Untitled Texas Attorney General Opinion ( 1979 )

The Attorney General of Texas
December 3, 1979
MARK WHITE
Attorney Gan~ml
Honorable Rene A. Querra Opinion No. W-93
Criminal ,Ditrict Attorney Pro Tern
Hidalgo County Re: Payment by board of trustees
Edinburg, Texas 78539 of an independent school district
for expenses incurred by relatives
of board members or other non-
board persons who attended school
board-related activities.
Dear Mr. Guerra:
You ask whether the trustees of an independent school district may
pay expenses incurred by spouses or other persons who accompany school
board members to board-related activities, even thou@ these persons are
not school board memben or emplaydes of the school dbtrict YOUfnform
us that school board members of an independent school district have
attended school-related conventions accompanied by their spouses. The
board of trustees has authorfxed payment for theactual expenses, including
travel, meals, and l-g, incurred by spouses of board members in
attending conventions.
The board’s authority to pay expenses incurred by board members in
attending school-related convenUons derives from the folbwing proviston of
the Education Code:
Looal s&o1 funda . . . may be used for the
purposes enumerated for state and county funds . . .
and for other purposes necessary in the conduct of ,
public schools to be detamfned by the board of
trusteea.. .
Educ. Code S 20.48(c). In Attorney General Opinion H-l23 0973) thfs office
considered whether a school board member could be reimbursed for his
expenses fn attending a convention of school admtnfstrators. He had been
designated a delegate and was to partfcipate in a program concerning
matters important to the school distrfc& The opfnion concluded that the
school board oould pay these expenses .where it determined that payment
was “necessary in the conduct of the public schools.” Each determination
and the legality of a particular expenditure was ultimately for the courts. If
P. 285
. .
Honorable Rene A. Guerra - Page Two (MW-9 3)
the expenditure served only private ends and did not have a public purpose it would make
an unconstitutional grant of public funds in violation of article III, sections 51 and 52 of
the Texas Constitution. E Attorney General Cpinfon H-70 (l973).
The school board generally has discretion to determine whether a Particular payment
is “necessary in the conduct of the public s~hoob%~ However, in our c&nion the board may
not as a matter of law pay the expenses of persons who have no responsibilities or &ties
to perform for the board and whose connection with public school matten is based solely
on their relationship of blood, marriage, or friendship with a board member. You have
submitted no facts indicating that the presence of e school board member’s spotwe,
relative or other associate et a convention will serve school purposes. The presence of
these persons et e convention appears to be purely so&l. Altho4gh a spouse’s presence et
e convention may facilitate personal contact among administrators and thaw contribute in
some small way to school purposes, we believe the benefit accruing to the school district
is too minimal to sustain the expenditure. Cf. Warwick v. United States, 236 P. Supp. 761
(E.D. Ve. 1964) (deductibility from federal income tax return of a wife’s travel expenses).
We note that Attorney General Opinion H-1099 (1977) &cluded that spouses of
public officials could in some cases receive free transportation on state-owned aircraft
where space is available. Whether this benefit could be provided legally depended in part
on the nature of the office, on the spouse% traditional role, and the spouse’s connection
with a particular trip. This opinion must be limited to its facts, and you have presented no
facts and we are aware of none which would establish a public purpose served by the
spouse*s attendance at a convention.
You next ask whether school board members who received payments for expenses
incurred by non-members should be required to reimburse the school district. Where
payment is made from public funds under mistake of law, the public body may seek
reimbursement. City of Taylor v; ?Io&~q 166 S.W.2d 61 (Tex. 1945); Cameron County v.
pox, 2 S.W.td 433 fTex. Comm. App. 1929, jdgmt adopted). This provides an exception to
the general rule that money paid under a mutual mistake of law may not be recovered
City-of Taylor v. Hodxe supra; Gould v. City of El Peso, 440 S.W.2d.696 (Tex. Civ. App.
- El Peso 1969. writ re nr.e.); Nunn-Warren Pub. ,Co. v. Hutchinson County, 45 SW.2d
651 (Tex. Civ. App. - Amari illo 1992. writ rePd). om are ounty of Galveston v.
Gorhem. 49 Tex. 279 (1679h Steaall v. h&annan CountvTf; ,” -&&d llll (Tax. Civ. App. -
Waco 1940, writ di& j,dgmt car.). Although the court in Hayward v. City of Corpus
$Zti, 195 S.W.?d 995 (Tex. Civ. App. - Waco 1946, writ raf’d n&a.) stated in dlcta that
3 payments made by a city under mistake of law could not be recovered, its
decision actually rested on the Sknd that the statute of limitations barred recovery.
Thus, the school board has authority to require reimbursement of travel expenses illegally
paid See also Educ. Code S 23.26(a) (trustees may sue and be sued).
‘As a general rule, school trustees have broad powers of control and management
over the school district, and the courts will not interfere unleas a clear abtme of power and
discretion appears. Nichols v. Aldine Ind School Dist., 356 S.W.2d 182 (Tax. Civ. App. -
Houston 1962, no writ); e SSIC v. 330 S.W.2d 708 (Tex. Civ.
P. 286
. - -,~
. .
Honorable Rene A. Querre - Page Three (NW-931
App. - Dallas 1959, writ ref’d n.r.e.X Where the school board member9 thcmeeka have
received unauthorized travel expenses, their own self-interest prevents them from
impartially deciding to forego repayment. We believe their mnml discretion is
significantly limited in this case. g Penal Code S 39.01 (official misconduct). We
believe the board may exercise reasonable discretion in seeking reimbumment from
persons no longer cn the board In making its decision it can consider arch factors as the
amount of funds to be reimbursed, the ease of collection, and the legal and other costs
incident to collection.
SUMMARY
The trustees of an independent school district may not adinarily
pay the travel expenses of spouses and other persons who
accompany school board members to board-related activities The
board has authority to seek reimament for payments made for
such travel exoensen
JOHN W. FAINTER, JR.
First Assistant ‘Attorney General
TED L. HARTLEY
Executive Assistant Attorney General
Prepared by Susan Garrison
Assistant Attorney Qeneral
APPROVED:
OPINIONCOMMfTTRE
C. Robert Heath, Chairman
David B. Brooks
Bob Gammage
Susan Garrison
Rick Gilpin
William G Reid
Bruce Youngblood
Lenny Zwiener
13. 287