Can Texas exclude a teacher's driver-education pay when calculating Teacher Retirement System benefits?

Plain-English summary

Texas teachers belong to the Teacher Retirement System, and their contributions and pensions are calculated from their "salary and wages." In 1995 the Legislature added a line to Government Code section 822.201(c) that took "payments received . . . for teaching a driver education and traffic safety course" out of that salary figure. A state representative who chaired the House Committee on Pensions and Investments asked whether that exclusion was constitutional, since it appeared to single out driver-education pay based on course content.

Before reaching the constitutional question, the Attorney General had to figure out what the amendment actually excluded. The office read it narrowly. A teacher who teaches driver education during the regular school day, as part of a regular salaried contract, still has that pay counted toward the retirement system. The exclusion reaches only a separate payment a teacher gets on top of regular salary, typically under a supplemental contract, for teaching driver education after school or over the summer. Read that way, the driver-education exclusion lines up with the other things section 822.201(c) already excluded, like expense payments, allowances, and fringe benefits, which are all extras paid on top of regular salary.

On the constitutional question, the office concluded that a court would review the amendment under the rational-basis test, the most forgiving tier of equal-protection analysis. The distinction did not burden a suspect class (like race or gender) or a fundamental right, and the office explained that getting a particular payment counted toward a pension is not a fundamental right. Under rational basis, a court would uphold the amendment unless a challenger showed it bore no rational relationship to a legitimate state purpose. Here the office hit a wall: it could not find any stated legislative purpose for the change, and it said that whether a legitimate purpose exists, and whether the amendment reasonably relates to it, are fact questions it could not resolve in the opinion process. So the office did not decide whether the amendment is constitutional.

Currency note

This opinion was issued in 1996. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The Government Code sections discussed here (chapter 822 of the Teacher Retirement System statutes) were the provisions in effect in 1996, including the 1995 amendment to section 822.201(c). The retirement statutes and the driver-education rules have been amended since, so the specific section numbers and the exact text of the exclusion may differ today. Anyone with a current question about what counts toward Teacher Retirement System contributions or benefits should check the present statute and TRS rules.

What the opinion meant at the time

Teachers who taught driver education: Under the opinion, the exclusion reached only supplemental driver-education pay, that is, money paid on top of a teacher's regular salary, probably under a separate contract for after-school or summer instruction. Driver-education work that was part of a teacher's regular salary under the regular contract still counted toward Teacher Retirement System contributions and benefits.

The Teacher Retirement System: The opinion treated the driver-education exclusion as similar in kind to the other section 822.201(c) exclusions (expense payments, allowances, fringe benefits), all of which are extras paid in addition to regular salary.

Anyone considering a constitutional challenge: The office concluded only rational-basis review applied, because no suspect class or fundamental right was at stake. It expressly declined to decide whether the amendment was constitutional, explaining that the legislative purpose, and whether the amendment reasonably relates to it, were fact questions outside the opinion process.

Common questions

What pay did the 1995 amendment take out of teacher retirement calculations?
Payments for teaching a driver education and traffic safety course. The Attorney General read this to mean only supplemental pay on top of regular salary, not driver education taught as part of a teacher's regular salaried duties.

If a teacher taught driver education during the regular school day as part of the job, did the exclusion apply?
No, under the opinion's reading. Pay that was part of the teacher's regular salary under the regular contract still counted toward Teacher Retirement System contributions and benefits.

Did the AG say the exclusion was unconstitutional?
No. The office said a court would apply the rational-basis test and would uphold the amendment unless a challenger showed it bore no rational relationship to a legitimate state purpose. The office could not identify the legislative purpose and said whether one exists, and whether the amendment relates to it, were fact questions it could not resolve.

Why rational basis and not strict scrutiny?
Because the distinction did not burden a suspect class (such as race or gender) or a fundamental right. The office reasoned that having a particular payment counted toward a pension is not a fundamental right, so the lowest tier of equal-protection review applied.

Background and statutory framework

Title 8, subtitle C of the Government Code establishes the Teacher Retirement System of Texas (Gov't Code section 821.003; see also Texas Constitution article XVI, section 67(b)(1)) and makes every public-school-system employee a member (section 822.001(a)), with narrow exceptions (section 822.002(a)). Only a member's "salary and wages" are subject to deduction for contributions and credited in benefit computations (section 822.201(a)), and section 822.201(b) defines salary and wages. Section 822.201(c) lists what is excluded, and the 1995 Legislature added the driver-education payment to that list (Act of May 27, 1995, 74th Leg., R.S., ch. 260, § 35).

To read the new exclusion, the office applied the rule that every part of a statute should be given effect (section 311.021(2)) and that a statute is construed as a whole. Because chapter 822 makes driver-education teachers members whose regular salary counts, the office concluded the exclusion must reach only payments received in addition to regular salary, harmonizing the new language with the surrounding exclusions.

For the constitutional analysis, the office laid out the familiar equal-protection tiers, drawing on its earlier Attorney General Opinion JM-401 (1985) and on United States Supreme Court decisions marking the boundaries of suspect classes, intermediate scrutiny, and fundamental rights. Finding none of those triggers present, it placed the amendment in rational-basis territory and stopped short of applying the test, because doing so required facts about the Legislature's purpose that the opinion process cannot develop. A footnote also raised, without resolving, whether the distinction might implicate the federal Age Discrimination in Employment Act, again treating the key questions as factual.

Citations

Statutes, constitutional provisions, rules, and session law:

• Gov't Code § 822.201(c) (the driver-education exclusion at issue)
• Gov't Code § 822.201(a) (only salary and wages count toward contributions and benefits)
• Gov't Code § 822.201(b) (definition of "salary and wages")
• Gov't Code § 821.003 (establishes the Teacher Retirement System)
• Gov't Code § 822.001(a) (membership)
• Gov't Code § 822.002(a) (exceptions to membership)
• Gov't Code § 311.021(2) (every part of a statute is to be effective)
• Gov't Code § 610.021 (salary reduction agreement, referenced in the definition)
• Gov't Code § 825.210
• Tex. Const. art. XVI, § 67(b)(1)
• Educ. Code § 29.902 (driver education program of instruction)
• 19 T.A.C. § 75.121 (driver education instruction standards)
• 37 T.A.C. § 25.21 (excluding supplemental payments from annual compensation for TRS)
• Act of May 27, 1995, 74th Leg., R.S., ch. 260, § 35, 1995 Tex. Sess. Law Serv. 2207
• 29 U.S.C. § 623 (Age Discrimination in Employment Act)

Cases (equal-protection scrutiny tiers and the ADEA footnote):

• Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265 (1978)
• Lalli v. Lalli, 439 U.S. 259 (1978)
• Craig v. Boren, 429 U.S. 190 (1976)
• Johnson v. Robison, 415 U.S. 361 (1974)
• Shapiro v. Thompson, 394 U.S. 618 (1969)
• Griswold v. Connecticut, 381 U.S. 479 (1965)
• Reynolds v. Sims, 377 U.S. 533 (1964)
• Griffin v. Illinois, 351 U.S. 12 (1956)
• San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1 (1973)
• Hazen Paper Co. v. Biggins, 113 S. Ct. 1701 (1993)
• McKennon v. Nashville Banner Publishing Co., 115 S. Ct. 879 (1995)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0417
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1996/dm0417.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

Office of the Attorney General
State of Texas

DAN MORALES
ATTORNEY GENERAL

September 23, 1996

The Honorable Barry Telford
Chair
Committee on Pensions & Investments
Texas House of Representatives
P.O. Box 2910
Austin, Texas 78768-2910

Opinion No. DM-417

Re: Whether Government Code section 822.201(c) constitutionally excludes from salary and wages, for purposes of determining member contributions to and computation of benefits from the Teacher Retirement System, "payments received . . . for teaching a driver education and traffic safety course" (RQ-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 contributions to and benefits from the Teacher Retirement System, payments the teacher received for teaching a driver education and traffic safety course. You question the constitutionality of this amendment. Although 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 regular salary, 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 analyze whether the amendment violates the fourteenth amendment to the United States Constitution by distinguishing after-school driver education teachers from 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 Government Code, subtitle C, of which section 822.201 (the section about which you ask) is a part. Title 8, subtitle C establishes the Teacher Retirement System of Texas, see Gov't Code § 821.003; see also Tex. Const. art. XVI, § 67(b)(1), and provides that every employee of the public school system shall be a member, Gov't Code § 822.001(a)(2), (b). In certain circumstances not relevant here, an employee may be excepted from the membership requirement. Id. § 822.002(a).[1]

Section 822.201(a) of the Government Code provides in general that only a member's salary and wages for service are subject to report and deduction for member contributions. Likewise, only a member's salary and wages are credited in benefit computations. Gov't Code § 822.201(a)(1). 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 performed;

 (2) amounts by which the member's salary is reduced under a salary reduction agreement authorized by [Government Code section 610.021]; and

 (3) amounts that would otherwise qualify 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 finance payments to a deferred compensation or tax sheltered annuity program . . . or to finance benefit options under a cafeteria plan . . . .

Id. § 822.201(b). The statute expressly excludes from salary and wages

 expense payments, allowances, and payments for unused vacation or sick leave, maintenance or other nonmonetary compensation, fringe benefits, deferred compensation other than as provided by Subsection (b)(3), compensation that is not made pursuant to a valid employment agreement, payments received in the 1995-1996 or a subsequent school year for teaching a driver education and traffic safety course, and any compensation not described in Subsection (b).

Id. § 822.201(c) (emphasis added). The Seventy-fourth Legislature amended section 822.201(c) by adding the italicized language. See Act of May 27, 1995, 74th Leg., R.S., ch. 260, § 35, 1995 Tex. Sess. Law Serv. 2207, 2487.

The conference committee on the bill, Senate Bill 1, added the amendment to section 822.201(c). No comments were made on the floor of the House or Senate or in any written materials regarding the amendment. We are, as a consequence, uncertain as to the problem the legislature was seeking to remedy by the amendment.

Although you do not specifically ask us to construe the amendment, we believe it is a necessary preface to considering the constitutionality of the amendment. We hypothesize that a public school may employ different types of driver training teachers. The first type teaches driver education during the regular school day, and the teacher's regular salary compensates him or her for teaching driver training, possibly among other subjects or tasks. See Educ. Code § 29.902 (requiring Texas Education Agency to establish program of instruction in driver education and traffic safety for public school students); 19 T.A.C. §§ 75.121 (setting standards for driver education classroom and in-car instruction), .312 (establishing requirements for teacher certification in driver education). The teacher does not receive a payment, supplemental to his or her annual salary, for teaching driver training, but teaches driver training pursuant to his or her written, regular contract 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 training teacher may teach subjects other than driver training during the day, but teaches driver education after school and during the summers. 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.

The legislature directs that every part of a statute is to be effective, if the statute can be so construed. Gov't Code § 311.021(2). A court must attempt to construe a statute as a whole, harmonizing the statute in its entirety. 67 TEX. JUR. 3D Statutes § 125, at 715-17 (1989). Accordingly, 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 membership in the Teacher Retirement System includes all employees of the public school system (assuming the employee is not excepted under section 822.002(a)). An employee who teaches driver training is not explicitly excluded. Consequently, an employee of a school district who teaches driver training whose salary compensates him or her for teaching driver training must be a member of the Teacher Retirement System, assuming the teacher otherwise qualifies. That teacher's salary and wages, which compensate the teacher, at least in part, for teaching driver training, are salary and wages subject to report and deduction for member contributions and to credit in benefit computations.

Nevertheless, we believe that the legislature intended to distinguish between salary a teacher receives to compensate the teacher for teaching driver training during the regular school day, pursuant to a regular contract, from a payment another teacher receives, in addition to the teacher's regular salary, probably pursuant to a supplemental contract independent of the regular contract. The latter teacher remains a member of the Teacher Retirement System, with the teacher's contributions and benefits premised 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 contribute to and compute benefits from the Teacher Retirement System, however.

By construing the phrase "payments received . . . for teaching a driver education and traffic safety course" in section 822.201(c) to apply only to payments received in addition to regular salary, we believe it describes an exclusion from salary and wages that is similar to the other items section 822.201(c) explicitly excludes from salary and wages. For example, expense payments, allowances, and fringe benefits all are payments a school district employee receives in addition to his or her regular salary. Conversely, if we construed 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 contract, the phrase "payments received . . . for teaching a driver education and traffic safety course" would describe an exclusion much different from the other items expressly excluded from salary and wages.

Additionally, this conclusion is consistent with the legislature's choice of language in the 1995 amendment. In particular, we note that the legislature described the compensation received for teaching driver training as a "payment." Some of the other payments referred to in section 822.201(c) are described as "compensation." The term "compensation" encompasses salary and benefits. See Attorney General Opinion JM-39 (1983) at 3; Letter Opinion 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 training and a payment a teacher receives, in addition to his or her salary, for teaching driver training. See also 37 T.A.C. § 25.21 (excluding various supplemental payments from annual compensation for purposes of Teacher Retirement System).

Having construed the 1995 amendment to section 822.201(c) of the Government Code, we turn to your question regarding the constitutionality of the amendment. 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." Because you state that the amendment appears to "discriminate" in teacher retirement system benefits because of course content, we understand your Fourteenth Amendment concern to be directed to the Equal Protection Clause.

In Attorney General Opinion JM-401 (1985), this office discussed the proper standard to be used when considering whether a particular statute complies with the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution:

 In reviewing legislation under the equal protection clause of the Fourteenth Amendment, the United States Supreme Court usually has used two primary standards. If a challenged law burdens an inherently "suspect" class of persons or impinges on a "fundamental" constitutional right, the law will be struck down unless the state demonstrates that the law is justified by a compelling need. If a suspect class or fundamental right is not involved, the law will be upheld unless the challenger can show that the classification bears no rational relationship to a legitimate state purpose or objective. . . . On a few occasions, the court also has utilized an intermediate test which asks whether the challenged law furthers a substantial interest of the state.

Id. at 3-4 (citations omitted).

A teacher who receives payments, over and above the teacher's salary, for teaching driver training is not a member of a suspect class.[6] See Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 306 (1978) (race and ethnic origin). Such a teacher also is not a member of a classification warranting an intermediate level of scrutiny. See Lalli v. Lalli, 439 U.S. 259, 265 (1978) (illegitimacy); Craig v. Boren, 429 U.S. 190, 197 (1976) (gender). In addition, assuming the contribution to and receipt of benefits from a retirement system is a "right" at all, the inclusion of a payment for teaching driver training classes in the calculation of such contributions and benefits is not a fundamental right. See, e.g., Johnson v. Robison, 415 U.S. 361, 375 n.14 (1974) (free exercise of religion); Shapiro v. Thompson, 394 U.S. 618, 630 (1969) (interstate travel); Griswold v. Connecticut, 381 U.S. 479, 482 (1965) (privacy); Reynolds v. Sims, 377 U.S. 533, 561-62 (1964) (suffrage); Griffin v. Illinois, 351 U.S. 12, 17 (1956) (access to courts). See generally San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 33 (1973) (determination of whether something is a fundamental right lies in assessing whether the Constitution explicitly or implicitly guarantees it). Accordingly, a court would apply the rational basis test to determine whether the amendment to section 822.201(c) is constitutional.

Under that test, a court would uphold the amendment unless a challenger to the statute shows that the classification bears no rational relationship to a legitimate state purpose or objective. We have been unable to ascertain the legislative purpose for this amendment. We are further unable to determine why the legislature chose to distinguish between a teacher who receives a payment, in addition to his or her regular salary, for teaching driver training and a teacher who may receive a supplemental payment for other, nonsalaried, school-related work he or she performs, for example, coaching, sponsoring a club, driving a bus, or directing the school play.

In any event, whether there is a legitimate state purpose or objective for excluding a payment received outside of a teacher's regular salary for teaching driver training classes from the salary used to calculate a member's contributions to and benefits from the Teacher Retirement System, as the amendment to section 822.201(c) does, while not excluding similar payments a teacher receives for performing other extra-curricular functions, is a fact question that is inappropriate to the opinion process. See, e.g., Attorney General Opinions DM-337 (1995) at 7, DM-98 (1992) at 3, H-56 (1973) at 3. Whether the amendment reasonably relates to that purpose is a fact question that cannot be resolved in the opinion process.

                          SUMMARY

      Section 822.201(c) of the Government Code, which, among other things, excludes from compensation that may be used to contribute to and calculate benefits from the Teacher Retirement System "payments received . . . for teaching a driver education and traffic safety course," applies only to payments a driver training teacher receives for teaching driver training in addition to the teacher's regular salary, perhaps pursuant to a supplemental, independent contract.

      Whether there is a legitimate state purpose for excluding a payment received outside of a teacher's regular salary for teaching driver training classes from the salary used to calculate a member's contributions to and benefits from the Teacher Retirement System, as the amendment to section 822.201(c) does, while not excluding similar payments a teacher receives for performing other extra-curricular functions, is a fact question. Likewise, whether section 822.201(c) actually relates to that purpose is a fact question.

                                           Very truly yours,

                                           DAN MORALES
                                           Attorney General of Texas

JORGE VEGA
First Assistant Attorney General

Selected footnotes (best-effort transcription; the linked PDF is authoritative):

[1] An employee is excepted from the membership requirement if the employee has executed and filed a waiver, participates in an optional retirement program, or is employed by a public institution of higher education that as a condition of employment requires the employee to be enrolled as a student at the institution; or if the employee's sole employment is as a noncertified instructor in a theology program.

The opinion also noted, in a footnote, that supplemental or terminal pay arrangements for teachers may be subject to manipulation, and that the laws have recognized this potential and have provided safeguards against it. See Tex. Gov't Code Ann. § 825.210.

[6] This footnote discussed the federal Age Discrimination in Employment Act (the "ADEA"), 29 U.S.C. ch. 14. The ADEA prohibits an employer from discriminating against any individual because of the individual's age, 29 U.S.C. § 623(a)(1), but does not forbid an employer to distinguish on the basis of age where the distinction is based on reasonable factors other than age, id. § 623(f)(1), and it restricts age-based reductions in employee benefit plans, id. § 623(i)(1)(A), (B); see id. § 623(i). The office stated that it need not address whether the classification of a driver training teacher rests on the basis of age, and that, if the amendment did distinguish among teachers on the apparent basis of age, whether the legislature relied on a reasonable factor other than age was a fact question. See 29 U.S.C. § 623(f)(1); Hazen Paper Co. v. Biggins, 113 S. Ct. 1701, 1705 (1993); cf. McKennon v. Nashville Banner Publishing Co., 115 S. Ct. 879 (1995). The resolution of these questions turns on facts, the determination of which is inappropriate to the opinion process. See, e.g., Attorney General Opinions DM-337 (1995) at 7, DM-98 (1992) at 3, H-56 (1973) at 3.