Case Information
*1 The Attorney General of Texas Dezmber 31, 1985 JIM MATTOX
Attorney General Mr. Marvin J. Titmm Opinion No. JM-417
Supreme Cowl Building Executive Director P. 0. Box 12548 Texas Surplus Prollerty Agency Austin, TX. 78711. 2548 Re: Whether the Texas Surplus 512!475-2501 P. 0. Box 8120 Property Agency is subject to Telex 910/874-1367 San Antonio, Texas; 78208 section 35.405 of Title llOB, Telecopier 512/4750266 which requires reimbursement to
the general revenue fund for 714 Jackson. Suite 700 state retirement contributions Oallas. TX. 752ON506 214I742.8944 Dear Mr. Titsman:
You ask whether the Texas Surplus Property Agency must pay 4824 Alberta Ave.. Suite 164 reimbursement to the general revenue fund for state retirement El Paso, TX. 79905-2793 [91515333484] contributions pursuant to 35.405 of Title llOB, V.T.C.S., because it
receives donatiors of property from the federal government. We conclude that the provisions of section 35.405 do not apply to the 1001 Texas, Suite 700 Texas Surplus Property Agency in the situation you describe. Houston, TX. 77002.3111 7131223-5886 Section 35.4C5 provides that
(a) If an employer applies for money provided by the United States, an agency of the United States, or a privately sponsored source, and if any of the money will pay part or all of an 4309 N. Tenth, Suite B employee,'s salary, the employer shall apply for McAllen, TX. 78501-1685 any legs,lly available money to pay state contribu- 512/682-4547 tions rr,quired by Section 35.404 or 36.201 of this
subtitle. 200 Main Plaza, Suite 400 San Antonio, TX. 782052797 [51212254191] contribr,tions from an application made in accor- (b) When an employer receives money for state
dance with Subsection l(a) of this section, the employer shall immediately send the money to the An Equal Opportunity/ Affirmative Action Employer retirement system for deposit in the general
revenue fund of the state treasury. Cc) Monthly, employers shall report to the retirement system in a form prescribed by the system:
(1) the name of each employee paid in whole or part from a grant; *2 Mr. Marvin J. Titzman - Pa3e 2 (JM-417) the s#>urce of the grant;
(2) (3) the amount of the employee's salary paid from the Srant;
(4) the amount of the money provided by the grant for staz contributions for the employee; and
(5) any other information the retirement system determkxs is necessary to enforce this section.
(d) The retirement system may: (1) require from employers reports of applications Em money; (2) require evidence that the applications include requests for funds available to pay state contrit~utions to the retirement system for employees paid from the grant: and exami:le the records of any employer to (3) determine compliance with this section and rules promulg;%ted under it.
(e) A person conunits an offense if the person is an administrr.tor of an employer and knowingly fails to comply with this section.
(f) An offense under Subsection (e) of this section is a Claljs C misdemeanor.
(g) An employer who fails to comply with this section may not, after the failure, apply for or spend any money from a federal or private grant. The retirement ;qrstem shall report alleged non- compliance to t.ke attorney general, the state treasurer, the Legislative Budget Board, the comptroller of public accounts, and the governor. The attorney general shall bring a writ of mandamus against the employer to compel compliance with this section..
We consider initially the meaning of section 35.405. The Texas Supreme Court has stated t&at the dominant rule to be observed in the construction of statutes i:a to give effect to the intention of the legislature and that, generally, the intent and meaning .is obtained primarily from the language of a statute. See City of Sherman v. -
p, 1904 *3 Mr. Marvin J. Titsman - Page 3 (JM-417)
i
Public Utility Commission of Texas, 643 S.W.2d 681, 684 (Tex. 1983). See also Seay v. gall, 677?.W.2d 19, 25 (Tex. 1984). Also, the words employed in a statute are ordinarily given their plain meaning. V.T.C.S. art. 10; Attorney (General Opinion H-193 (1974).
Section 35.405 of Title 1lOB is intended to be a recodification, without substantive change, of chapter 3, section 3.63 of the Texas Education Code which originally was enacted by Bouse Bill No. 2083 of the Sixty-sixth Legislature in 1979. The specific language throughout the section in question refers to money provided from federal or private source* for emplcyees' salaries and to money provided by a grant for the state contributions to the retirement system for employees paid from a grant. The bill analysis to House Bill No. 2083 prepared for the House Committee on Public Education, on file with the Legislative Reference Library, describes that section of the bill as a new section to the Texas Education Code “to provide for the collection of federal grant money fcr the state's contribution to [the Teacher Retirement System]." Furt,ber, it is well established that penal acts and statutes imposing a penalty must be strictly construed. See 535.405(e), (f), (g); &z v. American Liberty Pipe Line Co., 172 S.W.2d 972, 974 (Tex. 1943); State v. Duke, 137 S.W. 654, 662 (Tex. 1911).
We conclude that tt,e legislature intended section 35.405 to require reimbursement to 1:h.e general revenue fund for Teacher Retire- ment contributions on salaries that are paid from money provided by grants from the United States, an agency of the United States, or a privately sponsored source. It is our opinion that the Surplus Property Agency normally do,es not receive such money.
The Federal Property and Administrative Service Act of 1949, as amended, provides that surplus personal property under the control of an executive agency of the! federal government may be transferred to a state agency which is designated by state law as the agency responsible for the fair and equitable distribution of the property in accordance with the provisions of the act. See 40 U.S.C. 5484(j). Section 484(j)(4)(D) allow:3 the state agency to assess and collect service charges from participating recipients to cover costs of the state agency's activities. The federal act requires such charges to be based on services performed by the state agency.
The Texas Legislature created and designated the Texas Surplus Property Agency as the si:ate agency for the purpose of the Federal Property and Administrative Services Act of 1949. See V.T.C.S. art. 6252-6b. 54. Its primary function is the acquisition, warehousing, and distribution of surplus federal personal property to entities that qualify under the federal act. The Surplus Property Agency may assess service charges for such acquisition, warehousing, and distribution, which are deposited in the Service Charge Trust Fund that is not part of the State Treasury. The receipts from such charges are authorized, *4 Mr. Marvin J. Titsman - Page 4 (JM-417)
as needed, for the operation of the agency. See art. 6252-6b. %4, - subsets. (1). cm).
The operating funds from which the Surplus Property Agency pays the salaries of its employees are generated by the agency's charges for the acquisition and r~~distribution of federal surplus property. The federal government's donations of surplus property generates activity that results in payment of employees' salaries and the state's liability for r,etirement contributions. The salaries, however, are not paid from the donations but from charges paid by units of local or state gt,vernment that participate in the program. Such charges are not money from federal or private grants. Hence, we conclude that section 35.405 of Title 1lOB does not require the Texas Surplus Property Agency to reimburse the general revenue fund for state ~retirement contributkns unless salaries are paid by the agency from direct grants of money to the agency from federal or private sources.
SUMMARY Section 35.4X of Title 1lOB. V.T.C.S., requires reimbur,sement to the state's general revenue fund for state retirement contributions that occur on salaries paid from money provided by federal or private grants. The funds from which the Texas surplus Property Agency Pays the salaries of its tnlployees are generated by charges to the recipientr; of federal surplus property that the agency acquires and distributes. Since such charges are not money from federal or private grants, the reinbursement requirement of section 35.405 does not ,~pply to the normal operations of the Texas Surplus Property Agency.
Very truly you J AL JIM MATTOX Attorney General of Texas JACK HIGBTOWER
First Assistant Attorney Goneral
MARY KELLER
Executive Assistant Attorney General
ROBERT GRAY
Special Assistant Attorney General
Mr. Marvin J. Titanan - Pa:ge 5 ~fncb17)
. .
RICK GILPIN
Chairman, Opinion Comitte~z
Prepared by Nancy Sutton
Assistant Attorney General