Case Information

*1 QlXfice of the 9Utornep Qknerat

&ate of Qexae;

DAN MORALES September 23, 1996 *TroRSLY CENLRAL

The Honorable Barry Telford Opinion No. DM-4 17 Chair

Committee on Pensions & Investments Re: Whether Government Code section Texas House of Representatives 822.201(c) constitutionally excludes f+om P.O. Box 2910 salary and wages, for purposes of de- Austin, Texas 78768-2910 termining member contributions to and

computation of benefits from the Teacher Retirement System, “payments receiv- ed . . . for teaching a driver education and traffic safety course” @Q-859) Dear Representative Telford:

In 1995 the legislature amended Government Code section 822.201(c) to exclude from a teacher’s salary, for purposes of calculating contriiutions to and benefits from the Teacher Retirement System, payments the teacher received for teaching a driver education and traflic safety course. You question the constitutionality of 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 supplemental to the teacher’s regular contract. With respect to your constitutional question, we conclude that a court would apply the rational.basis test to analyxe whether the amendment violates the fourteenth amendment to the United States Constitution by distinguishing after-school driver education teachers Tom other teachers who receive supplemental pay for extra-curricular activities they perform. We do not ultimately resolve the question you raise, however, because the rational basis analysis requires the resolution of fact questions.

We begin by examining relevant 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 establishes the Teacher Retirement System of 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 the rnantc&p rcqntrancnt if the unployec has execated and filed a tmivcr, participates in aa optional mtircmcnt program, or is employed by a public irnlitntion OT higher cdwation that as a condition of employment requims the ernpleyec to be cnmlled as a student at the institution; or if the cmployec’s sole aaployment is as a nonccrtifiai instmctor in a thaology *2 TbcHonorableBarryTdford - 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 compensation other than as provided by Subsection B)(3), compensation that is not made pursuaat to a valid employment agreemu& pnymem recekd in lhe 19954996 or a subsequent schooI par for teading a driwr e&cation and bajic safe@ course, and any co-on not dcs@bcd in Subsection (b).

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The Honorable Barry Telford - Page 3 (~164 17 ) Id. 0 822.201(c) (emphasis added). The Seventy-fourth Legislature amended section 822.201(c) by adding the italicized language. 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 materials regarding the amendment. We arc. as a consequence, uncertain as to the problem the legislature was seeking to remedy by the amendment4

Although you do not spec%cally ask 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

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ealaryforarclatMybricfpuiadimmahMy renmwnt TRslawsalul NleShavcECOgkdtbiSpdOtOlUtbCpSlUldhvciWbUiCd~tO TEX Gov'r CODE ANN. 0 S25.210; 34 Ikx. minimize arh dp0kti00. ADMIN. CODE0 25.~.31. *4 The Honorable Barry Telford - Page 4 (DH-4 i 7 )

subjects or tasks. See Rduc. Code Q 29.902 (requiring Texas Education Agency to estfibliah program 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 in- car instruction), .312 (establishing requirements for teacher certitication in driver education). The teacher does not receive a payment, supplemental to 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, supplemental to his or her annual salary, for teaching driver training. Presumably, the second type of driver tmining teacher may teach subjects other than driver training during the 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 independent of the 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 (assuming the 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 believe that the legislature intended to distinguish behveat salary a teacher receives to compensate the 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 hrdependent ofthe 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.

TheHonorableBarryTelford - 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 believe it descrii an exclusion f?om salary and wages that is similar to the other items section 822.201(c) explicitly excludes G-am salary and wages. For example, expense payments, 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 exclusion much di&rent from the other items expressly excluded 6om salary and wages.

Additionally, tbis conclusion is wnsistent with the legislature’s choice 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 distinguished between the 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 amendment to section 822.201(c) of the Governmatt Code, we turn to your question regard& the wnstitutionality of the amauknt. You specifIcally question whether the amendment violates 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 complies with the Equal Protection Clause of the Fourteenth Amendment to the United States Consthution:

In reviewing legislation under the equal protection clause of the the United States Supreme Court usuahy F~utecd~ Amendment, hasusedtwoprimarystanda&. Ifachallengedlawburdensan itthexently %uspect” class of pasons or impinges on 8 %ndamenW right, the law will be struck down unless the atate ~mtitutional demonstratestbatthelawisjusti6edbyawmpelhngneed. If8 mspea class or tbmIamental right is not involved, the law will be upheld tmless the challenger can show that the chdkation beara no donal relationship to a legitimate state purpose or objective. . . . On *6 The Honorable Bany Telford - Page 6 (DM- 4 17 )

8few0ccasio~thecourtakohasutilidanhtemdatetestwhich asks whether the challenged law furthers a substantial interest of the state.

Id. it 3-4 (citations omitted).

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 intermediate level 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 inclusion of a payment for teaching driver tmining classes in the calculation of such wntriiutions and benefits is not a Wental right. See, e.g., Johnson v. 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 . . DiswmWiy ” +@oyyrd Act (the “MEA”), 29 U.S.C. ch 14. llw ADEA prohibh an t&ii& hn disamW~ F any bdividd bccansc of tk ir&idd’s w 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’s ago. 29 U.S.C. 0 623(i)(l)(A). In ddition, an anploym may mt estdish QT maintab a~conhibutionplantbst-~~ti~tomcmploycc’s~orthat~tbcrw~

wbicb tbc pko alkca~cs mosey to tbc omplopc’s aammt baxasc of age. Id. 0 623(i)(l)@). We will assumcfolptrporcsefIhisopinionthatthc1995 rmmdmrnrr tn saotioa S22.2Ol(c) of tbc GovMuwm cedeceasobalditaccmal,reducethraIoofbenditsmuPI.c6aseauocationstoan~r~ aroscetboraIoatwbicb amrmts am albatcd to an empkyee’r nxum~. See 29 U.S.C. 0 623(i).

WCIWdlllM!CdU~tOWbCtbWtbCCkSSitiWtlWOfafUakblgtWCbUSterbar tkbaslsecage. Morwver, iftbc 1995 anhdmnt tn accllon 822.201(C) of Ibc clove-tz . . . dismpdaamorlgtcacbusclntkrppprrntbasisofage,wcare-mtowbotbutbclegirlahrrr

iafaandotkrlistbdononanyrwsonablefadoro(hatluu~rge. Srr29U.S.C.#623(f)(l);Ham Paqm cb. v. Bigginr. 113 S. Cl. 1701. 1705 (1993); qI McKennon Y. Nashville Banner publishi~? Co., llJS.CLS79(1995). Tkrcsohtionofthescqllcstionstlunson~,thc~ontllusiricrappropMtc to tk aplnion process. See, ea.. Atterwy Goaaal Opii DM-337 (1995) at 7, DM-98 (1992) at 3, H-56 (1973) at 3.

TheHonorableBarryTelford - 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 right Tes in asEsee@ whethe? Accordingly, a court would apply the Constitution explicitly or implicitly guarantees it). rational basis test to determhx whether the amendment to section 822.201(c) is wnstiMional.

Under that test, a court would uphold the amendment unless 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 determine why 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 supplemental payment for other, nonsalaried, school-relatal work he or she performs, for example, coachin& sponsoring a dub, driving a bus, or dire&g the school play.

In any event, wbther there is a legitimate state purpose or objective for exchrding a payment received 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 opinion process.

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ThcHonorableBanyTelford - 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 ~to and 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, independent contract.

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 contributions to 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 extra- wrrkula functions, is a fact question. Likewise, whetha section 822.201(c) actually relates to that purpose is a fkct question.

DAN MORALES Attorney General of Texas JORGE VEGA

Fti As&ant Attorney General

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