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## GENERAL OFTE~AS

October 20.1969

Honorable J.W. Edgar Commissioner of Education Texas Education Agency 201 East 11th Street Austin, Texas 78711

Dear Dr. Edgar: Opinion No. (M-493)
Re: Whether theboard of trustee~s of an independent school district may schedule and pay, from local school funds, ahigher salary to teachers having dependents than itpays to those not having dependents.

Your recent letter requesting the opinion of this department concerning the referenced matter, states, inpart, as follows:

"In itsdeliberations relative to a schedule for ahigher salary to its employees, theboard of trustees of a school district (Austin I.S.D.) is pursuing thepossibility ofhigher pay from local school funds for such employees, men orwomen, who are determined tobe head-of-a-household, the board citing as a reference the practice of the Federal Government for income tax purposes granting certain allowances for head of ahousehold.
"Itpoints out in support of such ahigher salary determination predicate that a head-of-ahousehold normally has more expenses than does one without family responsibilities; further that such could be either husband orwife, amarried person without a spouse having dependents, or a single



### -2352-Honorable J. W. Edgar, page 2 (M-49,3)

person having aged parents or other dependents that incurs greater living expenses tohim or her than a single person without such responsibilities. "TheBoard of Trustees of theAustin Independent School District has requested thisAgency to obtain an opinion from the Office ofAttorney General on the following question:

'Legallymay a public school district from local school funds schedule and pay employees locally determined ashead-of-ahousehold a supplemental salary which ismore than itwould pay employees who are not head-of-a-household?'" Section 1 ofArticle 2922-14, Vernon's Civil Statutes, as amended by Section 1of House Bill Number 240 (Acts61st Leg., R.S. 1969, ch. 872, p. 2634) provides that:

"Theboard of trustees of each and every school district in the State ofTexas shall pay their teachers upon a salary schedule providing aminimum beginning base salary, plus increments above the minimum for additional experience inteaching as hereinafter prescribed. The salaries fixed herein shall be reqarded asminimum salaries only and each district may supplement such salaries." (Emphasis added.)
It iswell settled that the school trustees are creatures of the lawpossessing only the jurisdiction and powers expressly or impliedly given them by statute. 51Tex.Jur.2d 443, Schools, Sec. 83. In this situation, the statute, Article 2922-14, Vernon's Civil Statutes, requires the board of trustees of every school district topay their teachers upon a salary schedule, and permits the district to supplement such salaries. Consequently, the school district may supplement such salaries upon any fair, non-discriminatory, and constitutional basis

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-Honorable J.W. Edgar, page 3 (M-493)

which itdeems best topromote the purposes and objectives of the school system.
It is recognized that for thepurpose of fixing compensation forvarious officers and employees, classifications may be made so long as the classification isbased on a real distinction and it isnot unreasonable, arbitrary or capricious. Bexar County v. Tynan, 128 Tex. 223,97 S.W.2d 467 (1936). The test is whether there isa reasonable basis for the classification. Wood v.Wood, 159Tex. 350, 320 S.W. 807 (1959):Smith v. Davis, 426 S.W.2d 827 (Tex.Sup. 1968). Therefore, we believe the Supreme Court of Indiana stated the general rulewhich is applicable to the facts herein presented when inHutton v. Gill, 8N.W.2d 818 (Ind.Sup. 1937), it stated at page 820:

"School boards as amatter of common knowledge, have, inadopting their several schedules, classified teachers under various heads and fixed the compensation for the several classifications. The record shows that the appellants in this case followed this method. So, if the legislative intent
...was to authorize the school board to classify its teachers, itnecessarily follows that such classification must be reasonable, natural andbased upon substantial differences qermane to the subject, or upon some basis having a reasonable relation to thework assigned. If the classification isarbitrary or capricious, and upon abasis havinq no relation to thekind or character of thework to be done, itwould be void and unlawful, and in conflict with the statute." (Emphasis added.)
In the above case, the school trustees attempted to classify female teachers, for compensation purposes, according to their marital status, and place those who were married ina lower salary classification than unmarried women having likequalifications and doing likework. The court proceeded tohold such a policy unreasonable and invalid, stating at page 820:

-2354-Honorable J.W. Edgar, page 4 (M-493)
"This, in our judgment, was unlawful and arbitrary, and formed no rational basis for a classification. Ithad no reasonable relation to the work assigned toher, as the fact that appellant was amarried woman did not affect her ability to impartknowledge or perform her duties in the schoolroom. It is conceded that her marriage status had no such effect, and, ifnot, there could be no just or reasonable basis for the school board classifying her as far as compensation is concerned, ina different and lower class than an unmarried female teacher having likework." This and other pertinent cases are annotated in 133A.L.R. 1437, at page 1439, and in 47Am. Jur. 381, Schools, Section 120. Therefore, where the determination of the method of classification is left to the Local school board andwhere the method adopted is reasonable, natural and based upon substantial difference germane to the subject or upon some basis having a reasonable relation to thework assigned, the duties tobe performed or the services tobe rendered the determination of the board will be upheld. However, a differential in salary based not upon amaterial difference in training, qualifications, experience, abilities, duties, or services tobe rendered, such action amounts to adetermination which isarbitrary and discriminatory and which forms no rational basis for the classification. Likewise, a salary not based on any relation to the work assigned orupon material difference intraining, qualifications, experience, abilities or duties, such action may be held tobe aviolation of Sections 51, 52and 53 ofArticle III of the Constitution ofTexas, which prohibits any grant of public moneys inaid of individuals. See also Article XVI, Section 6, Constitution of Texas, outlawing apporpriations for private or individual purposes. If the board's order fixing the supplemental salary is based solely onmatters not having any relation to thework assigned or any relation to the training, qualification,

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Honorable J. W. Edgar, page 5 (M-492

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experience, ability or duties of the teacher, such order of supplementation would not be compensation for services rendered but rather a grant inaid of individuals forprivate purposes inviolation of Section 51 ofArticle III of the Constitution ofTexas.
In view of the foregoing, you are advised theboard of trustees of an independent school district may not legally schedule and pay, from local school funds, teachers a supplemental salary on the sole basis of their personal status as head-of-a-household, which salary would be more than itwould pay other teachers not having such personal status but who have the same qualifications and perform the same quality and quantum ofwork, with like responsibilities.
SUMMARY The board of trustees of an independent school district has the discretionary power to supplement salaries pursuant to the provisions ofArticle 2922-14, Vernon's Civil Statutes. However, the personal status of a teacher ashead-of-a-household cannot be the sole basis for fixing the amount of supplemental salary tobe paid a teacher.



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MARTIN neral ofTexas Prepared by John Reeves Assistant Attorney General

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Honorable J.W. Edgar, page 6 (M-493)

APPROVED: OPINION COMMITTEE
Kerns Taylor, Chairman George Kelton, Vice-Chairman Jim Swearingen Roger Tyler Alfred Walker Jack Goodman
MEADE F. GRIFFIN Staff Legal Assistant
HAWTHORNE PHILLIPS Executive Assistant
NOLA WHITE First Assistant

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