Honorable Ernestine V. Glossbrenner Opinion No. JM-1051
Chairman
public Education Committee Re: A school district's
Texas House of Representatives use of local funds for
P. 0. Box 2910 career ladder payments
Capitol Building, Room 302D (RQ-1687)
Austin, Texas 78768-2910
Dear Ms. Glossbrenner:
You ask:
If the state allotment designated for
support of the career ladder (Section 16.158,
Education Code) will not fully fund the
career ladder supplements, can a school
district use monies generated locally to
allow the school district to meet the
payments for career ladder levels 2, 3~, and 4
of $2,000, ~$4,000, and ,$6,000 respectively
(Section 16.057, Education Code), without
implementing stricter local performance cri-
teria?
Chapter 13, subchapter E, of the Education Code pro-
vides for the assignment of each public school teacher to
one of four career ladder levels based on performance,
experience, job-related education, advanced academic
training and job assignments. Section 16.057 provides for
the supplementing of salaries of teachers at career ladder
levels two through four as follows:
(a) Except as provided by Subsection (c)
of this section, each teacher on level two,
three, or four of a career ladder is entitled
to the following annual supplement in
addition to the minimum salary set by this
subchapter:
Level 2 . . . . . . . . . . $2,000
Level 3 . . . . . . . . . . $4,000
Honorable Ernestine V. Glossbrenner - Page 2 (JM-1051)
Level 4 . . . . . . . . . . $6,000
(b) If the district pays more than the
state minimum salary prescribed by this
subchapter, the teacher is entitled to the
career ladder supplements in addition to the
amount otherwise paid by the district for the
teacher's step.
(cl If the allotment under Section 16.158
of this code that is designated for support
of the career ladder will not fully fund the
supplements under this section:
(1) the district may reduce the
supplements to not less than the
following:
Level 2 . . . . . . . . . . $1,500
Level 3 . . . . . . . . . . $3,000
Level 4 . . . . . . . . . . $4,500
or;
(2) provide for stricter performance
criteria than that provided under Section
13.302 of this code, subject to the
approval of,the State Board of Education:
or
(3) take action under both Subdivi-
sions (1) and (2) of this subsection.
Section 16.158 provides for q'allotments" to fund the
career ladder supplements as follows:
(a) Each district is entitled to an al-
lotment for education improvement and support
of the career ladder equal to its unadjusted
average daily attendance multiplied by the
following amount or a greater amount provided
by appropriation:
(1) $100 for the 1984-1985 school
year:
(2) $120 for the 1985-1986 school
year: and
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Honorable Ernestine V. Glossbrenner - Page 3 (JM-1051)
(3) $140 for the 1986-1987 school
year and each school year thereafter.
(b) A district may expend 25 percent of
the allotment for any legal purpose, shall
expend 25 percent of the allotment for
payment of salaries for personnel other than
classroom teachers, and shall expend 50
percent of the allotment for career ladder
salary supplements.
(b-l) Expired.
(c) From the funds designated for that
purpose, the, ,district shall supplement the
salary of each teacher above level one on the
career ladder. The district shall decide the
amount of supplement to be provided at each
career ladder level.
(d) Money received under this section may
not be used to supplement the salary of an
employee for directing cocurricular or extra-
curricular activities.
The funding of the career ladder supplements is a part
of the Foundation School Program established under chapter
16 of the Education Code. The purpose of the Foundation
School Program is to "guarantee that each school district in
the state has 'adequate resources to provide each eligible
student a basic instructional program suitable to his
educational needs." Educ. Code 5 16.002. Section 16.051
provides that in order to receive financial support from the
Foundation School Fund, school districts must comply with
the standards set out in subchapter B of chapter 16
including the provisions of section 16.057, quoted above,
providing for career ladder supplements.
In your question; in which you ask about courses of
action available to a school district where the "state
allotment designated for support of the career ladder
(Section 16.158, Education Code) will not fully fund the
career ladder supplements," we presume that by "state
allotment" you mean the 50% of the "allotment for education
improvement and support of the career ladder," which
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Honorable Ernestine V. Glossbrenner - Page 4 (JM-1051)
subsection (b) of section 16.158 provides shall be expended
for career ladder supplements.1
Section 16.057(a) sets out specific dollar amounts to
which teachers at career ladder levels two, three, and four
are entitled. We understand you to ask whether section
16.057(c), quoted above, provides the exclusive alternatives
available to a district when the section 16.158 allotment
is insufficient to pay the supplements or whether a district
may use other available funds to pay the salary supplements.
We do not think that subsection (c) was intended to prohibit
a district from paying the supplements out of other
available funds.
Subsection (a) states that teachers are entitled to
specific supplement amounts except in the instance of an
insufficient allotment. Subsection (c) provides for
reduced supplement amounts and for stricter performance
criteria for supplement eligibility. We read the reference
to the insufficiency of the allotment as a prerequisite to
the availability of the alternatives set out in subsection
Cc)- In other words, we think that the express meaning of
subsections (a) and (c) is that a district is without
authority, other than as provided in subsection (c), to
lower the amount of the supplements or to raise the criteria
for receiving the supplements. We do not find any language
in these provisions that prohibits the use of other
available funds to pay the supplement.
'Several factors support our reading of section
16.057(c). First, nothing else in the controlling statutes
suggests that a district may not use available money other
than allotment money to pay the supplements. Substantially
all of the controlling provisions were enacted as part of
House Bill 72. Acts 1984, 67th Leg., 2d C.S., ch. 28, at
117. The provisions of subsection (c) of section 16.057,
which are in question here, were added to the language of
that bill only after it already contained substantially all
of the other provisions discussed. See Bill file, House
1. See Educ. Code 55 16.251, 16.252, 16.254; see also
Acts 1987, 70th Leg., 2d C.S., ch. 78, art. III, 5 1, at
632.
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Honorable Ernestine V. Glossbrenner - Page 5 (JM-10513
Bill 72, 67th Leg., 2d C.S. (1984).2 If the addition of
subsection (c) were intended to limit the use of other
funds, we think the legislature would have expressed that
intent.
Moreover, we think that construing subsection (c) to
reouire districts, whose allotments are insufficient to meet
the subsection (a) supplements, to either lower the supple-
ment, raise performance criteria, or both, without leaving
them the option of making up the subsection (a) supplement
amounts with non-allotment monies, would be contrary both to
the purpose of the career ladder program, which is~ to
improve teaching quality by providing monetary incentives to
more qualified and better performing teachers, and to the
overall spirit of House Bill 72.
You do not ask and we do not address in detail what
kinds of "monies generated locally" might be lawfully used
to help fund the district's career ladder supplements. We
do note that section 16.253, for example, provides in part
that "local maintenance funds in excess of the amount
assigned to a district may be expended for any lawful school
purpose.1' See also Educ. Code 5 20.48.
A brief 'submitted by the Texas Education Agency3 in
response to your request notes that an administrative rule
adopted~ by the agency, 19 T.A.C. 5 149.71(l)(4), would limit
the use of other available funds for the section 16.057
supplements.
In the event that funds designated as the
allotment for career ladder salary supple-
ments are deemed insufficient for placement
2. Hence, the language in section 16.158(c) providing
in part that "the district shall decide the amount of
supplement to be provided at each career ladder level,"
which language was in both the'original bill as introduced
and in the enacted version, must be read in light of the
later added supplement provisions of section 16.057.
3. The Texas Education Agency is generally referred to
by statute as the Central Education Agency. It includes,
inter alia, the State Board of Education and the State
Commissioner of Education. See, e.a., Educ. Code 5 11.01 &
u.
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Honorable Ernestine V. Glossbrenner - Page 6 (JM-1051)
and/or maintenance of all teachers meeting
the state-mandated minimum criteria for
selection and/or maintenance on the teacher
career ladder, the local district may fund
additional career ladder salary supplements
from local or other funds permitted by law
and State Board of Education rules effective
with the 1985-1986 school year, provided that
the following requirements have been met:
(A) that funds available for any legal
purpose in accordance with the Texas
Education Code, 516.158, have been fully
exhausted in the payment of teacher career
ladder salary supplements; and
(B) that the local school district
demonstrates its intent to utilize career
ladder supplements as a means of identi-
fying and rewarding excellence in teacher
performance as opposed to a salary
supplement for all teachers meeting the
minimum requirements by establishing in
written policy one or more requirements
for stricter performance as specified in
subsection (e) of this section.
Subpart (B) of the provision appears to require that
before local funding may be used to make up a deficiency in
the section 16.158 allotment for the career ladder supple-
ments, a district must establish one 'or more requirements
for stricter performance criteria. See also 19 T.A.C.
5 149.71(e). We think that to the extent that the Texas
Education Agency's'rule makes mandatory the establishment of
stricter performance criteria before local funds can be used
to make up a shortfall in the section 16.158 allotment for
the section 16.057, subsection (a), career ladder supple-
ments, the rule exceeds the agency's rule-making authority.
Agency rules must be within the clear intent of the
statute and not in excess of the powers delegated. See.
e.s., Kellv v. Industrial Accident Bd., 358 S.W:2d 874 (Tex.
Civ. App. - Austin 1962, writ ref'd). We find nothing in
the Education Code or elsewhere in state law which empowers
the Texas Education Agency, or its component body, the State
Board of Education, to require stricter performance criteria
in particular districts or particular local situations. See
Educ. Code ch. 13, subch. D (providing for the establishment
of career ladder appraisal procedures and performance
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Honorable Ernestine V. Glossbrenner - Page 7 (JM-1051)
criteria by the State Board of Education), 55 13.302(a)
(providing that the board shall adopt an appraisal process
and criteria, and the criteria must be based on "observable,
job-related behavior, including teachers' implementation of
discipline management procedures"), 13.302(c) (providing
that the board shall provide for *Iauniform training program
and uniform certification standards for appraisers to be
used throughout the state"), 13.302(d)(l) (providing that
"the assessment process may be administered by or under the
supervision of the Central Education Agency on a statewide
basis"), 13.304-13.312 (providing for uniform performance
categories, classes of teaching certificates, criteria for
entrance into and maintenance of career ladder levels,
without making any distinctions in such classifications or
criteria based on particular local situations). See also
id. 55 11.24 (board's rule-making authority generally),
16.005 (commissioner of education to administer Foundation
School Program in accordance with board rules). Again,
although section 16.057 provides that local districts may
with state board approval implement stricter performance
criteria under the circumstances set out there, we find
nothing in the agency's statutory rule-making authority
empowering the agency to require particular districts to
implement stricter performance criteria before it uses funds
other than the section 16.058 allotment for salary supple-
ments.
Finally, we note that the Texas Administrative Code, 19
T.A.C. 5 149.71(1)(4)(A), requires that local districts
wishing to use local funds to make up the cost of section
16.057(a) career ladder supplements where the section 16.158
allotment for such is insufficient must first exhaust the
portion of the section 16.158 allotment funds available for
"any legal purpose.'* We find nothing in the statutory
scheme governing the career ladder program which authorizes
the Texas Education Agency to thus restrict the use of local
funds and accordingly conclude that the provisions of
subpart (A) also exceed that agency's statutory rule-making
authority.
SUMMARY
In order to meet the cost of career ladder
supplements in the amounts specified in
Education Code section 16.057, subsection
(a), a school district may, without imple-
menting stricter performance criteria under
chapter 13 of the code, use available local
funds where the allotment for the career
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Honorable Ernestine V. Glossbrenner - Page 8 (JM-1051)
ladder under section 16.158 is insufficient.
Rules adopted by the Texas Education Agency,
19 T.A.C. 5 149.71(&)(4)(A)-(B), purporting
to require a school district whose section
16.158 allotment is insufficient to first
exhaust section 16.158 funds available for
"any legal purposetl and to establish stricter
performance criteria before using other local
funds to cover the supplement amounts, exceed
that agency's statutory rule-making author-
ity.
JIM MATTOX
Attorney General of Texas
MARY KELLER
First Assistant Attorney General
LCU MCCREARY
Executive Assistant Attorney General
JUDGE ZOLLIE STEAKLEY
Special Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by William Walker
Assistant Attorney General
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