Can a Texas school district give back pay to an employee who was suspended and later acquitted?

Texas AG Opinion JC-0115: Back Pay for School Employees Who Were Acquitted

Plain-English summary

Several El Paso Independent School District employees were indicted on theft and bribery charges, suspended without pay, and then terminated. Some were later acquitted and reinstated after filing grievances, and they sought back pay for the time between suspension and reinstatement. The El Paso County Attorney asked whether the district could legally pay it, given two parts of the Texas Constitution that limit gifts of public money and extra compensation, and a provision of the Education Code about how districts may spend their funds.

The Attorney General concluded that the district may award back pay but is not required to. Article III, section 52 bars granting public money to an individual, and article III, section 53 bars extra compensation after services have been rendered; both have been read to apply to school districts. But the opinion explained, drawing on earlier opinions, that these bans do not prohibit paying benefits owed under the terms of an employment contract. If a district had a policy permitting back pay that was in effect when the employee was suspended, that policy is treated as a condition of employment, so paying under it is not an unconstitutional gift or extra compensation. The opinion looked at the El Paso district's personnel policy, which let an employee who was reinstated without back pay file a grievance to recover it, and read that as enough to constitute a prior condition of employment. So the board could pay without violating sections 52 or 53.

The opinion was careful to add two limits. First, the board is not obligated to pay; it may decline for any valid reason, because the prior-policy rule only removes the constitutional bar, it does not create an entitlement. Second, on the Education Code question, section 45.105 (which governs the use of state, county, and local school funds) does not prohibit back pay where the payment can validly be viewed as a prior condition of employment. The opinion noted that an earlier opinion had read the predecessor statute to give trustees broad discretion over local school funds, and concluded section 45.105 likewise permits back pay so long as a permitting policy was effective when the employee was suspended.

Currency note

This opinion was issued in 1999. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Could the school district pay back pay to employees who were acquitted and reinstated?
Yes, but it was not required to. The opinion concluded the district could award back pay if it had a policy permitting the practice in effect when the employee was suspended.

Didn't the constitution ban gifts of public money and extra compensation?
It does, under article III, sections 52 and 53, but the opinion explained those bans do not reach benefits owed under an employment contract. A prior back-pay policy counts as a condition of employment, so paying under it is not a prohibited gift.

How did a personnel policy turn into a "condition of employment"?
The opinion read the district's policy, which let a reinstated employee file a grievance to recover back pay, as a pre-existing term of employment. That brought it within the rule from a prior opinion (H-402) allowing back pay when a policy permitted it.

Was the district obligated to pay?
No. The opinion stressed that the board could decline to award back pay for any valid reason. The prior-policy rule only removes the constitutional bar; it does not create an entitlement.

Did the Education Code stop the district from paying?
No. The opinion concluded section 45.105 permits a district to award back pay where it can validly be viewed as a prior condition of employment, consistent with trustees' broad discretion over local school funds.

Background and statutory framework

The opinion applied the established reading of article III, sections 52 and 53. Although those sections literally address counties and municipalities, courts have applied them to independent school districts (Harlingen Indep. Sch. Dist. v. C.H. Page & Bro.). The key prior authority was Attorney General Opinion H-402 (1974), which held a county could award back pay to a suspended-then-reinstated employee only if a policy permitting the practice existed beforehand, so that it could be viewed as a term of the employee's contract. Opinion H-1303 (1978) reinforced that the constitutional provisions (sections 44, 51, 52, and 53) do not prohibit paying benefits under an employment contract, citing Byrd v. City of Dallas, City of Corpus Christi v. Hershbach, and the Galveston and Corpus Christi appellate decisions.

Applying that framework, the opinion read the El Paso district's personnel policy, which afforded an employee reinstated without back pay the right to file a grievance to recover it, as a sufficient prior "condition of employment." On the statutory question, the opinion relied on Attorney General Opinion DM-48 (1991), which read the predecessor of Education Code section 45.105 to give trustees broad discretion over local school funds (including implied authority to pay accrued sick leave), and concluded section 45.105 likewise permits back pay when a permitting policy was effective at the time of suspension. Throughout, the opinion emphasized that permission is not obligation: the board retained discretion to deny back pay for any valid reason.

Citations

Statutes and authorities:

• Tex. Const. art. III, §§ 52, 53
• Tex. Educ. Code Ann. § 45.105
• Tex. Att'y Gen. Op. Nos. H-402 (1974), H-1303 (1978), DM-48 (1991)

Cases:

• Harlingen Indep. Sch. Dist. v. C.H. Page & Bro., 48 S.W.2d 983 (Tex. Comm'n App. 1932, holding approved)
• Byrd v. City of Dallas, 6 S.W.2d 738 (Tex. 1928)
• City of Corpus Christi v. Hershbach, 536 S.W.2d 653 (Tex. Civ. App.-Corpus Christi 1976, writ ref'd n.r.e.)
• City of Galveston v. Landrum, 533 S.W.2d 394 (Tex. Civ. App.-Houston [1st Dist.] 1976, writ ref'd n.r.e.)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/john-cornyn/jc-0115
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1999/jc0115.pdf

Original opinion text

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

September 24, 1999

The Honorable Jose R. Rodriguez
County Attorney, El Paso County
County Courthouse
500 East San Antonio, Room 203
El Paso, Texas 79901

Opinion No. JC-0115

Re: Whether a school district may award back pay to employees who were indicted, suspended, and subsequently acquitted (RQ-0035)

Dear Mr. Rodriguez:

You have requested our opinion regarding whether the El Paso Independent School District (the "District") is precluded either by article III, sections 52 and 53 of the Texas Constitution, or by section 45.105 of the Education Code from awarding back pay to employees who were indicted, suspended, and subsequently acquitted. We conclude that the District may award back pay, but that it is not required to do so.

You indicate that a number of employees of the El Paso Independent School District were indicted on charges of theft and bribery. They were first suspended without pay, and then terminated from employment. Several were subsequently acquitted, and those individuals were thereafter reinstated after filing grievances. These reinstated employees are now seeking back pay from the period of time of their initial suspension until their reinstatement.

Article III, section 52 of the Texas Constitution provides, in part: "[T]he 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 . . . ." Similarly, article III, section 53 of the Texas Constitution, provides, in relevant part: "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 contractor, after service has been rendered . . . ." Although this constitutional prohibition is literally applicable only to counties and municipalities, it has been construed to apply to an independent school district. See Harlingen Indep. Sch. Dist. v. C.H. Page & Bro., 48 S.W.2d 983, 986 (Tex. Comm'n App. 1932, holding approved).

Attorney General Opinion H-402 considered whether a county employee who was suspended and later reinstated could be awarded back pay in light of article III, section 53. The opinion concluded that the commissioners court was not authorized to grant back pay unless there had existed, prior to the award of back pay, a policy permitting the practice. Under such circumstances, the policy could be viewed as a term of the employee's contract, i.e., "a condition of employment no different than the rate of compensation or amount of vacation an employee is to receive." Tex. Att'y Gen. Op. No. H-402 (1974) at 2. As this office noted in Attorney General Opinion H-1303, "these constitutional provisions [article III, sections 44, 51, 52 and 53] do not prohibit the payment of benefits to employees under the terms of a contract of employment." Tex. Att'y Gen. Op. No. H-1303 (1978) at 3; see also Byrd v. City of Dallas, 6 S.W.2d 738 (Tex. 1928); City of Corpus Christi v. Hershbach, 536 S.W.2d 653 (Tex. Civ. App.-Corpus Christi 1976, writ ref'd n.r.e.); City of Galveston v. Landrum, 533 S.W.2d 394 (Tex. Civ. App.-Houston [1st Dist.] 1976, writ ref'd n.r.e.).

In the situation you present, there is a dispute between the employees and the Board of Trustees (the "Board") regarding whether such a policy existed in the El Paso Independent School District. The employees cite the following provision of the District's personnel policies: "If the superintendent declines to reinstate the employee after the disposition of the criminal charge, or reinstates the employee without back pay, the employee may file a written grievance within the time lines established in applicable legal and local policies." Letter from Honorable Jose R. Rodriguez, El Paso County Attorney, to Honorable John Cornyn, Attorney General (Exhibit D) (Mar. 3, 1999) (on file with Opinion Committee). We assume that this policy was in effect at the time of the employees' suspension. Although no portion of the personnel policies we have been provided affirmatively sanctions an employee's right to back pay, the quoted provision appears to permit the practice. Indeed, an aggrieved employee who is acquitted of a criminal charge, and is reinstated without back pay, is specifically afforded the right to "file a written grievance" to recover this amount. Assuming this is what the provision means, the quoted provision would be in our view sufficient to constitute a prior written "condition of employment" within the terms of Attorney General Opinion H-402. Thus, the Board may award back pay without contravening article III, sections 52 or 53.

The Board is not, however, required to award back pay. The Board may find, for any valid reason, that an employee is not entitled to back pay. Attorney General Opinion H-402 stands merely for the proposition that the Board is not prohibited by the constitution from awarding back pay if there was a prior district policy permitting the practice.

You also suggest that section 45.105 of the Education Code might preclude the District from awarding back pay in the situation before us. This statute restricts a district's use of "the state and county available funds," and "local school funds." We find nothing in that statute that would prohibit the District from awarding back pay where such payment may validly be viewed as a prior "condition of employment." In Attorney General Opinion DM-48, this office said that the predecessor statute of section 45.105 "gives trustees of a school district broad discretion to expend local school funds," and that, consequently, a district has implied authority to pay its employees for their accrued sick leave. Tex. Att'y Gen. Op. No. DM-48 (1991) at 3. In our view, section 45.105 likewise permits a school district to award back pay to a particular employee so long as the district had a policy permitting back pay effective at the time the employee was suspended.

SUMMARY

The El Paso Independent School District appears to have had a policy permitting the award of back pay to an employee who is suspended or terminated from employment and subsequently reinstated. As a result, the District may grant such back pay without contravening article III, sections 52 and 53 of the Texas Constitution. The District is not, however, required to award back pay, and may decline to do so for any valid reason. Section 45.105 of the Texas Education Code permits the District to award back pay.

JOHN CORNYN
Attorney General of Texas

ANDY TAYLOR
First Assistant Attorney General

CLARK KENT ERVIN
Deputy Attorney General - General Counsel

ELIZABETH ROBINSON
Chair, Opinion Committee

Rick Gilpin
Assistant Attorney General - Opinion Committee