Case Information
*1 The Attorney General of Texas December 17, 1981
MARK WHITE
Attorney General Mr. Evans N. Wentz Opinion No. ~~-409 Supreme Court Bullding Executive Director P. 0. Box 12548 State Commission for the Blind Re: Whether the Commission Austin, TX. 70711 512/475-2501 P. 0. Box 12866 for the Blind may maintain Telex 9101874-1367 Austin, Texas 78711 deferred compensation program Telecopier 51214750266 for licensed vendors 1607 Main St., Suite 1400 Dallas, TX. 75201 [21417428944] Dear Mr. Wentz:
You ask whether the State Commission for the Blind may maintain a
deferred compensation program from funds received from vending facilities located on federal property pursuant to the 4024 Alberta Ave., Suite 160 El Paso, TX. 79905 [91515333404]
The Randolph-Sheppard Act, 20 U.S.C. sections 107-107f, authorizes the operation of vending facilities in federal buildings by 1220 Dallas Ave., Suite 202 blind vendors licensed by a state agency. See also Human Res. Code Houston, TX. 77002 §§94.001-94.015. The act provides for the distribution of vending 713165OJl666
machine income on federal property. 20 U.S.C. §107d-3. It authorizes the establishment of retirement or pension plans, health insurance 006 Broadway. Suite 312 programs, and provisions for paid sick leave and vacation time from Lubbock, TX. 79401 income derived from vending facilities which accrues to the state 806/747-5238 licensing agency, but makes no reference to deferred compensation programs. 20 U.S.C. §107d-3(a). (c). It also states that any state 4309 N. Tenth, Suite B agency which desires to be designated as the licensing agency must McAllen, TX. 78501 agree that, if any funds are set aside from the net proceeds of the 512l682-4547 operation of the vending facilities, they may be used only for stated
purposes. Deferred compensation programs are not among these purposes. 200 Main Plaza, Suite 400 20 U.S.C. §107b. Thus, the Randolph-Sheppard Act itself does not San Antonio, TX. 78205 purport to authorize the establishment of a deferred compensation 5121225-4191 program. The commission, as a state agency, has only that authority An Equal Opportunity/ Affirmative Action Employer expressly granted by the constitution and statutes, or implied therefrom. Railroad Commission of Texas v. Red Arrow Freight Lines, Inc., 96 S.W.2d 735 (Tex. Civ. App. - Austin 1936, writ ref'd). Article 6252-3b, V.T.C.S., authorizes the state or any political subdivision thereof to agree, by contract, with any employee to defer, in whole or in part, any portion of his compensation. section 4 of the act provides that "[f] or the purposes of this Act, 'employee' means any person whether appointed, elected, or under contract, *2 Mr. Evans N. Wentz - Page 2 (MW-409)
providing services for the State, county, city, town, or other political subdivision, for which compensation is paid." (Emphasis added). We conclude that state-licensed blind vendors are not "employees" for the purposes of the act and that, therefore, the State Commission for the Blind is without authority to establish and maintain deferred compensation programs for them.
We construe the phrase "for which compensation is paid" to refer to compensation paid by the state. In order for any person to qualify for inclusion in the deferred compensation program. he must meet the statutory criteria. The blind vendors are not paid compensation by the state and, consequently, are not employees within the meaning of section 4 of article 6252-3b, V.T.C.S. Their income is derived from the vending facility, not from the state. Article 6252-3b provides in section 3 that payroll deductions for deferred compensation shall be made by the appropriate payroll officer. Thus, the statute contemplates that a participant in a deferred compensation program will be on the payroll of the state or a political subdivision. Section 6 of article 6252-3b states that "any sum deferred under the deferred compensation program shall not be subject to taxation until distribution is actually made to the employee." The deduction for deferred compensation is to be made before the employee receives that portion of his compensation. This program is not available to persons who operate vending facilities on federal property pursuant to the
In view of our answer to your first question, we need not answer your additional questions.
SUMMARY The State Commission for the Blind lacks authority to establish and maintain a deferred compensation program for commission-licensed blind vendors operating vending facilities located on federal property.
MARK WHITE
Attorney General of Texas JOHN W. FAINTER, JR.
First Assistant Attorney General
RICHARD E. GRAY III
Executive Assistant Attorney General
. .
Mr. Evans N. Wentz - Page 3 om-409)
Prepared by Jim Moellinger
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Susan L. Garrison, Chairman
Jon Bible
Rick Gilpin
Nancy Lynch
Jim Moellinger