The Attorney General of Texas 

MARK WHITE 

Attorney Gan~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 or emplaydes of the school dbtrict YOU fnform 

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 S 20.48(c). In Attorney General Opinion H-l23 0973) thfs office 

considered whether a school board member could be reimbursed for his 

expenses fn attending a convention of school 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 of a particular expenditure was ultimately for the courts. If 

P. 285 
. . 

Honorable Rene A. Guerra - Page Two (MW-9 3) 

the expenditure served only private ends and did not have a public purpose it would make 

an unconstitutional grant of public funds in violation of article III, sections 51 and 52 of 

the Texas Constitution. E Attorney General Cpinfon H-70 (l973). 

The school board generally has discretion to determine whether a Particular payment 

is “necessary in the conduct of the public s~hoob%~ However, in our c&nion the board may 

not as a matter of law pay the expenses of persons who have no responsibilities or &ties 

to perform for the board and whose connection with public school matten is based solely 

on their relationship of blood, marriage, or friendship with a board member. You have 

submitted no facts indicating that the presence of e school board member’s spotwe, 

relative or other associate et a convention will serve school purposes. The presence of 

these persons et e convention appears to be purely so&l. Altho4gh a spouse’s presence et 

e convention may facilitate personal contact among administrators and thaw contribute in 

some small way to school purposes, we believe the benefit accruing to the school district 

is too minimal to sustain the expenditure. Cf. Warwick v. United States, 236 P. Supp. 761 

(E.D. Ve. 1964) (deductibility from federal income tax return of a 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 in part 

on the nature of the office, on the spouse% traditional role, and the spouse’s connection 

with a particular trip. This opinion must be limited 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*s attendance at a convention. 

You next ask whether school board members who received payments for expenses 

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 of Taylor v; ?Io&~q 166 S.W.2d 61 (Tex. 1945); Cameron County v. 

pox, 2 S.W.td 433 fTex. Comm. App. 1929, jdgmt adopted). This provides an exception to 

the general rule that money paid under a mutual mistake of law may not be recovered 

651 (Tex. Civ. App. - Amari 

Gorhem. 49 Tex. 279 (1679h Steaall 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, 45 SW.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, 195 S.W.?d 995 (Tex. Civ. App. - Waco 1946, writ raf’d n&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 of limitations barred recovery. 

Thus, the school board has authority to require reimbursement of travel expenses illegally 

paid See also Educ. Code S 23.26(a) (trustees may sue and be sued). 

‘As a general rule, school trustees have broad powers of control and management 

over the school district, and the courts will not interfere unleas a clear abtme of power and 

discretion appears. Nichols v. Aldine Ind School Dist., 356 S.W.2d 182 (Tax. Civ. App. - 

Houston 1962, no writ); e SSIC v. 330 S.W.2d 708 (Tex. Civ. 

P. 286 
. - -,~ 

. . 

Honorable Rene A. Querre - Page Three (NW-931 

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 S 39.01 (official misconduct). We 

believe the board may exercise reasonable discretion in seeking reimbumment from 

persons no longer cn the board In making its decision it can consider arch factors as the 

amount of funds to be reimbursed, the ease of collection, 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 

Bob Gammage 

Susan Garrison 

Rick Gilpin 

William G Reid 

Bruce Youngblood 

Lenny Zwiener 

13. 287