48(c). In Attorney General Opinion H-l23 0973) thfs office considered whethera school board member could be reimbursed for his expenses fn attending a convention ofschool admtnfstrators. He had been designated a delegate and was to partfcipate in a program concerning matters important to the school distrfc& The opfnion concluded that the school board oould pay these expenses .where it determined that payment was “necessary in the conduct of the public schools.” Each determination and the legality ofa particular expenditure wasultimately for the courts. If

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the expenditure served only private ends and did not have a publicpurpose it would make an unconstitutional grant ofpublic fundsin violation of article III, sections 51and 52 of the Texas Constitution. E Attorney General Cpinfon H-70 (l973). The school board generally has discretion to determine whether aParticular payment is“necessary inthe conduct of the public s~hoob%~ However,inour c&nion the board may not as a matter of law pay the expenses ofpersons who have no responsibilities or &ties to perform forthe board and whose connection with public school matten isbased solely on their relationship of blood, marriage, or friendship with aboard member. You have submitted no facts indicating that the presence of e school board member’s spotwe, relative orother associate et a convention will serve school purposes. The presence of these persons et e convention appears to bepurely so&l. Altho4gh a spouse’s presence et e convention may facilitate personal contact among administrators and thawcontribute in some small way toschool purposes, webelieve the benefit accruing to the school district istoo minimal to sustain the expenditure. Cf. Warwick v.United States, 236P. Supp. 761 (E.D. Ve.1964)(deductibility fromfederal income tax returnofa wife’s travel expenses). We note that Attorney General Opinion H-1099 (1977) &cluded that spouses of public officials could in some cases receive free transportation on state-owned aircraft where space is available. Whether this benefit could be provided legally depended inpart on the nature of the office, on the spouse% traditional role, and the spouse’s connection with aparticular trip. This opinion must belimited to its facts, and you have presented no facts and we are aware of none which would establish a public purpose served by the spouse*sattendance at a convention. You next ask whether school board members who received payments forexpenses incurred by non-members should be required to reimburse the school district. Where payment is made from public funds under mistake of law, the public body may seek reimbursement. City ofTaylor v; ?Io&~q 166S.W.2d 61(Tex. 1945); Cameron County v. pox, 2S.W.td 433 fTex. Comm. App. 1929,jdgmt adopted). This provides an exception to the general rule that money paid under a mutual mistake oflaw may not be recovered
651 (Tex. Civ. App. - Amari Gorhem. 49Tex. 279 (1679hSteaall v. h&annan CountvTf; City-of Taylor v. Hodxe supra; Gould v. City of El Peso, 440 S.W.2d.696 (Tex. Civ. App.

- El Peso 1969. writ re nr.e.); Nunn-Warren Pub. ,Co.v. Hutchinson County, 45SW.2d illo 1992. writ rePd). om are ounty of Galveston v.

,” -&&d llll (Tax. Civ. App.- Waco 1940, writ di& j,dgmt car.). Although the court in Hayward v. City of Corpus $Zti, 195S.W.?d 995 (Tex. Civ. App.- Waco 1946, writ raf ’dn&a.) stated in dlcta that 3 payments made by a city under mistake of law could not be recovered, its decision actually rested on the Sknd that the statute oflimitations barred recovery. Thus, the school board has authority to require reimbursement of travel expenses illegally paid See also Educ. Code S23.26(a) (trustees may sue and be sued).

‘Asageneral rule, school trustees have broad powers of control and management over the school district, and the courts willnot interfere unleas a clear abtme ofpower and discretion appears. Nichols v. Aldine Ind School Dist., 356S.W.2d182(Tax. Civ. App.- Houston 1962, no writ); e 330 S.W.2d 708 (Tex. Civ. SSIC v.

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App. - Dallas 1959, writ ref’d n.r.e.X Where the school board member9 thcmeeka have received unauthorized travel expenses, their own self-interest prevents them from impartially deciding to forego repayment. We believe their mnml discretion is significantly limited in this case. g Penal Code S39.01 (official misconduct). We believe the board may exercise reasonable discretion in seeking reimbumment from persons nolonger cn the board In making its decision it can considerarch factors asthe amount of funds to be reimbursed, the ease ofcollection, and the legal and other costs incident to collection. SUMMARY

The trustees of an independent school district may not adinarily pay the travel expenses of spouses and other persons who accompany school board members to board-related activities The board has authority to seek reimament for payments made for such travel exoensen

JOHN W.FAINTER, JR. First Assistant‘Attorney General TED L.HARTLEY Executive Assistant Attorney General Prepared by Susan Garrison Assistant Attorney Qeneral APPROVED: OPINIONCOMMfTTRE C. Robert Heath, Chairman David B.Brooks BobGammage Susan Garrison Rick Gilpin William GReid Bruce Youngblood Lenny Zwiener

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