Untitled Texas Attorney General Opinion ( 1984 )

The Attorwy’ General of Texas
December 14. 1984
JIM MAlTOX
Attorney Genarrl
3upwftacowl SUlldlW Mr. John 8. Car)iIr opinion no. J&l-255
12646
P. 0. soor chairuct
Ausllft.TX mrt- 2646 Taur State UniVer4ity tty8ta Re: Whether a university may
6tW76.2661 505 Sam Rourtoa BufldfnB vithhold the ralary of .n
rafel aw674.1*7 78701 employee vho fail8 to pay fees
Tahcoplu 6tU416.626fl
Austin. Texar
-amerred lgeinat the employee
.by the university, and related
714Jackson,Wt4 766 questiona
DaIIw,lx. 76aTz46m
a1ul42.6944
Dear Mr. Cergile:
4624Albmll Ave..Suite166 You have aeked our opinion about the authority of a university
El Paso.TX. 789052763 within the Texas State Uaivereity Syetem “to withhold Beychect fron
91- university employe~aa vho are indebted to the university.” Specif i-
__
ully, you ark whel:her a univcraity hae luthority to vithhold all or a
1001Taras.SUN4766 portion of the payc.heck of en &ployee who: (1) he failed to pay
Nowton.lx. nowcJ11t feee caressed againat him for violations of university perking reguk-
71- tione; or (2) heo paid for goods or aervicea prwided him by the
university vith a ‘check later returned for fnsufficimt funde; or (3)
hea been ordered by l atate or federal court to pay monetery damager
SW smadw*y.sun. 312
(or make restitutitnl) to the university.
LuBmeh.lx. 7646t5476
6w747.62s6
Subaeetion (a) of article 6350, V.T.C.S.. declarer:
43W N. lanth Wt. 6 Do varrwlt rh~ll be irated to eny person indebted .
MaAflaft,
lx. 7860%taw
6tM4647 or oving delinquent tuer to the State. or to his
agent o r ldgnee, until ruch debt or tuee are
peid. ..._ ``
!LooM*ln Pf4z.a.
6ute 466
San Antonlo.lx. 762osz767
Siailerly, you edvire, the Texar State Unioerrity Syctee and it*
6li?fZZ64161
component inatitutlott~, through their boardo of regents, have
promAgated rulee tqd regulations stating (in eraence) that neither
An EqualOpp~tunltyf salary peynentr nor other payments vi11 be -de to an employee while
AfflfmWW Act1011
Employw he 10 indebted to the university. the eyrtem. or the etete. By the
expraae terma of tlx?ir employment contracta, ve understand. univaraity
employees agree to obey and l bide by univereity rule. and regulationa.
In Benton v. -Wilaer-Rutchinr Independent School Dietrfct, 662
S.U.2d 696 (Tex. App. - Dall~e 1983. vrit diam’d). a echo01 district
resorted to the s&lf-help of deducting from itr teachera’ paycheck8
amounts the dirtzkt claimed had been overpaid the teacher8 in
previour yearr. lhc court noted the strong policy of thin state to
protect currect vagea from the claime of creditors. saying:
.
i’ h
tlr. John S. Cargile - Page 2 (J?l-2U)
Article XVI ) IBection 28. of the Texas
Constitution provitlea that currant vases rhall not
be subject to gamirhment. and article 3836(a)(7)
[V.T.C.S.] providecl that currant vagea are ‘axampt
from attachment, execution and every type of
seizure for the eatiafsction of liabilities.’
Although the diatrkt msy be correct in contending
that its actions cannot be technically described
AA either a garnlehment or an attachment, the
asserted remedy of oelf-halp la even more strongly
opposed to the po:licy underlying this limitation
of judicial remedies, since it IA not aubject to
similar judicial aaEeguarde. A creditor, luch aa
the district c1sim11 to be. ahould not be pcinitted
to resort to aelf-help to impound currant wages
th a tlre not aubjact to garnishment.
Briefs from the univer~sitiee and the lyatem auggeat that the
Benton case should not spplp to the univeraitiea because, they aey:
‘mbosrd of regenta of a state institution has considerably more
authority in these matters than the truatee6 of sn independent school
district, and the local school board had not eatabliahed s e rule
prohibiting payments to indebted employeea; snd (2) the incorporation
of the regenta’ rule into thl! employment contract8 at the univeraitieo
“constitutes an agreement euthoriaiog withholding of s debtor’s
paycheck” that take6 it out WE the Benton rationale.
The Benton court, im, responding to the school districta’
la a er tiothat
n the district could resort to relf-help because it had A .
duty to recover public funds ipaid out under a mistake of fact, did eay
the eomon lav rule chit mutual debts do not extinguish each other
applies “in the absence of qreement or judicial action.” 662 S.W.Zd
at 698. (emphasis added). Iiovever, WC do not believe the employment
contract language utilized by the universities - at leeat the
language submitted to us -- c,watitutea such an agreement.
An “agreement” in the :senae used by the Benton court meana s
contractually enforceable a(;r’aement or consent comething may be
done. Cf. McCorkel v. Dist$ct Trustees. 121 S.l?.Zd 1048 (Tex. Civ.
APP* - Gtland 1938. no vrj.t.). The system rnd the univcraities cite
Pazekas v. University of Houston.
-- 565 S.W.2d 299 (tex. Civ. App. -
Houston [ 1st Dist.] 1978. writ ref’d n.r.e.1. appeal dismissed. 440
U.S. 952 (1979). to support 1:heir claim thet university employees. by
accepting their employmen!: contracts, contractually agree that
university officials may wi:hhold their paychecks in accordance with
university rules or rcgulatt>ns. Our reading of Fazekas leads co a
different result.
p. 1135
n
Mr. John S. Cargile - Page 3 (JX-255)
Mr. F6xekAA. a tenured professor, loet the CAaa. The
univeraity’a rules, the court decided , could be enforced against him
a6 A matter of lav. rather’ t’han AA A matter of contract, b8CAUAe the
contractual obligation6 of ‘Ma employmant CAntract vere “subject to”
(&. “aubordin6te to.” “oubaervient to,” or “limited by”) the
gave-ntal power of the ~univeraity to change it6 rule8 At it.
discretion. The court said:
By executing tbear InatrUmenta [sequential employ-
unt contr6ct6]~ I?r o fea a oFAte~A
r lcknwledged
th6t him contractual rights vere aubordin6te to
the rule6 and regulations issued by the Board of
Regents.
-
565 S.U.2d 307.
An acknowledgment th6t the lav diCtAteA A pSrtiCUhr rASUlt i8
not an agreement that aome~:hing my be done; it ie a recognition of
the existence of a legal power beyond the reach of the p6rtiea to
alter. “Consent” implies c.n. agreement to something vhich could not
exist except for the consent and which the “consenting” party has A
right to forbid. See Aguirre v. State, 7 S.W.Zd 76 (Tu. Grim. App.
1928); Dixon v. St=. 2 S,,\f.2d 272 (Tex. Grim. App. 1928); Reynolds
v. Baker, 191 S.U.Zd 959 (Ark. 1946); State v. Public Service
Cosmiaaion. 192 S.U. 958 (No. 1917); 1% C.J.S., Consent at 575. We
do not think university amployeea can be said to have “consented to”
or “agreed to" vhataver rules and regul6tiona the regents m=Y
prossJlgate merely because they acknowledge in their employment
contracts the legal power ,>.I the regents as public officers to make
valid rulee and regulationr~. particularly if the precise rule or
regulation at issue vaa not brought to their attention at the time.
Cf.
- Attorney General Opinion O-6671 (1946) (private employers).
Moreover, in this caaa , unlilrc the Fazekaa situation. the “aelf-
help” rulea and regul6tious of the univerritiea run counter to the
policy of article XVI, a’
!ction 28 of the Texan Constitution and
Article 3836(a)(7) of the statutes [now Property Code 542.002(S)]. ma
did the action taken by t!te school district in Benton. Judicial
safeguards are absent here, .UJ there. Cf. Texas Technological College
v. Fry, 288 S.W.Zd 799 (Tex. Civ. App. Grille 1956, no writ).
Valid rules and regula,tions of universities exercising delegated
paver do have the force of law. but rules and regulations that
constitute 6 clear abuse o? discrcticn or a violation of lav do not.
See Foley v. Benedict, 55 S.W.Zd 805 (Tex. 1932). In our opinion, a
university withfn the Texas, State University System may not resort to
the self-help of vithholdirlp; an employee’s paycheck for current wages
to enforce more cffecrivcly the collection oi sums chc cmplovee is
said to we the univerriry.
. . . .
Hr. John S. Car8118 - Page 1 m-255)
Article 4350, V.T.C.S., providing thst no warrsnt shsll be issued
any permon indebted to the state , wee not dimcussed by the Bcnton
court. In Attorney Crnaral~ Opinion MU-416 (1981). however, a-
4350 vss ssid to luthoriro vithholdins varraats only on s propar
statutory slleatioa of the existence of the debt. either by ssraemeot
or by lawfully effective ‘hcsns and that no suthority uisted to
withhold varrsnts vhere there is s contrary ststute. We believe
section 42.002(8) of the Property Coda [forwrly srticle 3836(a)(7).
V.T.C.S.]. aad section 28 w! lrtlcla XVI of the Texas Constitution
constitute ‘c o ntr altatutam”
ry lo this context. Sea Attorney Ganeral
opinion O-4655 (1942). See slao Attorney CanerslTtter Advisory No.
57 (1973). _Cf. Sherman v. Eatcher,
-- 299 S.U. 227 (Tax. 1927).
In viev of thlr resolr.tion of the mater; it ir unnecesrary to
determine whether assessed parking fines are “debts” vithin the
meaning of srticle 6350 snd the rules and rcpulations of the
uaivar&ies. But see DLran v. State. 2 Ta. 482-(1847); Ra parts
Robertson. 11 S.U. 669 G: Grim. App. 1689). Cf. Adslr v. Martin,
595 S.W.fd 313 (Tea. 1980); Attorney Caneral OpitixO-5249 (1943).
A university vd,thin the Texas Stste University
System may not resort. to the self-help of vith-
holding an employees psycheck for current vages to
enforce more effectively the collection of sums
the employee is said to ova the univerrityi
.lrn IATTOX
Attorney General of Texas
Ton GREEN
First Assistaat Attorney Caueral
DAVIDR. RICRARDS
ExecutiveAssistant Attorney General
RICK GILPIN
Chairman, Opinion Comittee
Prepsred by Bruce Youngblood
AESiEtEnt AttOlVl6y &3b6r61
p. 1137
: .:. .
,
Mr. John 5. C6rgila - Page 3 (JX-2%)
APPROVED:
OPINIONCOt@fITTEE
Rick Gilpin, Chairmen
Coliu Carl
Susan G6rri6oa
Tony Guillory
Jim XoellinSer
Jeunifer Riggs
Nancy Sutton
Rruce Youngblood