The Attorney General of Texas
September 11, 1980
MARK WHITE
Attorney General
Willie L. Scott Opinion No. MW-240
Major General, TexARNG
The Adjutant General Re: Whether the pay of a teacher
Adjutant General’s Department may be docked to cover the cost of
Austin, Texas 78783 a stistitute when. he is absent
performing military &ty as a
member of the National Guard or
the armed forces reserves
Dear Mr. Scott:
Ycu indicate that some Texas school districts reduce the pay of
teachers who are absent from teaching &ties to perform Reserve cr
National Guard &ty in a sum equal to the ~amount paid the teachers’
stistitutes for the period of absence. You ask whether this practice is
permissible.
Article 5785, V.T.C.S., provides, in pertinent part:
Sec. 7. (a) All officers and employees of the
State of Texas and of any. . . political subdivision. . .
who shall be members of the State Military Forces, or
members of ly of the Reserve Components of the
Armed For&es, shall be entitled to leave of absence
from their respective duties without lass of.. . salary
on all days duriq which they shall be engaged in
authorized trainb or &ty ordered or authorized by
proper authority, for not to exceed fifteen (15) days in
any one calendar year.
School districts are political stidivisions of this state. Woodson Ind.
School District v. State, 130 S.W. 2d 1038 (Tex. Civ. App. - Eastland 1939,
writ dism’d, judg. corr.); 51 Tex. Jur. 2d Schools SS5,B. Accordingly, public
school teachers are employees of a political s&division and are clearly
governed by article 5785.
Section 18.055 of the Education Code provides that:
(a) A school district must pay each employee who is
qualifi~ed for and employed in a position classified
p. 760
Willie L. Scott - Page Two (MW-240)
under the Texas Public Education Compensation Plan set forth
in Section 16.056 of this chapter not less than the minimum
monthly base salary, plus increments for teaching experience,
specified for the position.
In addition to the minimum monthly base salary specified for the employee’s position
and pay grade, which school districts are obligated to pay, districts may supplement
their employees’ salaries from local revenue sources. An employee’s %alary,”
therefore, is the monthly base salary prescribed in the Public Education Compensation
Plan plus any local supplements provided by the district.
Article 5765 unequivocally provi&s that employees may not lose any salary during
the time they are engaged in military trainhg or duty as specified therein, not to
exceed fifteen days in a calendar year. Article 5765 is to be liberally construed to
effecuate its intended purpcee, which is to prevent public employees who are
performing military obligations from being penalized. Attorney General Opinion C-679
(l966). The net result of a requirement that teachers pay for stistitutes necessitated
by their absence is that the salary provided for in their employment contracts is
effectively reduced by that amount. There is no room for doubt that this practice is
contrary to the language and spirit of article 5765.
SUMMARY
Under article 5765, V.T.C.S., public school teachers may not
be required to pay for substitutes necessitated by their absence
while engaged in military training or duty.
Attorney General of Texas
JOHN W. FAINTER, JR.
First Assistant Attorney General
Prepared by Jon Bible
Assistant Attorney General
APPROVED:
OPINION COMMlTTEE
C. Robert Heath, Chairman
Jon Bible
Susan Bradshaw
Susan Garrison
Rick Gilpin
Bruce Youngblood
p. 7,61