*1
Rollins,
Admin.,
D. Keith
Of-
Waco,
Counsel,
Collins,
fice Dist.
Marvin
VETERANS
McRoberts,
Atty., Roger
U.S.
Office of
ADMINISTRATION, Petitioner,
Lubbock,
Atty.,
petitioner.
Stephens, Montgomery,
Kerwin B.
Ste-
Milagros Lingad KEE, Respondent.
phens
Crawford) Graham,
Collier,
John
Lubbock,
respondent.
WALLACE,
Court of Texas.
Justice.
appeal
attempt
arises from an
1986.
garnish
Kee to
Adminis-
tration payable
her
Henry
ex-husband
Kee. Mr. and Mrs. Kee
Washington
were divorced in the State of
subsequently
and he
moved to Texas. Mr.
Kee was found
the Texas trial court to
be delinquent
in child
payments
$3,456.30.
in the
trial court ordered
of a
tion of Mr. Kee’s
benefits each
$3,456.30 paid.
month until
The court of
appeals
judgment
affirmed the
of the trial
court.
benefits are con rule, trolled general federal law. As a government gar entities are immune from however, Congress, nishment. provided immunity by limited waiver of that enacting 659(a) 1983) (Supp.I 42 U.S.C. § pertinent part: which states in Notwithstanding any provision other moneys (the of law ... entitlement which is based remuneration for from, employment) payable by, due the United States ... shall be ... legal process brought for the enforce- ment, against legal such individual his obligations alimony payments. (Emphasis make added). years later, Congress enacted 662(f)(2)(1982) expressly ex-
cludes veterans benefits from moneys employment: received from any compensation except paid by ... Veterans’ Administration to former member of the Armed Forces who is in *2 (1985); receipt pay a if Administration retired or retainer and the Veterans por- procedure disability apportioning such former member has waived a for bene- pay of his retired in order to to children of a disabled tion receive fits the minor veteran, compensation. such veteran who not live with the does 3.450 Section C.F.R. Ch. § military retirement Mr. Kee waived all his 659(a) clearly intent indicates the of Con- larger pay in to order receive a as (entitlement gress wages to make current disability Veterans benefits. Administration upon of employment) based remuneration question The us Mr. for is whether Kee pur- garnishment to for the limited subject purview part of that of 42 comes within the pose support child paying court ordered states that when a U.S.C. which alimony. Act law in 1975. and became of his retirement portion veteran waives a years passed later disability benefits the benefits received subject extended benefits which subject to therefore become in garnishment disability to to benefits put way, To it another is has a cases where waived all, portion synonymous whether is with a in of his retirement order to benefits urged by as Mrs. Kee. eligible disability for benefits. Follow- Administration distin- Veterans Act, ing the enactment the latter analogy guishes by the two situations be- Management promul- Office of Personnel ranking high a career officer who tween 581.103(c)(4)(iv) gated 5 which C.F.R. § portion a his taxable retire- has waived if a all of his states that veteran waived in order to receive a like ment benefits in dis- order to receive retirement benefits benefits, disability amount of non-taxable disability are ability benefits the ranking medically and a lower disabled subject garnishment pay to child not to all of his retirement veteran who waives alimony. The Veterans Admin- greater to a benefits in order receive promulgated C.F.R. istration has also In the case amount in benefits. seq., provides Ch. which officer, ranking high of the disability ben- apportionment of a veteran’s likely Administration that it is he contends ap- proper to his minor children receiving in would be retirement benefits proof of plication and need. benefits; excess the maximum receiving that Mr. Kee also We note only portion therefore a of the retirement benefits, subject Security which are Social the remain- waived and benefits would be law, part. and a garnishment by to federal gar- ing subject to portion would thus be garnished Mrs. Kee has been nishment. The Administration monthly in in of the child an amount excess ranking or further contends that the lower by the ordered Wash- and medically be draw- disabled veteran would ington court. trial ing retirement benefit and a much lower likely all of be more thus would all When consider above we get in order to retirement benefits those we find an intent regulations, statutes and greater amount in Congress to for the part on argues that this Administration At the same support. child payment of congressional with the keeping would be in time, that dis Congress intended assure policy that secured to them would have abled veterans for the benefit of veteran. extent neces disability benefits their needs. care of their essential sary it to take question, this In order to resolve intent, Congress provid this accomplish To necessary to examine the cur 659(a); ed defined 42 U.S.C. that retirement tent behind garnishment wages, subject 662(f)(2); rent regulations issued the Office alimony. and payment Management, of Personnel provided that if veteran Congress further enforcing the Federal Child charged with elects to fore- receiving Act, 581.103(c)(4)(iv) retirement 5 C.F.R. Support go portion of light those retirement benefits In regulatory above, a like amount of tax free scheme set out we hold that disabili- ty those benefits so ac- received a veteran return having for his all quired waived his retirement benefits are not *3 particular wording We hold that this the court the statute secures to a disabled veteran judg- and the trial court are reversed rights. certain If his retirement benefits ment is that rendered Kee be equal do not or exceed the maximum dis garnishment against denied ability right he has the Administration. all the retirement benefits. This allows higher amount in dis GONZALEZ,J., dissents. ability benefits, making without those ben This is con GONZALEZ,Justice, dissenting. holding sistent with the of the United I respectfully dissent. never States Court that statutes waiv intended to veterans with a mecha- ing immunity construed, be nism to avoid their child obli- U.S., 25, 17, 342 McMahon v. 72 S.Ct. gations. majority’s acceptance (1951), 96 L.Ed. holding and with the interpretation VA’s of 42 U.S.C. § this court that solely ignores public making policy in favor of use of the disabled veteran. Ex parents accountable for of their Johnson, 453, (Tex. Parte 591 S.W.2d am opinion children. I that 1979). replace extent retire- reasoning, Pursuant to the above the Of garnished. ment they can be fice of Management Personnel issued its I would affirm the of the court regulation stating that appeals. would not if the veteran waived all his retirement benefits
in order to receive the
This is interpretive regulation op an
posed regulation and as
such does not have the effect of a statute.
However, interpreting statute, give great regula court will deference to a ANTONIO, Petitioner, CITY OF SAN interpreting regula the statute if that tion is a governmental issued v. charged with administration of the statute. SCHAUTTEET, al., Raymond et Smail, General Corp. Electric Credit v. Respondents. (Tex.1979); also, S.W.2d see Udall Tallman, 792, 380 U.S. 85 S.Ct. L.Ed.2d 616 Supreme Court of Texas. Further evidence 19, 1986.
tent that should be narrow exception prohibition to the apportionment benefits is the
procedure of the Veterans Administration
found in seq. 38 C.F.R. Ch. procedures
Those are available in instances
where the veteran’s
essential for of his minor children.