Untitled Texas Attorney General Opinion ( 1983 )

The Attorney General of Texas
August 4, 1983
JIM MATTOX
Attorney General
Supreme Court Building
Honorable Carl A. Parker Opinion No. JM-53
P. 0. Box 12548 Chairman
Austin, TX. 78711. 2548 Committee on Education Re: Whether union dues and
5121475-2501 Texas State Senate other payroll deductions con-
Telex 910/874-1367 P. 0. Box 12068, Capitol Station stitute an "indebtedness" under
Telecopier 5121475-0266
Austin, Texas 78711 section 2.07 of the Education
Code
1607 Main St.. Suite 1400
Dallas. TX. 75201.4709 Dear Senator Parker:
2141742.6944
You have requested our opinion regarding certain payroll
4624 Alberta Ave.. Suite 160 deductions for a married employee of an independent school district.
El Paso, TX. 79905.2793 Specifically, you ask whether section 2.07 of the Texas Education Code
9151533.3464 requires consent of the married employee's spouse for the following
P
types of deductions:
20 Dallas Ave.. Suite 202
Houston, TX. 77002-6966 1. payment of dues to a union or other
7131650-0666 employee organization;
2. payment of a donation to a charitable
606 Broadway. Suite 312
Lubbock. TX. 79401-3479
organization;
8061747-5236
3. payment of installments on a loan from a
financial institution; or
4309 N. Tenth. Suite S
McAllen, TX. 76501-1665
5121682.4547
4. payment of the premiums on an insurance
policy.
200 Main Plaza. Suite 400 Section 2.07 of the Education Code, formerly article 2883a.
San Antonio. TX. 78205.2797
V.T.C.S., provides in pertinent part that:
5121225.4191
(b) Any teacher's or school employee's
An Equal Opportunity/ assignment, pledge, or transfer of his [or her]
Affirmative Action Employer salary or wages as security for indebtedness -- or
any interest or part of his [or her] salary or
wages -- then due or which may become due under an
existing contract of employment shall be
enforceable only under the following conditions:
. . . .
p. 220
Honorable Carl A. Parker - Page 2 (JM-53)
(2) Any assignment, pledge, or transfer must
be in writing and acknowledged as required for the
acknowledgment of deeds or other recorded
instruments, and if executed by a married person,
it must also be executed and acknowledged in a
like manner by his or her spouse;. . . and
(3) An assignment, pledge, or transfer shall
be enforceable only to the extent that the
indebtedness it secures is a valid and enforceable
obligation. (Emphasis added).
This section authorizes salary or wage deductions "as security for
indebtedness, that is, to pay an obligation to a third party" which is
both valid and enforceable. Attorney General Opinion MW-566 (1982).
Therefore, your question is, in essence, whether deductions of the
type listed above are valid and enforceable obligations, i.e.,
"indebtedness," and thus require consent of the employee's spouse.
Indebtedness has been characterized as "that for which an action
of debt would lie; a sum of money due by certain and express
agreement.'I Merriman V. Swift and Company. 204 S.W. 775, 776 (Tex.
Civ. App. - Fort Worth 1918, writ ref'd). Article 3.53, section 2B(2)
of the Insurance Code defines indebtedness as "the total amount
payable by a debtor to a creditor in connection with a loan or other
credit transaction." The Debt Collection Practices Act defines "debt"
as "any obligation or alleged obligation arising out of a consumer
transaction." V.T.C.S. art. 5069-11.01. Black's Law Dictionary, 5th
edition, defines "debt" as a "specified sum of money owing to one
person from another, including not only obligation of debtor to pay
but right of creditor to receive and enforce payment," (citing State
v. Ducey, 266 N.E.2d 233, 235 (Ohio Ct. App. 1970)). It is clear,
then. that in order for there to be an "indebtednessuthere must be an
obligation, legally enforceable against the debtor, to pay a
determinable sum of money. With this in mind, we shall examine each
of the deductions about which you inquire.
This office has recognized the authority of school district
employees to approve and school districts to deduct union dues
checkoffs and hospitalization plan premiums. Attorney General
Opinions M-613 (1970); o-4033, O-3474 (1941); O-2141 (1940). This
office has also determined that section 2.07 was not impliedly
repealed by section 5.22 of the Texas Family Code which provides that
personal earnings are within the sole management of each spouse.
Attorney General Opinion MW-485 (1982). These opinions, however, do
not address the issue of indebtedness and their silence on this matter
is not to be construed as a tacit conclusion that such deductions
constitute indebtedness. On the contrary, this office has recognized
p. 221
Honorable Carl A. Parker - Page 3 (JM-53)
that such deductions are voluntary in nature and impose no obligation
on either employee or employer:
The proposed plan imposes no financial obligation
,on the part of the district. The teachers would
enter the plan on a purely voluntary basis, and we
see no reason why the teachers may not authorize
the district to make deductions from their
salaries. . . As we have mentioned above,
narticioation in the elan is ourelv voluntary:
iherefore, the teachers could withdraw both their
membership in the plan and their authorization to
the district to make deductions at any time.
(Emphasis added).
Attorney General Opinion O-4033 (1941). Furthermore, the Texas
Right-To-Work Law, article 5207a, V.T.C.S., and article 5154~ (as
applied to public employees) protect the right of all persons to
accept or decline membership in labor unions. Lunsford v. City of
Bryan, 297 S.W.2d 115, 116 (Tex. 1957). Accordingly, we conclude
that, since checkoff authorizations for school district employees are
voluntary and revocable at will, it follows that consent of married
,- employees' spouses to union dues deductions is not required by section
2.07 of the Education Code.
Donations to charitable organizations deducted from salary or
wages likewise need not receive approval of the married employee's
spouse. Charitable donations are similar to union dues in that the
employee undertakes no enforceable obligation to pay any sum; rather,
the deduction system serves as an alternate method of donation that
the employee may exercise at his or her discretion. As with dues
checkoffs, the purpose of charitable deductions is to provide
employee, employer, and charitable organization with a simple,
efficient method of transferring funds. The essential requisites for
a charitable donation or gift are (1) capacity of the donor, (2)
intention of the donor to make a gift, (3) completed delivery of the
gift to or for the donee, and (4) acceptance of the gift by the donee.
In re Greenberg's Will, 286 N.Y.S. 56, 58 (N.Y. Surrogate's Ct. 1936),
Black's Law Dictionary 619 (5th ed. 1979). Moreover, a valid donation
requires the donor to divest himself or herself of title and control
of the gift without expectation of its return. Walker v. Commissioner
of Internal Revenue, 91 F.2d 297, 298 (5th Cir. 1937). A charitable
deduction, therefore, does not become a donation until it has been
transferred to the particular charity. The authorization for such a
deduction does not amount to an enforceable obligation and may be
terminated by the employee at any time. Consequently, such deductions
do not constitute indebtedness within the purview of section 2.07.
”
p. 222
Honorable Carl A. Parker - Page 4 (JM-53)
Deductions for payments of installments on loans and insurance
premiums are more likely to be categorized as indebtedness, for either
may arise in connection-with a credit or consumer transaction. See
Ins. Code art. 3.53, §2B(5); V.T.C.S. art. 5069-11.01. However, the
amount of indebtedness, if any, and method of repayment are fact
determinations, dependent upon the terms of each contract. Absent
more specific information concerning such deductions, we cannot
categorically conclude that they constitute indebtedness as required
by section 2.07.
SUMMARY
Section 2.07 of the Texas Education Code
requires a married employee to obtain his or her
spouse's consent for salary deductions only when
such deductions are offered as security for a
valid and enforceable obligation. Deductions for
dues and charitable donations do not require
spouse's consent. Deductions for loan payments
and insurance premiums may constitute indebtedness
but such a determination is dependent upon the
terms of individual contracts.
Very truly yours
J 4 /I*
JIM MATTOX
Attorney General of Texas
TOM GREEN
First Assistant Attorney General
DAVID R. RICHARDS
Executive Assistant Attorney General
Prepared by Rick Gilpin
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Rick Gilpin, Acting Chairman
Jon Bible
David Brooks
Colin Carl
Jim Moellinger
Nancy Sutton
p. 223