Untitled Texas Attorney General Opinion ( 2010 )

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
June 29, 2010
Mr. Robert Scott Opinion No. GA-0785
Commissioner of Education
Texas Education Agency Re: Effect of recent amendmentto section 21.402
1701 North Congress Avenue of the Education Code on salaries paid to school
Austin, Texas 78701-1494 district employees (RQ-0855-GA)
Dear Commissioner Scott:
You ask about the effect of certain provisions contained in House Bill 3646, which was
adopted during the Eighty-first Legislative Session, on the salaries of teachers and other school
district employees.' Specifically, your questions involve the salaries that school districts must pay
during the 2010-2011 school year. Request Letter at I.
Education Code section 21.402(a) sets out the formula for the minimum monthly salaries that
a school district must pay classroom teachers and certain other employees ("educators"). See TEx.
Enuc. CODE ANN. § 21.402(a) (Vernon Supp. 2009). House Bill 3646 added subsections (c-l) and
(c-2)to Education Code section 21.402. See id § 21.402(c-l)-(c-2); Act ofJune 1,2009, 81stLeg.,
R.S., ch. 1328, § 9, 2009 Tex. Gen. Laws 4173, 4175-76. Subsection (c-l), which provides for a
salary increase, states as follows:
(c-l) Notwithstanding Subsection (a), for the 2009-2010 and
2010-2011 school years, each school district shall increase the
monthly salary of each classroom teacher . . . [and certain other
employees1by the greater of:
(I) $80; or
(2) [an amount determined using a designated formulaJ?
lRequest Letter at I (available at http://www.texasattomeygeneral.gov).
'Subsection (c-I )(2) provides as follows:
[T]he maximum uniform amount that, when combined with any resulting increases
in the amount of contributions made by the district for social security coverage for
(continued ...)
Commissioner Robert Scott - Page 2 (GA-0785)
TEx. EDUC. CODE ANN. § 21.402(c-l) (Vernon Supp. 2009). Subsection (c-2) provides that:
(c-2) An increase in salary under Subsection (c-l) does not include:
(1) any amount an employee would have received for the
2009-2010 or 2010-2011 school year, as applicable, under the
district's salary schedule for the 2008-2009 school year, if that
schedule had been in effect for the 2009-2010 or 2010-2011 school
year, including any local supplement and any money representing a
career ladder supplement the employee would have received in the
2009-2010 or 2010-2011 school year; or
(2) any part of the salary to which an employee is entitled
under Subsection (a).
fd. § 21.402(c-2). Pursuant to subsection (c-2)(I), the subsection (c-l) salary increase is an amount
additional to the amount an educator would receive under a district salary schedule.
You state that "[sJchool districts generally adopt local salary schedules, which may pay
educators amounts greater than the minimum requirements of Section 21.402 of the Education
Code." See Request Letter at 2 n.4. "Many local salary schedules include annual 'steps' that
recognize additional years of experience with a salary increase." fd. You note that if the local salary
schedule for 2008-2009 included such increases for additional years of experience, subsection (c-2)
would result in eligible educators receiving the increase provided for in the 2008-2009 local salary
schedule during the 2009-2010 school year.' !d. at 2. Such an increase would be in addition to the
amount required by subsection (c-l), i.e., the greater of $80 or the amount determined using the
designated formula. fd. You point out that section 99 of House Bill 3646 provides that "[sJection
21.402(c-l) Education Code, as added by this Act, is not intended to require an increase in the
second year of the biennium beginning September 1, 2009." fd. at 3 (quoting Act of June 1,2009,
81st Leg., R.S., ch. 1328, § 99, 2009 Tex. Gen. Laws 4173, 4212). In connection with section 99,
you ask about the appropriate application of subsection (c-2) in the 2010-2011 school year. fd.
at 4. You base your question on the following assumed facts:
'( ... continued)
the specified employees or by the district on behalf of the specified employees
under Section 825.405, Govenunent Code, may be provided using an amount equal
to the product of $60 multiplied by the number of students in weighted average
daily attendance in the school during the 2009-20 I 0 school year.
TEx. EDUC. CODE ANN. § 21.402(c-l)(2) (Vernon Supp. 2009).
'Subsection (c-2) prevents a school district from reducing the local salary supplement it provided in 2008-2009.
See generally Weslaco Fed'n of Teachers v. Tex. Educ. Agency, 27 S.W.3d 258, 261--{i2 (Tex. App.-Austin 2000, no
pet.) (addressing school district's reduction of prior school year's local salary supplement, where no statute prohibited
this action).
Commissioner Robert Scott - Page 3 (GA-0785)
An educator with five years of experience was paid $4,000 a month during
the 2008-2009 school year.
The district's 2008-2009 local salary schedule required the payment of an
additional $100 per month for each of a sixth and seventh year of experience.
The district's subsection (c-l) increase is $80 per month.
The educator is entitled to a salary of$4180 per month during the 2009-2010
school year pursuant to subsections 21.402(c-l) and (c-2).
See id.
When the assumed facts are applied to your question, you ask whether the educator, who
works in a school district that adopted a local salary schedule for the 2008-2009 school year that
would require a $100 per month salary increase for a seventh year of experience, would be entitled
to the $100 per month local salary increase to $4280 per month pursuant to subsection 21.402(c-2)
during the 2010-2011 school year.' Id. We look first to the language of subsection (c-2) to answer
your question, and "[i]f the statute's language is unambiguous, its plain meaning will prevail."
Leland v. Brandal, 257 S.W.3d 204, 206 (Tex. 2008).
Subsection (c-2), in providing that the subsection (c-l) increase does not include "any amount
an employee would have received for the 2009-2010 or 20 10-20 11 school year, as applicable, under
the district's salary schedule for the 2008-2009 school year, if that schedule had been in effect for
the 2009-2010 or 20 I 0-20 II school year," continues a district's 2008-2009 salary schedule in effect
for the 2009-2010 and 2010-2011 school years. TEx. EDUC. CODE ANN. § 21.402(c-2) (Vernon
Supp. 2009). According to a plain reading of subsection (c-2), an educator subject to section
21.402(a) would receive in the 20 I 0-20 II school year the amount provided by subsection (c-I) plus
the amount he or she would receive under the 2008-2009 local salary schedule if it were in effect
for the 20 I 0-20 II school year, including any local supplement and any money representing a career
ladder supplement for that school year. See id. § 21.402(c-l)--(c-2). The educator in your example
who was paid in the 2008-2009 school year as someone with five years' experience would have six
years' experience in 2009-2010 and seven years' experience in 2010-2011. The educator would
thus be entitled in 2010-2011 to the further $100 step increase provided by the 2008-2009 salary
schedule you have described. Thus, the educator's monthly salary in the 2010-20 II school year
would be $4280.
As your second question, you ask "whether an educator would be entitled to a step increase
in 2010-2011 if the district's local salary schedule provides a step increase in that year, but did not
do so in the 2009-2010 school year." Request Letter at 4. Subsection 21.402(c-2) provides that a
'You also state this question as follows: "If a school district adopted a local salary schedule for the 2008-2009
school year that would provide a salary increase for an educator during the 2010-20 II school year if applied during that
school year, is an educator entitled to that increase during the 20 I 0-2011 school year?" Request Letter at 4.
Commissioner Robert Scott - Page 4 (GA-0785)
school district's "salary schedule for the 2008-2009 school year" applies to educators' salaries in
the "2009-2010 or 2010-2011 school year, as applicable." TEx. EDUC. CODE ANN. § 21.402(c-2)
(Vernon SUpp. 2009). As we have shown in answer to your first question, pursuant to subsection
(c-2), the terms of the 2008-2009 salary schedule determine whether a particular educator should
receive a salary increase based on years of experience in 2009-2010 or 2010-2011. See id. If the
2008-2009 salary schedule provides an increase in the 2010-2011 school year for a particular
educator, the plain language of subsection (c-2) entitles him or her to that salary increase, even ifthe
salary schedule did not provide such an increase for the educator in the 2009-2010 school year. See
id.
You raise section 99 of House Bill 3646, which provides that "[s]ection 21.402(c-l),
Education Code, as added by this Act, is not intended to require an increase in the second year of the
biennium beginning September 1,2009." Act ofJune 1,2009, 81st Leg., RS., ch. 1328, § 99, 2009
Tex. Gen. Laws 4173, 4212. You state that "[s]ection 99 precludes a second, additional application
of the subsection 21.402(c-l) increase during the 2010-2011 school year." Request Letter at 3. You
are, however, concerned that section 99 "is unclear as to whether an educator is entitled to an
additional 'step' during the 2010-2011 school year, if such an additional pay increase was included
in the district's 2008-2009 local salary schedule." Id. In relation to this issue, you quote an
exchange on the House Floor between Representative Hochberg, the bill's sponsor,s and
Representative Giddings about House Bill 3646. See id. Representative Giddings stated that "[ f]rom
my discussion with you, there is nothing in the bill that mandates the district to give a step increase
the second year. They just have to maintain the increase that they've given in the first year."
H.J. OF TEx., 81st Leg., RS. 6812 (2009). Representative Hochberg agreed and said that any
question about particular words could be handled in a technical correction. Id. House Concurrent
Resolution 290, correcting technical and typographical errors in House Bill 3646, was adopted soon
after this discussion. 6 Section 99 was also included in House Concurrent Resolution 290. See Tex.
H.R Con. Res. 290, 81st Leg., RS., 2009 Tex. Gen. Laws 5652.
You state that section 99 "is unclear as to whether an educator is entitled to an additional
'step' during the 2010-2011 school year, if such an additional pay increase was included in the
district's 2008-2009 local salary schedule." Request Letter at 3. We look first to the language of
section 99 to determine its meaning. See First Am. Title Ins. Co. v. Combs, 258 S.W.3d 627, 631
(Tex. 2008) (stating that "[w ]hen interpreting a statute, the courts look first and foremostto the plain
meaning of the words used''). The Code Construction Act provides that "[i]n construing a statute,
whether or not the statute is considered ambiguous on its face, a court may consider among other
matters" the legislative history. TEx. GOV'T CODE ANN. § 311.023(3) (Vernon 2005). The Texas
Supreme Court has directed, however, that "if a statute is unambiguous, rules of construction or
'See H.J. OF TEx., Slst Leg., R.S. 794 (2009).
'The discussion between Representative Giddings and Representative Hochberg took place on May 31, 2009,
and House Concurrent Resolution 290 was adopted on June I, 2009. See H.J. OF TEx., Slst Leg., R.S. 6S12, 6S12-13,
6956-57 (2009).
Commissioner Robert Scott - Page 5 (GA-0785)
other extrinsic aids cannot be used to create ambiguity." Fitzgerald v. Advanced Spine Fixation Sys..
Inc., 996 S.W.2d 864, 865--66 (Tex. 1999).
Section 99 expressly clarifies "[s]ection 21.402(c-l) Education Code, as added by" House
Bill 3646, but it does not mention subsection (c-2). See Act of June 1,2009, 81st Leg., R.S., ch.
1328, § 99,2009 Tex. Gen. Laws 4173,4212. When we look to the plain meaning of the words used
in section 99, we cannot read this section as applying to subsection (c-2). A court must presume that
the Legislature chose every word of a statute for a purpose and excluded every word that has been
excluded for a purpose. See Laidlaw Waste Sys. (Dallas), Inc. v. City a/Wilmer, 904 S.W.2d 656,
659 (Tex. 1995) (quoting Cameron v. Terrell & Garrett, Inc., 618 S.W.2d 535, 540 (Tex. 1981)).
We do not find any other provision of House Bill 3646 that changes the plain meaning of section
21.402(c-2). Accordingly, in the 2010-2011 school year, an educator would receive pursuant to
subsection (c-2) the amount he or she would receive under the 2008-2009 local salary schedule as
ifthat schedule were in effect for the 2010-2011 school year, including any local supplement and
any money representing a career ladder supplement for that school year. Section 99 does not change
this conclusion.
You finally inquire about the amount a district is required to pay an educator with seven
years' experience hired by the district for the first time during the 2010-2011 school year. Request
Letter at 4. This question is based on the same assumed facts as your first question, specifically that
(I) an educator with five years of experience was paid $4,000 a month during the 2008-2009 school
year, (2) the district's 2008-2009 local salary schedule requires the payment of an additional $100
per month for each ofa sixth and seventh year of experience, and (3) the district's subsection (c-l)
increase is $80 a month. See id Given these assumed facts, you ask which of the three following
monthly salaries the district would be required to pay the educator hired for the first time during the
2010-2011 school years: (1) "$4280 (2008-2009 salary schedule applied in 2010-2011)," (2)
"$4180 (2008-2009 salary schedule applied in 2010-2011 but constrained to not provide an
additional step in that year)," or (3) "the state minimum salary plus $80 (the 2008-2009 salary
schedule has no effect after the 2009-2010 school year)?" /d.'
. As we stated in answer to your second question, subsection 21.402(c-2) provides that a
school district's "salary schedule for the 2008-2009 school year" applies to educators' salaries in
the "2009-2010 or 2010-2011 school year, as applicable." TEx. EDUC. CODE ANN. § 21.402(c-2)
(Vemon Supp. 2009). Under the plain language of section 21.402(c-2), the salary schedule for the
2008-2009 school year applies to educators' salaries in the applicable school year, whether it is the
2009-2010 or 2010-2011 school year. See id Accordingly, the district would be required to pay
the educator hired for the first time during the 2010-20 II school year the amount provided by the
district's 2008-2009 salary schedule as if it applied in 2010-2011. On the basis of the facts you
have asked us to assume, the educator will receive a monthly salary of $4280 in the 2010-2011
school year.
'Your list of possible salaries shows that a newly-hired educator is placed on the salary schedule according to
his or her years of experience regardless of the fact that the experience was acquired in another school district.
Commissioner Robert Scott - Page 6 (GA-0785)
SUMMARY
A school district that adopted a local salary schedule in
2008-2009 must compensate an educator subject to Education Code
section 21.402(a) in the 2010-2011 school year in the amount
provided by subsection (c-l) and the amount he or she would receive
under the district's 2008-2009 local salary schedule if it were in
effect for the 20 10-20 11 school year, including any local supplement
and any money representing a career ladder supplement for that
school year. The educator will receive that amount even if the
2008-2009 local salary schedule did not provide him or her a salary
increase in the 2009-2010 school years.
A school district that adopted a local salary schedule in
2008-2009 would be required to pay an educator with seven years'
experience hired for the first time during the 2010-2011 school year
the amount provided by the district's 2008-2009 salary schedule as
if it applied in 2010-2011.
I of Texas
ANDREW WEBER
First Assistant Attorney General
NANCY S. FULLER
Chair, Opinion Committee
Susan L. Garrison
Assistant Attorney General, Opinion Committee