Can a Texas school district pay its employees for unused sick leave when they leave?

Texas AG Opinion DM-0048: School Districts Can Still Pay Employees for Accrued Sick Leave

Plain-English summary

The chairman of the House Public Education Committee asked whether Texas school districts could still pay employees for accrued (unused) sick leave after the Legislature passed House Bill 2885 in June 1991. The concern came from two changes in that bill. Section 68 amended Education Code section 13.904 to extend the state minimum sick leave program (five days a year, no limit on accumulation) from teachers to every person regularly employed in the public schools. Section 69 repealed section 21.919, a 1981 provision that had expressly let a district pay accrued sick leave to a non-teacher employee leaving district employment. Some districts read the repeal to mean they could no longer pay accrued sick leave at all.

The Attorney General disagreed and concluded the authority survived. Under the new law, there were no employees left outside the section 13.904 program, so section 21.919, which had applied only to employees not covered by section 13.904, had become unnecessary surplusage. Repealing surplus language did not take away the underlying power. Beyond that, the opinion concluded the Education Code independently authorizes the practice. School trustees have the powers expressly conferred on them plus those necessarily implied, and several provisions give them broad authority: section 23.26(b) (exclusive power to manage and govern the district's schools), section 23.28 (power to employ teachers and other personnel), the discretion to exceed minimum salary bases, and section 20.48(c) (authority to spend local school funds for enumerated purposes and other purposes the board finds necessary to running the schools). Taken together, the opinion read these as conferring the implied power to adopt a policy paying for unused sick leave, both before and after House Bill 2885. A footnote cautioned that a district's authority to provide additional compensation retroactively remained limited by article III, section 53 of the Texas Constitution.

Currency note

This opinion was issued in 1991. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. The Texas Education Code was substantially recodified in 1995, so the section numbers cited here (for example, sections 13.904, 20.48, 23.26, and 23.28) no longer correspond to current law. Verify current statutes before relying on any specific section number or rule mentioned here.

Common questions

Did repealing section 21.919 strip districts of the power to pay accrued sick leave?
No. The opinion concluded the repeal removed language that had become surplusage once the minimum sick leave program was extended to all employees, and that the underlying authority remained.

Where does a school district's authority to pay accrued sick leave come from?
From the board of trustees' express and implied powers under the Education Code: managing and governing the schools (section 23.26(b)), employing personnel and setting their terms (section 23.28), exceeding minimum salary bases, and spending local school funds for purposes the board finds necessary (section 20.48(c)).

Could districts pay accrued sick leave before House Bill 2885?
Yes. The opinion noted that even before the bill, many districts had adopted such policies, and concluded the implied authority existed both before and after the 1991 changes.

Are there any limits on this authority?
The opinion flagged one: a district's authority to provide additional compensation retroactively is limited by article III, section 53 of the Texas Constitution, which restricts extra pay for services already rendered.

Background and statutory framework

House Bill 2885 (Acts 1991, 72d Leg., ch. 391) was primarily a school finance measure. Section 68 amended Education Code section 13.904(a) to replace "every teacher" with "every person regularly employed in the public free schools of Texas," extending the five-day minimum sick leave program to all district employees. Section 69 repealed section 21.919 (enacted by Acts 1981, 67th Leg., ch. 198), which had authorized a district to pay accrued sick leave to an employee not covered by section 13.904. The opinion concluded the repeal was of surplusage because no employees remained outside section 13.904.

On implied authority, the opinion relied on Harlingen Indep. School Dist. v. C. H. Page & Bro. (trustees have powers expressly conferred or necessarily implied) and Attorney General Opinion JM-1000 (1988), and pointed to Education Code sections 23.26(b) and 23.28, the discretion to exceed the minimum salary bases in sections 16.055 and 16.056 (see section 16.057(b); Attorney General Opinion M-493 (1967)), and the broad spending authority in section 20.48(c) (see Attorney General Opinions JM-490 (1986) and H-133 (1973)). It analogized to Attorney General Opinion H-797 (1976) (commissioners court had implied authority to pay accrued sick leave). A footnote noted the constitutional limit on retroactive additional compensation under article III, section 53, citing Word v. City of San Antonio and Attorney General Opinion MW-68 (1979), and another noted the state discontinued funding for sick leave in 1984, so post-1984 payments would come from local school funds.

Citations

Constitutional and statutory provisions:

• Education Code § 13.904 (state minimum sick leave program; extended to all employees by HB 2885)
• Education Code § 21.919 (repealed authority to pay accrued sick leave to non-covered employees)
• Education Code §§ 23.26(b), 23.28 (trustees' powers to manage schools and employ personnel)
• Education Code §§ 16.055, 16.056, 16.057(b) (minimum salary base and discretion to exceed it)
• Education Code § 20.48(c) (authority to spend local school funds for necessary purposes)
• Tex. Const. art. III, § 53 (limit on retroactive additional compensation)
• House Bill 2885, Acts 1991, 72d Leg., ch. 391, §§ 68, 69; Acts 1981, 67th Leg., ch. 198 (enacting former § 21.919)

Cases:

• Harlingen Indep. School Dist. v. C. H. Page & Bro., 48 S.W.2d 983, 986 (Tex. Comm'n App. 1932, judgm't adopted)
• Word v. City of San Antonio, 560 S.W.2d 163, 166 (Tex. Civ. App.-San Antonio 1977, writ ref'd n.r.e.)

Prior Attorney General opinions referenced: JM-1000 (1988), M-493 (1967), H-797 (1976), JM-490 (1986), H-133 (1973), MW-68 (1979).

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0048
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1991/dm0048.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain — the linked PDF is authoritative.

Office of the Attorney General
State of Texas

DAN MORALES
Attorney General

October 10, 1991

Honorable Ernestine V. Glossbrenner
Chairman
Public Education Committee
Texas House of Representatives
P.O. Box 2910
Austin, Texas 78768-2910

Opinion No. DM-48

Re: Whether school districts have the authority to pay school employees for accrued sick leave (RQ-147)

Dear Representative Glossbrenner:

You have requested an opinion regarding the authority of school districts to pay their employees accrued sick leave. Specifically, you ask whether, in light of recent legislation, school districts that have adopted a policy to pay employees for accrued sick leave continue to have the authority to do so. You also ask whether school districts that have not yet adopted such a policy would be prohibited from adopting one in the future.

Your query arises as a result of House Bill 2885, a measure that deals primarily with school finance, passed by the 72nd Legislature in June 1991. See Acts 1991, 72d Leg., ch. 391, at 1475. Section 68 of House Bill 2885 amended section 13.904 of the Education Code, which formerly required school districts to provide teachers with five days of sick leave per year. Prior to the amendment, section 13.904(a) provided that "[a] state minimum sick leave program consisting of five days per year sick leave with no limit on accumulation . . . shall be provided for every teacher regularly employed in the public free schools of Texas." (Emphasis added.) House Bill 2885 amended section 13.904 of the Education Code to extend the requirement that school districts provide five paid sick leave days to all school district employees: "A state minimum sick leave program consisting of five days per year sick leave with no limit on accumulation . . . shall be provided for every person regularly employed in the public free schools of Texas." Acts 1991, 72d Leg., ch. 391, § 68, at 1502 (emphasis added).

In addition, section 69 of House Bill 2885 repealed section 21.919 of the Education Code, which authorized school districts to pay accrued sick leave to any non-teacher employee to whom the school district provided sick leave benefits:

If a school district provides sick leave for an employee not covered under Section 13.904 of this code, the school district may pay the employee for accrued sick leave when the employee leaves the employment of the district.[1]

Apparently, some school districts contend that as the result of the repeal of section 21.919, they are no longer authorized to pay accrued sick leave to any of their employees. Clearly, however, House Bill 2885 repealed section 21.919 as unnecessary surplusage since under the new law there are no employees who are not covered under section 13.904. We conclude that House Bill 2885 does not affect school districts' authority to pay accrued sick leave to their employees.

You also ask us to consider whether the Education Code otherwise authorizes school districts to pay school employees for accrued sick leave. We conclude that it does. The trustees of an independent school district have those powers expressly conferred upon them by law or necessarily implied from express powers. Harlingen Indep. School Dist. v. C. H. Page & Bro., 48 S.W.2d 983, 986 (Tex. Comm'n App. 1932, judgm't adopted); Attorney General Opinion JM-1000 (1988) at 4-5. Section 23.26(b) of the Education Code gives the trustees of a school district the exclusive power to manage and govern the schools of the district. Section 23.28 of the Education Code authorizes a board of trustees to employ teachers and certain other personnel. Although sections 16.055 and 16.056 of the Education Code set forth a minimum monthly salary base for teachers and certain other personnel, the board of trustees of an independent school district has the discretionary power to exceed this minimum. See Educ. Code § 16.057(b); Attorney General Opinion M-493 (1967) (construing predecessor statute). Clearly, the Education Code authorizes a board of trustees to hire employees and to set the terms and conditions of their employment, including their benefits and compensation. We believe these provisions confer upon boards of trustees the implied power to adopt policies allowing payment for unused sick leave. Cf. Attorney General Opinion H-797 (1976) (holding that commissioners court had implied statutory authority to pay accrued sick leave).

In addition, section 20.48(c) of the Education Code authorizes school districts to expend local school funds from district taxes for several specific, enumerated purposes and "for other purposes necessary in the conduct of the public schools to be determined by the board of trustees." This section gives trustees of a school district broad discretion to expend local school funds. See Attorney General Opinions JM-490 (1986) at 2; H-133 (1973) at 4 (both holding that the determination of whether expenditure is necessary under section 20.48(c) is a matter for the discretion of school boards). In our opinion, section 20.48(c) authorizes boards of trustees to expend school funds to pay employees accrued sick leave if they determine that such a policy is necessary to the conduct of the school district. In sum, we conclude that school districts were authorized to adopt policies allowing payment for unused sick leave in the past,[2][3] and continue to have such authority following the passage of House Bill 2885.[4]

SUMMARY

School districts have the implied authority under sections 20.48(c), 23.26(b), and 23.28 of the Education Code to adopt policies to pay their employees for accrued sick leave, and continue to have such authority following the repeal of section 21.919 of the Education Code.

DAN MORALES
Attorney General of Texas

WILL PRYOR
First Assistant Attorney General

MARY KELLER
Executive Assistant Attorney General

JUDGE ZOLLIE STEAKLEY (Ret.)
Special Assistant Attorney General

RENEA HICKS
Special Assistant Attorney General

MADELEINE B. JOHNSON
Chair, Opinion Committee

Prepared by Mary R. Crouter
Assistant Attorney General

[1] Section 21.919 was enacted in 1981. See Acts 1981, 67th Leg., ch. 198, § 2, at 3051.

[2] The state discontinued provision of funds for sick leave in 1984. Therefore, any payment for accrued sick leave after 1984 would be made from local school funds.

[3] Apparently, prior to the adoption of House Bill 2885, many school districts adopted policies providing accrued sick leave to their employees covered by section 13.904, even in the absence of the explicit statutory authority such as that provided for payment of accrued sick leave to non-covered employees in section 21.919.

[4] Of course, a school district's authority to provide additional compensation to its employees retroactively continues to be limited by article III, section 53, of the Texas Constitution. See Word v. City of San Antonio, 560 S.W.2d 163, 166 (Tex. Civ. App.-San Antonio 1977, writ ref'd n.r.e.); Attorney General Opinion MW-68 (1979).