Could a Texas public university withhold an employee's paycheck to collect parking fines, bounced-check charges, or court-ordered debts owed to the university?
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This page answers the general question as of 1984. Ezel answers yours: what it means for your facts, under current Texas law, with citations.
Texas AG Opinion JM-255: University Paycheck Withholding
Plain-English summary
The Texas State University System asked whether a university could withhold all or part of an employee's paycheck when the employee had not paid university parking fines, had paid the university with a check returned for insufficient funds, or had been ordered by a court to pay damages or restitution to the university. The request described the issue as authority "to withhold paycheck from university employees who are indebted to the university." Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0255.pdf
JM-255 concluded that the university could not collect those alleged obligations by withholding current wages. Its summary stated that a university "may not resort to the self-help of withholding an employee's paycheck for current wages" to collect sums the employee was said to owe it. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0255.pdf
The opinion relied on Texas policy protecting current wages from creditors. Quoting Benton, it said a creditor "should not be permitted to resort to self-help to impound current wages that are not subject to garnishment." Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0255.pdf
University rules incorporated into employment contracts did not supply the necessary agreement. JM-255 said employees did not consent to every rule merely because their contracts acknowledged the regents' legal power to make valid rules and regulations. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0255.pdf
The opinion did not decide whether assessed parking fines were debts. It said that question was unnecessary after concluding that the constitutional and statutory protections for current wages barred the proposed withholding method. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0255.pdf
Currency note
This opinion was issued in 1984. 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 a Texas public university withhold an employee's current paycheck to collect money the employee allegedly owed it?
No. JM-255 concluded that a university could not "resort to the self-help of withholding an employee's paycheck for current wages" for that purpose. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0255.pdf
Did the answer cover university parking fines and returned checks?
Yes. Those were two of the three examples in the request. The third was money that a state or federal court had ordered the employee to pay to the university as damages or restitution. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0255.pdf
Did an employment contract make paycheck withholding permissible?
Not on the language presented. The opinion said the contract provision was an acknowledgment of the regents' legal power, not an agreement authorizing withholding, and added that employees could not be said to have consented to "whatever rules and regulations the regents may promulgate." Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0255.pdf
Why did JM-255 treat withholding as improper self-help?
The opinion adopted Benton's reasoning that self-help was even more strongly opposed to the wage-protection policy because "it is not subject to similar judicial safeguards." Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0255.pdf
Did JM-255 decide whether a parking fine was a debt under article 4350?
No. It stated that "it is unnecessary to determine whether assessed parking fines are 'debts'" because the wage-protection provisions supplied a contrary rule against withholding current pay. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0255.pdf
Background and statutory framework
Article 4350 stated that no warrant could be issued to a person indebted to the state until the debt was paid. University rules similarly provided that salary or other payments would not be made while an employee was indebted to the university, the system, or the state. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0255.pdf
Article XVI, section 28 of the Texas Constitution and article 3836(a)(7), later identified in the opinion as Property Code §42.002(8), protected current wages from garnishment and other seizure. JM-255 said those provisions ran contrary to the universities' proposed self-help rule. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0255.pdf
The opinion read Attorney General Opinion MW-416 as allowing article 4350 warrant withholding only after a proper statutory allegation of debt, established by agreement or by lawfully effective means, and not when a contrary statute required payment. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0255.pdf
Citations and references
- Benton v. Wilmer-Hutchins Independent School District, 662 S.W.2d 696 (Tex. App. - Dallas 1983, writ dism'd), supplied the central rule against a public employer's self-help seizure of current wages. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0255.pdf
- Fazekas v. University of Houston, 565 S.W.2d 299 (Tex. Civ. App. - Houston [1st Dist.] 1978, writ ref'd n.r.e.), appeal dismissed, 440 U.S. 952 (1979), addressed university rules and employment contracts, but JM-255 said it did not establish contractual consent to paycheck withholding. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0255.pdf
- Texas Technological College v. Fry, 288 S.W.2d 799 (Tex. Civ. App. - Amarillo 1956, no writ), and Foley v. Benedict, 55 S.W.2d 805 (Tex. 1932), appeared in the discussion of judicial safeguards and the limits on valid university rules. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0255.pdf
- Attorney General Opinion MW-416 (1981), Attorney General Opinion O-4655 (1942), and Letter Advisory No. 57 (1973) appeared in the discussion of article 4350 warrant withholding. Source: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0255.pdf
Source
- Landing page: https://www.texasattorneygeneral.gov/opinions/jim-mattox/jm-0255
- Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1984/jm0255.pdf
Original opinion text
Best-effort transcription from a scanned PDF. Minor errors may remain. The linked PDF is authoritative.
The Attorney General of Texas
December 14, 1984
Mr. John S. Cargile
Chairman
Texas State University System
505 Sam Houston Building
Austin, Texas 78701
Opinion No. JM-255
Re: Whether a university may withhold the salary of an employee who fails to pay fees assessed against the employee by the university, and related questions
Dear Mr. Cargile:
You have asked our opinion about the authority of a university within the Texas State University System "to withhold paycheck from university employees who are indebted to the university." Specifically, you ask whether a university has authority to withhold all or a portion of the paycheck of an employee who: (1) has failed to pay fees assessed against him for violations of university parking regulations; or (2) has paid for goods or services provided him by the university with a check later returned for insufficient funds; or (3) has been ordered by a state or federal court to pay monetary damages (or make restitution) to the university.
Subsection (a) of article 4350, V.T.C.S., declares:
No warrant shall be issued to any person indebted or owing delinquent taxes to the State, or to his agent or assignee, until such debt or taxes are paid.
Similarly, you advise, the Texas State University System and its component institutions, through their boards of regents, have promulgated rules and regulations stating (in essence) that neither salary payments nor other payments will be made to an employee while he is indebted to the university, the system, or the state. By the express terms of their employment contracts, we understand, university employees agree to obey and abide by university rules and regulations.
In Benton v. Wilmer-Hutchins Independent School District, 662 S.W.2d 696 (Tex. App. - Dallas 1983, writ dism'd), a school district resorted to the self-help of deducting from its teachers' paychecks amounts the district claimed had been overpaid the teachers in previous years. The court noted the strong policy of this state to protect current wages from the claims of creditors, saying:
Article XVI, section 28, of the Texas Constitution provides that current wages shall not be subject to garnishment, and article 3836(a)(7) [V.T.C.S.] provides that current wages are "exempt from attachment, execution and every type of seizure for the satisfaction of liabilities." Although the district may be correct in contending that its actions cannot be technically described as either a garnishment or an attachment, the asserted remedy of self-help is even more strongly opposed to the policy underlying this limitation of judicial remedies, since it is not subject to similar judicial safeguards. A creditor, such as the district claims to be, should not be permitted to resort to self-help to impound current wages that are not subject to garnishment.
Briefs from the universities and the system suggest that the Benton case should not apply to the universities because, they say: (1) a board of regents of a state institution has considerably more authority in these matters than the trustees of an independent school district, and the local school board had not established a rule prohibiting payments to indebted employees; and (2) the incorporation of the regents' rule into the employment contracts at the universities "constitutes an agreement authorizing withholding of a debtor's paycheck" that takes it out of the Benton rationale.
The Benton court, in responding to the school district's assertion that the district could resort to self-help because it had a duty to recover public funds paid out under a mistake of fact, did say the common law rule that mutual debts do not extinguish each other applies "in the absence of agreement or judicial action." 662 S.W.2d at 698 (emphasis added). However, we do not believe the employment contract language utilized by the universities, at least the language submitted to us, constitutes such an agreement.
An "agreement" in the sense used by the Benton court means a contractually enforceable agreement or consent that something may be done. Cf. McCorkel v. District Trustees, 121 S.W.2d 1048 (Tex. Civ. App. - Eastland 1938, no writ). The system and the universities cite Fazekas v. University of Houston, 565 S.W.2d 299 (Tex. Civ. App. - Houston [1st Dist.] 1978, writ ref'd n.r.e.), appeal dismissed, 440 U.S. 952 (1979), to support their claim that university employees, by accepting their employment contracts, contractually agree that university officials may withhold their paychecks in accordance with university rules or regulations. Our reading of Fazekas leads to a different result.
Mr. Fazekas, a tenured professor, lost the case. The university's rules, the court decided, could be enforced against him as a matter of law rather than as a matter of contract, because the contractual obligations of his employment contract were "subject to" (i.e., "subordinate to," "subservient to," or "limited by") the governmental power of the university to change its rules at its discretion. The court said:
By executing these instruments [sequential employment contracts], Professor Fazekas acknowledged that his contractual rights were subordinate to the rules and regulations issued by the Board of Regents.
565 S.W.2d at 307.
An acknowledgment that the law dictates a particular result is not an agreement that something may be done; it is a recognition of the existence of a legal power beyond the reach of the parties to alter. "Consent" implies an agreement to something which could not exist except for the consent and which the "consenting" party has a right to forbid. See De Aguirre v. State, 7 S.W.2d 76 (Tex. Crim. App. 1928); Dixon v. State, 2 S.W.2d 272 (Tex. Crim. App. 1928); Reynolds v. Baker, 191 S.W.2d 959 (Ark. 1946); State ex rel. United Railways Co. v. Public Service Commission, 192 S.W. 958 (Mo. 1917); 18 C.J.S., Consent at 575. We do not think university employees can be said to have "consented to" or "agreed to" whatever rules and regulations the regents may promulgate merely because they acknowledge in their employment contracts the legal power of the regents as public officers to make valid rules and regulations, particularly if the precise rule or regulation at issue was not brought to their attention at the time. Cf. Attorney General Opinion O-6671 (1946) (private employers).
Moreover, in this case, unlike the Fazekas situation, the "self-help" rules and regulations of the universities run counter to the policy of article XVI, section 28 of the Texas Constitution and article 3836(a)(7) of the statutes [now Property Code §42.002(8)], as did the action taken by the school district in Benton. Judicial safeguards are absent here, as there. Cf. Texas Technological College v. Fry, 288 S.W.2d 799 (Tex. Civ. App. - Amarillo 1956, no writ).
Valid rules and regulations of universities exercising delegated power do have the force of law, but rules and regulations that constitute a clear abuse of discretion or a violation of law do not. See Foley v. Benedict, 55 S.W.2d 805 (Tex. 1932). In our opinion, a university within the Texas State University System may not resort to the self-help of withholding an employee's paycheck for current wages to enforce more effectively the collection of sums the employee is said to owe the university.
Article 4350, V.T.C.S., providing that no warrant shall be issued to any person indebted to the state, was not discussed by the Benton court. In Attorney General Opinion MW-416 (1981), however, article 4350 was said to authorize withholding warrants only on a proper statutory allegation of the existence of the debt, either by agreement or by lawfully effective means, and that no authority existed to withhold warrants where there is a contrary statute. We believe section 42.002(8) of the Property Code [formerly article 3836(a)(7), V.T.C.S.] and section 28 of article XVI of the Texas Constitution constitute a "contrary statute" in this context. See Attorney General Opinion O-4655 (1942). See also Attorney General Letter Advisory No. 57 (1973). Cf. Sherman v. Hatcher, 299 S.W. 227 (Tex. 1927).
In view of this resolution of the matter, it is unnecessary to determine whether assessed parking fines are "debts" within the meaning of article 4350 and the rules and regulations of the universities. But see Dixon v. State, 2 Tex. 482 (1847); Ex parte Robertson, 11 S.W. 669 (Tex. Crim. App. 1889). Cf. Adair v. Martin, 595 S.W.2d 513 (Tex. 1980); Attorney General Opinion O-5249 (1943).
SUMMARY
A university within the Texas State University System may not resort to the self-help of withholding an employee's paycheck for current wages to enforce more effectively the collection of sums the employee is said to owe the university.
Very truly yours,
JIM MATTOX
Attorney General of Texas
TOM GREEN
First Assistant Attorney General
DAVID R. RICHARDS
Executive Assistant Attorney General
RICK GILPIN
Chairman, Opinion Committee
Prepared by Bruce Youngblood
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Rick Gilpin, Chairman
Colin Carl
Susan Garrison
Tony Guillory
Jim Moellinger
Jennifer Riggs
Nancy Sutton
Bruce Youngblood
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