THE J~TIKBRNEY GENERAL
OF~XAS
AUSTIN. TEXASI 78711
February 24, 1976
The Honorable William A. Webb Opinion No. H-786
Acting Commissioner
Coordinating Board Re: Constitutionality
Texas College and University of,severance pay for
system terminated professors.
P. 0. Box 12788, Capitol Station
Austin, Texas 70711
Dear Commissioner Webb:
you have asked our opinion on the constitutionality of
a portion of the Coordinating Board's Polic
Freedom, Tenure and Responsibility). Tii&?BE ~o~::emic
of the Policy Paper in question is paragraph (3), section
IV, Faculty Dismissals, which provides:
If the faculty appointment is to be
terminated, the faculty member, except
in cases of moral turpitude, will receive
his salary at least for one year or for
the period to which he is entitled under
these regulations. He will be continued
in his duties for that period unless at
the discretion of the institution he be
granted a leave of absence with pay.
You indicate that some institutional administrators
contend that this provision conflicts with article 3, sections
51, 52 and 53 of the Texas Constitution. These sections
provide in part:
p. 3315
The Honorable William A. Webb - page 2 (H-786)
Sec. 51. The Legislature shall have no
power to make any grant or authorize the
making of any grant of public moneys to
any individual, association of individuals,
municipal or other corporations whatso-
ever. . . .
. . .
Sec. 52. (a) Except as otherwise provided
by this section, the Legislature shall have
no power to authorize any county, city, town
or other political corporation or subdivision
of the State to lend its credit or to grant
public money or thing of value in aid of, or
to any individual, association or corporation
whatsoever, or to become a stockholder in such
corporation, association or company.
. . .
Sec. 53. The Legislature shall have no power
to grant, or to authorize any county or
municipal authority to grant, any extra
compensation, fee or allowance to a
public officer, agent, servant or con-
tractor, after service has been rendered,
or a contract has been entered into, and
performed in whole or in part; nor pay,
nor authorize the payment of, any claim
created against any county or municipality
of the State, under any agreement or contract,
~made without authority of .law.
Another.'sectionof the.Constitution which raises similar
questions is article 3, section 44, which provides:
Sec. 44. The Legislature shall provide
by law for the~compensation of all officers,
servants, agents and public contractors, not
provided for in this Constitution, but shall
not grant extra compensation to any officer,
p. 3316
The Honorable William A. Webb - page 3(H-786)
agent, servant, or public contractors, after
such public service shall have been performed
or contract entered into, for the performance
of the same; nor grant, by appropriation or
otherwise, any amount of money out of the
Treasury of the State, to any individual, on
a claim, real or pretended, when the same shall
not have been provided for by pre-existing law;
nor employ any one in the name of the State,
unless authorized by pre-existing law.
Similar constitutional questions were raised in Attorney
General Opinion H-402 (1974), in which a county sought to
provide back pay for a county employee who was suspended but
later reinstated. We said:
If, then, a county commissioners
court has authority to hire employees, by
implication it has the authority to set
the terms of their employment. One such
term which may be possible is that if an
employee is indicted he will be suspended
with the understanding that he will be
reinstated with back pay if he is subse-
quently exonerated. A policy of this
kind would be a condition of employment
no different than the rate of compensation
or amount of vacation an employee is to
receive.
But in the situation you have described,
no such policy regarding indicted employees
was ever adopted by the commissioners
court. Instead, it is seeking to award
back pay after the indicted employee has
already been exonerated and reinstated.
In these circumstances it is our opinion
that a retroactive grant of back pay
would be unconstitutional.
p. 3317
The Honorable William A. Webb - page 4 (H-786)
In our opinion, a reasonable policy that a professor
who is to be terminated receive substantial notice or, if he
is to be terminated immediately, receive his salary for the
period for which he would have otherwise received notice is
constitutional so long as it is a term or condition of
employment. Thus, if a college adopts this policy it may
provide such severance pay for its employees who are termin-
ated after the adoption of the policy.
SUMMARY
A college may constitutionally provide
that terminated professors will receive
either substantial notice or severance
pay.
Very truly yours,
JOHN L. HILL
Attorney General of Texas
APPROVED:
st Assistant
C. ROBERT HEATH, Chairman
Opinion Committee
jwb
p. 3318