Case Information
*1 Hon. J. W. Edgar Opiinion No. M- 1051 Commissioner of Zducation
Texas Education Agent} . RF?: W11etha.r retirecd em~~.ny- 201 East 11th Street. ees of the Texeis Educa- tion Agency, who ar ,~ot Austin. ‘i’oxas 78701
ireceivin9 ratir~merli. benefits as melrbers ,jf the Employees ;<etirement System, are ell;-r.bl?. for premium payments On grOU;Y) Insurance policies equal to that of rcgi.iar active e:,;pioy- ees , and related qutza- Dear Dr. Edgar: tions?
In your recent letter you requested our interpret+ tion of Subdivision B of SectIon 9 of Article jL28a, Vernon's Civil Statutes, Section 10 of Article V of Appropriation Act of 1971 (S.B. 11, Acts 62nd Leg., R S., i9'71, p. V-38) and of Se&ion 3 of the Appropriation Act.
Subdivision B of Section 9 of Artl.clc 6228a was a new addition to the statute enacted by the 62i;cl Legisiature. Se&ion B provides tha,t the Board of Trustees of the E,:;pl.oyees Retirement System of Texas shall adopt rules to provide for participation in the premium costs of Gcoup Life alid Heaith Insurance Coverage for member retirees c>i' the System.
YOU state in your letter that very few retired of the Texas Educatlor, and its Special Schools employees are members of the Employees Pet 1rener,t :;ys te:,i: *2 , J. W. Edgar, page 2, ( M - 1 0 5 2)
Hon.
We quote your first question as follows: Are employees of this Agency who have “1.
retired from active service with the State, and who are nc,t receiving retirement benefits as members of the Employee Retirement System, eligible for payment of premiums on policies containing qroup life, health, accident, acci- dental death and dismemberment. disability in- come replacement and hospital, surgical and/or medical expense, equal to that of its regular employees?"
Subdi.vi,sion A of Section 3, Article 6228a provides that persons who are covered by the Teacher Re,tirement Act shall not be eligible for participation in the Employees Retirement System of Texas as defined in Section 2 of Article 6228a. Therefore, any retired employees of your agency who are retired under the provisions of the Teacher Retirement System are specifically excluded from Article 6228a. Sub- division B of Sectj.on 9, Article 622Sa by its very specific terms applies only to "member retirees" of the Employees Retirement System of Texas. We must conclude that unless a person 1s a member retiree of the Employees Retirement System of Texas, the person would not be entitled to the provisions of that system.
Section 10 of Article V of the Appropriation Bill of 1971 (S.B. 11, Acts 62nd tog.. R.S. 1971. p.V-313) is enti.ttled "Limltationa on Use 0 f Other Expense Funds for Paying Salaries and Wages." This section has previously been construed by this office in Attorney General's Opinion M-919 (1971), in which it was concluded that the word "shall" in the fourth paragraph did not make State contributions mandatory. We held that "shall" was mandatory only in designatrnq the funds from which any con- tribution must be made.
Sect.~,m 3 of Art' 1 rc e V of the Appropria~trons Act (S. B. 11, Acts 62nd Leq., R.S. .S971. p,V-33) authorizes re- sponsible officral to transfe,r into the operating fund of the agency from local funds and federal grants sufficient monres *3 Hon. J. w. Edgar, page 3. (M-1052.)
to pay the State's share of premiums for insurance for re- tired employees, We can not consirue Section 3, however, as enabling leqislarion to ,the Texas Education Agency to pay a portion of the premiums for the insurance of its retired em- ployees.
Section 44 of Article of the Constitution III of
Texas provides .t%at the Legislature shall not grant by abpro- priation or otherwise any amourrt of money out of the Treasury of the State to any individual on a claim, or pretended, real when ,the same shall not have been provided for by pre-existing law. This provision of the Constitution has been construed to mean that the Legislature has no power to make an appropriation unless at very time the appropriation was made there existed some pre-existing law authorizing the same. Ft. Worth Cavalry ard, Controller, 835 S.W. 660 S.Ct. 1935. _Club, Inc. vs. She'ny
In Austin National Bank of Austin vs ,&eppard, 123 272 71 S.W.Zd 242 (1934)--&r Supreme Court held that Tex.
Legislature cannot appropriate State money to any individual unless at the very time the appropriation is made there is al- ready in force some valid law constituting the claim the appro- priation is made to pay a legal and valid obligation of the State.
Since Article 622&a specifically excludes retired em- ployees of the Texas Education Aqency from its provisions and there is no previous existing law similar to Subdivision B of Section 9 of Art:icle 62263, which would be applicable to the Texas Education Aqency; we must your question in the neq- answer ative.
In view of the negative answer to your first question, it becomes unnecessary to answer your second and third questions.
Subdivisi.on a of Section 9 of Article 622&l, v.cs.. does not include 'retired em- ployees of the 'Texas Education in its *4 c
Hon. J. w. Edgar, page 4, \M~-105?)
provisions unless those retired employees are members of ,the Employees Retirement System of Texas as defined in Section 2 of Article 622Sa, V.C.S. The 1971. Appropriation Bill (s.13. 11, Acts 62nd Leg., R.S.) is legally insufficient to autho:riee the Texas Education Agency to participate separately in ,the payment of prem- iums of insurance for its retired employees, there beiny no pre-existing law .to support it as required by Article III, Section 44, Consti- tution of Texas.
/;;7 Vety' truly yours, Atto$kay General of Te%as Prepared by Robert W. Gauso
Assistant Attorney General
APPROVED:
OPINION COMIITTEE
Kerns Taylor, Chairman
W, E, Allen, Co-Chairman
Houghton Brownlee
Ronnie Driver
John Grace
Jim Swearingen
SAN FcDANIEL
Staff Legal Assistant
ALFRED WALKER
Executive Assistant
NOLA WHITE
First Assistant