Untitled Texas Attorney General Opinion ( 2018 )

KEN PAXTON
ATTORNEY GENERAL OF TEXAS
March 21, 2018
The Honorable Rod Ponton Opinion No. KP-0187
Presidio County Attorney
Post Office Drawer M Re: Authority of a county commissioners court
Marfa, Texas 79843 to implement a. health wellness plan that
includes a monthly payroll deduction for county
employees who use tobacco products
(RQ-0182-KP)
Dear Mr. Ponton:
You tell us the Presidio County Commissioners Court is considering approving a wellness
incentive plan for Presidio County ("County") employees, and you ask about its authority to
"implement a health wellness plan that penalizes county employees who use tobacco products·
through a monthly deduction off of their paycheck." 1 You describe a plan in which county tobacco-
using employees who decline to enter a smoking cessation program would have a monthly
paycheck deduction that you aver will be placed into a separate account to be spent in "any Way
that the County desires." Request Letter at 2. The Texas Association of Counties submitted
briefing to this office indicating the wellness program is offered through the Texas Association of
Counties Health and Employee Benefits Pool. 2 The Association Brief also states that the deduction
is merely an adjustment to the employee's insurance premium and that the "contributions from
county employees would presumably be, placed in the group health and related benefits fund by
the county and limited in use to paying for group health and related benefits." Association Brief
at 3, 5. The differing descriptions of the plan raise uncertainty about the exact nature of the
deduction at issue. Nonetheless, we consider the specific provisions of the Local Government
Code to determine a county's general autp.ority in this context. See Request Letter at 1-2.
A county commissioners court can exercise only such powers as the constitution or the
statutes specifically confer. See TEX. CONST. art. V, § 18; Canales v. Laughlin, 214 S.W.2d 451,
453 (Tex. 1948). Yet, "[w]here a right is conferred or obligation imposed on a [commissioners]
court, it has implied authority to exercise a broad discretion to accomplish the,purposes intended."
1Letter from Honorable Rod Ponton, Presidio Cty. Att'y, to Honorable Ken Paxton, Tex. Att'y Gen. at I
(Sept. 20, 2017), https://texasattomeygeneral.gov/opinion/requests-for-opinion-rqs ("Request Letter"). A brief
submitted in connection with your request states "that the program was not approved for implementation at the current
time." Brief from Sheriff Danny C. Dominguez at I (Sept. 29, 2017) (on file with the Op. Comm.).
2See Brief from Stan Reid, Gen. Counsel, Tex. Ass'n of Counties at I (Nov. 6, 2017) ("Association Brief')
(on file with the Op. Comm.).
The Honorable Rod Ponton - Page 2 (KP-0187)
Anderson v. Wood, 152 S.W.2d 1084, 1085 (Tex. 1941); Tex. Att'y Gen. Op. No. JC-0369 (2001)
, at 1. Relevant to your question and specific to payroll deductions, the Local Government Code
authorizes a county to, "on the request of a county employee," authorize a payroll deduction for a
number of specified purposes. TEX. Loe. Gov'T CODE § 155.00l(a); see also id. §§ 155.002
(providing requirements for employee's request for deduction), 155.003 (providing for payment
of administrative costs of making a deduction). One such purpose is the "payment relating to an
item not listed ... if the commissioners court determines that the payment serves a public purpose."
Id. § 155.001(a)(5); see also Tex. Att'y Gen. LO-90-80 (1990) at 2 (stating with respect to
predecessor statute that "any such deductions may be made only with the ... employee's written
consent"). Additionally, section 155.061 authorizes a payroll deduction for premiums for various
types of insurance policies "on the request of a county ... employee." TEX. Loe. Gov'T CODE
§ 155.061; see also id. §§ 155.062 (providing requirements for employee's request for deduction),
155.063 (providing for the administration of the deduction).
Section 157.101 authorizes a county to provide for group health and related benefits. See
id. § 157.101; see also id. § 157.102 (authorizing a commissioners court to require persons
participating in a group health plan offered by the county "to contribute toward the payment of the
plan"). Article 3 .51 of the Insurance Code also authorizes a county as a political subdivision to
insure its employees "or any class or classes thereof under a policy or policies of group health."
TEX. INS. CODE art. 3.51 § l(a). "The premium for the policy ... may be paid in whole or in part
from funds contributed by the employer or in whole or in part from funds contributed by the
insured employees." Id. You do not raise chapter 172 of the Local Government Code, but it
authorizes political subdivisions, directly or through a risk pool, to provide health and accident
coverage for officials, employees, retirees, and their dependents. TEX. Loe. Gov'T CODE
§§ 172.004, .005(a); see Association Brief at 1 (describing the creation of the Health and Employee
Benefits Pool by "political subdivisions entering into a charter interlocal agreement"). Subsection
172.013(c) authorizes a political subdivision, on written approval of the employee, to deduct from
an employee's compensation an amount necessary to pay that person's contribution for coverage.
TEX. Loe. Gov'T CODE§ 172.013(c). Nowhere in these provisions do we find express authority
for a county to deduct an amount from an employee's salary without the employee's consent on
the sole basis that the employee is a user of tobacco products.
Yet, these provisions plainly authorize a county to provide different types of insurance,
including health insurance, to its employees and to deduct an employee's portion of the premium
from the employee's paycheck with written· consent. Moreover, Insurance Code article 3.51
authorizes the county to provide insurance coverage to different classes of employees. See TEX.
INS. CODE art. 3.51; see also Tex. Att'y Gen. Op. No. JC-0414 (2001) at 2 ("The commissioners
court has discretion under [section 157.001 and article 3.51] to establish reasonable terms and
conditions of health insurance coverage for county officers and employees, subject to judicial
review for abuse of discretion."). Thus, to the extent the health wellness plan is a part of the
county's provision of health insurance and the increased deduction from an employee's salary is
because the employee, as a tobacco user, is in a class of employees for which the insurance
The Honorable Rod Ponton - Page 3 (KP-0187)
premium is higher, the deduction is likely within the county's express authority to offer insurance
and to deduct the increased premium, with consent, from the employee's salary. 3
3
This opinion is limited to an examination ofa county's authority under state statutes and does not address
whether any particular wellness plan conforms to state and federal laws governing wellness programs, including Title
II of the Genetic Information Nondiscrimination Act of 2008, Title II of the Americans with Disabilities Act, and the
HI PAA nondiscrimination provisions, as amended by the Affordable Care Act. See generally Genetic Information
Nondiscrimination Act, 81 Fed., Reg. 31143 (May 17, 20 I 6) (to be codified at 29 C.F.R. I 635) (discussing various
federal laws governing wellness programs offered by employers); see also 42 U.S.C. §§ 2000ff-2000ff- I I, 42 U.S.C.
§§ 12101-12117, 42 U.S.C. § 18001; 28 TEX. ADMIN. CODE §§ 21.4701-.4708 (Tex. Dep't of Ins., Wellness
Programs).
The Honorable Rod Ponton - Page 4 (KP-0187)
SUMMARY
No prov1s10n in the Local Government Code expressly
authorizes a county to deduct an amount from an employee's salary
without the employee's consent on the sole basis that the employee
is a user of tobacco products. Yet, pursuant to its authority to
provide health insurance to its employees under sections 157.101
and 172.013(c) of the Local Government Code and article 3.51 of
the Insurance Code, a county is likely authorized to offer, in
connection with its insurance coverage, a health wellness plan with.
an increased deduction from an employee's salary where the
employee, as a tobacco user, is in a class for which the insurance
premium is higher. ·
Very truly yours,
KEN PAXTON
Attorney General of Texas
JEFFREY C. MATEER
First Assistant Attorney General
BRANTLEY STARR
Deputy First Assistant Attorney General
VIRGINIA K. HOELSCHER
Chair, Opinion Committee
CHARLOTTE M. HARPER.
Assistant Attorney General, Opinion Committee