Untitled Texas Attorney General Opinion ( 1982 )

The Attorney General of Texas
July 6, 1982
MARK WHITE
Attorney General
Mr. Raymon L. Bynum Opinion No.MW-485
Supreme Court Building Commissioner of Education
P. 0. BOX 12546
Austin, TX. 76711. 2546
Texas Education Agency Re: Whether section 2.07(b)(2)
512/475-2501
201 East Eleventh Street of the Education Code relating
Telex 9101674-1367 Austin, Texas 78701 to assignment of salary by
Telecopier 512,475.0266 married person is still valid
Dear Mr. Bynum:
1607 Main St., Suite 1400
Dallas, TX. 75201.4709
2141742-6944 Your question concerns section 2.07 of the Texas Education Code,
which provides in pertinent part as follows:
4624 Alberta Ave.. Suite 160
El Paso, TX. 79935.2793
(b) Any teacher's or school employee's
915/533-3464 assignment. pledge, or transfer of his salary or
wages as security for indebtedness -- or any
interest or part of his salary or wages -- then
1220 Dallas Ave., Suite 202 due or which may become due under an existing
Houston, TX. 770028966
713/650-0666
contract of employment shall be enforceable only
under the following conditions:
606 Broadway, Suite 312 . . . .
Lubbock, TX. 79401.3479
606/747-5236
(2) Any assignment, pledge, or transfer must
be in writing and acknowledged as required for the
4309 N. Tenth, Suite B acknowledgement of deeds or other recorded
McAllen, TX. 76501-1665 instruments, and if executed by a married person,
5121662.4547 it must also be executed and acknowledged in a
like manner by his or her spouse.... (Emphasis
200 Main Plaza, Suite 400 added).
San Antonio, TX. 76205.2797
5121225.4191 You ask whether the underlined requirement is valid under current
Texas marital property laws.
An Equal Opportunity/
Affirmative Action Employer Article XVI, section 15 of the Texas Constitution provides in
relevant part that:
All property, both real and personal, of a spouse
owned or claimed before marriage, and that
acquired afterward by gift, devise or descent,
shall be the separate property of that spouse; and
laws shall be passed more clearly defining the
p. 1712
Mr. Raymon L. Bynum - Page 2 (MW-485)
rights of the spouses, in relation to separate and
community property....
Title 1 of the Family Code was enacted in 1969. Acts 1969, 61st
Leg., ch. 888, at 2707. As amended in 1973. section 5.22 thereof
provides in pertinent part as follows:
(a) During marriage, each spouse has the
sole management, control, and disposition of the
community property that he or she would have owned
if single, including but not limited to:
(1) personal earnings;
. . ..
(c) Except as provided in Subsection (a) of
this section, the community property is subject to
the joint management, control, and disposition of
the husband and wife, unless the spouses provide
otherwise by power of attorney in writing or other
agreement.
Under this section, each spouse has "sole management, control,
and disposition" of his or her "personal earnings." Section
2.07(b)(2) of the Education Code requires, however, that an
assignment, pledge, or transfer of a teacher's or school employee's
salary or wages must, if executed by a married person, "also be
executed and acknowledged in a like manner by his or her spouse."
Your question is essentially whether, in enacting section 5.22 of the
Family Code, the legislature impliedly repealed this requirement.
We begin by noting that our courts do not favor repeal by
implication. Where two statutes enacted at different times are not
inconsistent, repeal by implication occurs only if the later enactment
"embrace[s] all the law upon the subject with which it deals" and is
clearly intended as a complete replacement for former law. - Motor
Investment Company v. City of Hamlin, 179 S.W.2d 278, 281 (Te!X. 1944).
Accord, Standard v. Sadler, 383 S.W.2d 391 (Tex. 1964); Wintermann v.
McDonald, 102 S.W.2d 167 (Tex. 1937). The rule governing repeal by
imolication was sunrmarizedin the followinp.manner in Texas and N.O.R.
Company v. W.A. Kelso Building Material Company, Inc., 250 S.W.2d 426,
430 (Tex. Civ. App. - Galveston 1952, writ ref'd n.r.e.):
[Wlhere there is no express repeal, the
presumption is that in enacting a new law the
legislature intended the old statute to remain in
operation. So, a repeal by implication will be
adjudged only when such result is inevitable or
p. 1713
Mr. Raymon L. Bynum - Page 3 (MW485)
was plainly intended by the Legislature. Further,
the doctrine of implied repeal may not be invoked
merely because of inconsistency or repugnance
between earlier and later legislation. The court
will endeavor to harmonize and reconcile the
various provisions and if both acts can stand
together, the rule is to let them stand.
Thus, we cannot conclude that the section 2.07(b)(2) requirement has
been repealed by implication unless it is clear that the legislature
"plainly intended" that result.
The section 2.07(b)(2) requirement was first imposed in 1939. As
originally enacted, article 2883a, V.T.C.S., the predecessor of
section 2.07, provided in relevant part that:
such assignment, transfer, or pledge be in writing
and acknowledged in the same manner as required
for the acknowledgment of a deed or other
instrument for registration, and provided further
that if such instrument be executed by a married
person it shall also be executed and acknowledged
by his or her spouse in such manner.
In 1939, article XVI, section 15 of the Texas Constitution
provided that:
[a]11 property, both real and personal, of the
wife, owned or claimed by her before marriage, and
that acquired afterward by gift, devise or
descent, shall be her separate property; and laws
shall be passed more clearly defining the rights
of the wife, in relation as well to her separate
property as that held in common with her
husband....
The 1939 version of article 4619, V.T.C.S., the predecessor of
section 5.22 of the Family Code, provided in pertinent part that:
Section 1. All property acquired by
either the husband or wife during marriage, except
that which is the separate property of either,
shall be deemed the common property of the husband
and wife; and all the effects which the husband
and wife possess at the time the marriage may be
dissolved shall be regarded as common effects or
gains, unless the contrary be satisfactorily
proved. During coverture the common property of
the husband and wife may be disposed of by the
p. 1714
Mr. Raymon L. Bynum - Page 4 (MW-485)
husband only; provided, however, if the husband
shall have disappeared....
When the foregoing provisions are read together, it becomes
apparent that in 1939, the following was true: (1) The personal
earnings of a spouse, i.e., salary or wages, earned during marriage
were part of the "common property" of the husband and wife; (2) As a
general rule, the husband had the sole right to control said common
property; (3) This rule was, however, subject to such exceptions as
the legislature should create, see, e.g., Hawkins v. Britton State
Bank, 52 S.W.2d 243 (Tex. 1932) (rents from wife's separate lands are
community property but, under former articles 4614 and 4616, V.T.C.S.,
are under wife's exclusive management and control); and (4) article
2883a. V.T.C.S., created such an exception. Under this statute, if a
married, male teacher or school employee wished to assign, pledge, or
transfer all or part of his salary or wages as security for
indebtedness, he was obliged, notwithstanding his general right to
control the personal earnings of either spouse, to have his wife
execute and acknowledge the instrument as well. See Hawkins v.
Britton State Bank, supra (articles 4614 and 4616 create exceptions to
general rule stated in article 4619).
The status of one's personal earnings is different today. Said
earnings are now part of the "special community" property listed in
section 5.22 of the Family Code. See Estate of Wyly v. Commissioner
of Internal Revenue, 610 F.2d 1282 (5th Cir. 1980). A spouse's
community interest in section 5.22(a) "special community" property is
different from his or her general community interest, in the sense
that although the other spouse owns an undivided one-half interest in
the property, the spouse with the special community interest has the
sole power of management, control and disposition of it. Estate of
wJ& supra.
In support of the contention that section 5.22 of the Family Code
impliedly repealed section 2.07(b)(2) of the Education Code, it is
urged that the section 2.07(b)(2) requirement is at odds with the
philosophy expressed in section 5.22(a), viz., that each spouse should
have the "sole" right to manage his or her personal earnings. As we
have shown, however, the general rule in 1939 was that husbands had
the "sole" right to manage the common property of the marriage,
including the spouses' personal earnings, but this did not prevent the
legislature from creating the exception then embodied in article 2883a
and now found in section 2.07(b)(2). Admittedly, given section 5.22
of the Family Code, section 2.07(b)(2) now operates as a limitation
upon the management rights of either spouse, not just the husband;
nevertheless, we conclude that the section 2.07(b)(2) requirement is,
at least in theory, no more inconsistent with the philosophy expressed
in section 5.22 of the Family Code than the article 2883a requirement
was with the concept underlying article 4619.
p. 1715
Mr. Raymon L. Bynum - Page 5 (MW-485)
The legislature was free in 1939 and is free now to define the
rights of spouses with respect to their community property. Tex.
Const. art. XVI, 915. It exercised that right in 1939 when, through
the enactment of article 2883a, it qualified a husband's otherwise
broad power to manage common property. The article 2883a requirement
has been on the books in one form or another since 1939. In light of
this, we cannot conclude that the legislature "plainly intended" to
repeal the requirement when it enacted section 5.22 of the Family
Code.
SUMMARY
Section 5.22 of the Texas Family Code did not
impliedly repeal section 2.07(b)(2) of the Texas
Education Code.
Very truly yours,
.
3%zzd
MARK WHITE
Attorney General of Texas
JOHN W. FAINTER, JR.
First Assistant Attorney General
RICHARD E. GRAY III
Executive Assistant Attorney General
Prepared by Jon Bible
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Susan L. Garrison, Chairman
Jon Bible
Rick Gilpin
Patricia Hinojosa
Nancy Lynch
Jim Moellinger
Bruce Youngblood
p. 1716