Untitled Texas Attorney General Opinion ( 1984 )

The Attormy General of Texas
C’ctober 3, 1984
JIM MATTOX
Attorney Gendral
Supreme Cowl BulldIng Hr. Ray K. Procun:ic!r Opinion No. JM-205
P. 0. BOX 12548 Director
Austin. TX. 7E?ll- 2549 Texas Department o:! Corrections Re: Benefits available to
512/475-2531 P. 0. Box 99 employees of schools operated
Telex 910!674.1367
Telecopier 512/4750266
Huntsville. Texas 77340 by Department of Corrections
for inmates
714 Jackson, Suite 7M) Dear Hr. Procunie:: I
Dallas. TX. 75202-4506
214/742-8944
Your predecessor in office asked several questions about the
benefits availabll? to employees of the schools for inmates established
4824 Alberta Ave., S&e 164 and operated by tte Texas Department of Corrections under chapter 29
El Paso, TX. 799082793 of the Education Code. The provisions of chapter 29 are as follows:
916l6.33.3464
529.01.
1001 Texas. Suite 700
Houston. TX. 77002.3111 The lloard of Corrections may establish and
7131223-5888 operate schools at the various units of the
Departm’z!lt of Corrections.
606 Broadway. SuWs 312
Lubbock. TX. 79401.3479
129.02
SW7476239
All persons incarcerated in the Department of
Correcttons who are not high school graduates are
4309 N. Tenth. Suite S
McAlle”. TX. 78501-1695
ellgiblz to attend such schools.
5121882.4547
129.03
200 Main Plaza. Suib 400
The Board of Corrections may accept grants from
San Antonio. TX. 7820527’97
512l225.4191
both public and private organizations and expend
such fluids for the purposes of operating the
schools.
An Equal OppOrtUnitYI
Affirmative Action Employer 529.04
The total cost of operating the schools
authoricEd by this chapter shall be borne entirely
by the state and shall be paid from the Foundation
School Program Fund. Such costs shall be con-
sidered annually by the Foundation School Fund
Budget (lommittee and Included in estimating the
funds needed for purposes of the Foundation School
Program. No part of the operating costs herein
p. 919
a
Mr. Ray K. Procunier - Page 2 (a-205)
provided for shall be charged to any of the school
districts of this atate.
129.05
A formula for ::lle allocation of professional
units and other operating expenses shall be
developed by the Central Education Agency and
approved by the State Board of Education.
Acting under this authority, the Board of Corrections established
the Windham schools in 1969. designating itself the Board of Trustees.
Minutes of Texas Board of Corrections, November 3, 1969.
Your first question concerns benefits provided by the General
Appropriations Act of 1983, while your other questions relate to
benefits available under general statutes. We will first deal vith
your questions on general law and then consider the appropriations act
provisions.
Tour second question is as follows:
2. When a conflict exists between the policies
of the Texas Department of Corrections and those
of the Texas Edwation Agency with regard to
Wlndham School System employees, which prevails?
It is suggested that section 1.04 of the Education Code controls the
answer to this question. Section 1.04(a) of the code provides that
[t]hls code shall apply to all educational
institutlons supported either wholly or in part by
state tax funds unless specifically excluded.
Chapter 29 of the Education Code does apply to the Windham
schools, but it is not clear that section 1.04(a) renders any other
Education Code provision applicable to these schools. The Board of
Corrections refers to the whool program as a “school system” or
“school district” and has named itself the Board of Trustees for the
Windham School System. Nwice of Open Meeting, Department of
Corrections Board, September 12. 1963. 8 Tex. Reg. 3361 (1983);
Minutes of Texas Board of Corrections, November 3, 1969. See Attorney
General Opinion MW-363 (1981). Despite this nomenclature,-& Windham
schools are very different from the public schools established under
the Education Code. The Windham schools are governed by the board of
a state agency. not by the elected trustees of a school district. See
Educ . Code 5923.25. 23.26. They are operated by the prison system.
not by a political subdivision. See Kings Estate v. School Trustees
of Willacy Co., 33 S.W.2d 783 (Texxiv. App. - San Antonio 1930, writ
ref’d).
p. 920
Mr. Ray K. Procunier - Page :I (m-205)
Because of the special population they serve, the Windham schools
also operate differently from the typical public school subject to the
Education Code. For examplar, Department of Corrections schools are
operated year round. See Allocation of Personnel Units to the
Department of Correctloos approved by State Board of Education,
September 13, 1975. To be eligible, a student must attend not less
than six hours a week, must m)t have graduated from an accredited high
school, and must be able tc profit from the program. Id. Numerous
Education Code provisions applicable to educational institutions for
school-age children could not apply to the Windham schools. See,
a, Educ. Code chs. 17, 13 (county administration); ch. 20 (school
district funds); ch. 21 (provisions on admission, attendance,
transfers, kindergarten, suspensions, consolidated elections).
We do not believe section 1.04 offers any guidance as to which
Education Code provisions o,:her than sections 29.01 through 29.05
apply to the Windham School System. However, section 29.05 provides
that the Texas Education Agency shall develop a formula for allocating
professional units and 0the.c operating expenses in the Department of
Corrections schools. Reasonable regulstio%3 affecting Windham
employees made by the Tess8 Education Agency pursuant to this
provision would prevail over a contrary Department of Corrections
policy. Otherwise, in the absence of other legislation governing
benefits for or restrictions on the Windham employees, the Board of
Corrections has authority tc establish working conditions under its
power ~to operate the schools. Educ. Code 129.01; see generally
Attorney General Opinions R-786 (1976); E-659 (1975).
You next ask:
3. Can Windhas School System employees be
granted a 180-day lrinimum leave of absence without
pay benefit when 'lexas Department of Corrections
employees are limfted to only a six weeks' minimum
benefit?
Section 13.905 of the Education Code provides school district
employees with leave time fcr temporary disabilities. The governing
board of a school district may establish a maximum length for a
disability leave, which shall not be "less than 180 days." Educ. Code
§13.905(f). To our knowledge, the Texas Education Agency has not
imposed a similar requirement on the Windham schools under its
authority to allocate professional units and operating expenses.
Until this agency establir.tes a reasonable regulation pursuant to
section 29.05 of the Educzltion Code, the Board of Corrections has
authority under section 2!1.01 to establish the minimum period of
disability leave for Windhalo school employees. However, the Board of
Correction& may give teachers in the Windham schools a longer term of
disability leave than it gives other employees if there is a
reasonable basis for the diritinction.
p. 921
Mr. Kay K. Procunier - Page di (J-M-205)
Your fourth question is iw follows:
4. For purposes of workmen's compensation
benefits and group :lnsurance benefits, are Windham
School System emplo:rees bound by the same rules aa
other (non-Windham) employees of the agency?
The Board of Correctiow. as trustees for the Windham schools,
has authority to hire and f,L::e school employees. Educ. Code 529.01.
See Minutes of Texas Board of Corrections, September 12, 1983 at 719. I
EZeover , the Windham schools are supported by legislative
appropriation. Their financing comes under the Foundation School
Program, which normally in,z.ludes state available school funds and
school district ad valorem 1:xes as well as state appropriations for
public education. Educ. Coch! 516.251. However, the Windham schools
may only receive the latter ~:ype of funding. Their students are for
the most part too old to btr,efit from the available fund. See Tex.
Coast. art. VII, 05; Educ. Code §§15.12. 21.031. Further,yction
29.04 provides that &he Windham schools' operating costs may not be
charged to local school distclcts. ~Thus, because Windham teachers are
hired and fired by the Board of Corrections and paid from state
general revenues, they are as a general matter state employees.
Article 8309g. V.T.C, S., provides workmen's compensation
insurance for state employe,:.;. "Employee" includes a person in the
service of the state pursuant to appointment or an express contract of
hire. We believe Windham schDo1 employees come within this definition
and qualify for workmen's compensation benefits under article 83098.
Article 3.50-2 of the Insurance Code provides for uniform group
insurance benefits for "all employees of the State of Texas." Sec.
2(a). An "employee" includes an appointive employee in the service of
the state who receives compt:r.sation on a warrant issued pursuant to a
payroll certified by a de?.wtment of the state. Ins. Code art.
3.50-2. 13(5)(A)(M). We a::,! informed that an agent of the Board of
Corrections certifies the pil:rroll for the Windham schools. Based on
this information, we conclude that employees of the Windham schools
are entitled to uniform groull insurance benefits under article 3.50-2
of the Insurance Code.
Your fifth question is as follows:
5. Does the Texas Department of Corrections
have the authorit:{ to limit leave of absence
without pay benej'its to a level less than the
maximum allowed by law or by the rules of the
Uniform Group Insurance Program?
The Employees Retirement System has issued the following rule under
article 3.50-2 of the Insurance Code:
u. 922
Mr. gay K. Procunier - Psge !i (a-205)
An employee in M approved extended sick leave
without pay status or in an approved leave of
absence without pay status may continue the types
and amounts of coverage in effect on the date the
employee enters t:t,at status for a maximum period
of 12 months.
34 T.A.C. 581.5(f)(5) (198:!:1. This rule governs the continuation of
insurance coverage for an Inbployee on unpaid leave pursuant to other
law. It sets a maximum time that an employee may continue coverage
during unpaid leave, but ices not purport to establish the term of
leave. Thus, this rule does not restrict the Board of Corrections’
power to establish leave-of-sbsence policy for its employees.
We finally turn to your question about benefits under the general
appropriations act. General Appropriations Act, Acts 1983, 68th Leg.,
ch. 1095. art. V. at 6171. This question is as follows:
1. Are all Windham School System employees
subject to all t:t,e benefits and restrictions in
article V [of the current general appropriations
act]? If not, are any of their employees so
included?
The appropriations act may include only items of appropriation
and riders directing, limi ::Lng, or detailing the use of appropriated
funds. Tex. Const. art. III, 535; Jessen Associates v. Bullock, 531
S.W.2d 593 (Tex. 1975); Fu:.moie v. 1Lane, 140 S.W. 405 (Tex. 1911);
Attorney General ODini’L%- V-1254 (1951). Provisions enacting.
repealing, or amending other laws may not- be included in a general
appropriations act. Moore v. SFpa;d, 192 S.W.2d 559 (Tex. 1946);
Attorney General Opinions .1&64 1983 ; M-1199 (1972); V-1254 (1951).
A rider to the appropriations act thus cannot operate as an isolated
provision of law but mur:f. relate to an item of appropriations.
Section 1 of article V reccgnizes this well-established doctrine.
The provisions set forth in this and all other
Articles of thi.E Act are limitations on the
appropriations m&ee in this Act.
There are a number of riders in article V which provide benefits
or establish restrictions f’cmrstate employees. General Appropriations
Act, Acts 1983, 68th Leg.. zh. 1095. art. V. 01 at 6171 (salaries for
classified employees of ccxtain agencies); 57 at 6203 (holidays for
state employees); 58 at 62(1l, (vacation and sick leave for employees of
the state); 512 at 6208 (travel by employees of agencies). These
riders detail the salaries or benefits payable to state employees;
they are germane to appropriation items which provide compensation for
state employees.
p. 923
Mr. &y K. Procunier - Page '5 (JM-205)
Section 29.04 of the I:i.ucation Code provides that the cost of
operating schools for inmates shall be paid from the Foundation School
Program Fund. Those funds z:e appropriated in part in the following
items:
TFXAS CENTRALFDUCKIIONAGENCY- PROGRAMS
1. Foundation SchoDL Program Allocations
to Local Schools
a. Regular Program, estimated
b. Vocational Eiucation
c. Comprehensive Special Education
. . . .
Acts 1983, 68th Leg., ch. 1095, art. III at 6028. Host of these funds
go to school districts or regional programs and thus are not used to
compensate state employeefi. However, a small portion of the
appropriation will be used I:(# compensate the state employees hired by
the Board of Corrections to operate the Windham schools. Thus,
article V riders detailing benefits and restrictions for state
employees are germane to thl.ri appropriation because the appropriation
provides compensation for some state employees. These riders are not,
however, applicable to school district employees, who are not state
employees.
A valid rider is not necessarily identical in scope with a single
item of appropriation. For example, Attorney General Opinion V-1254
(1951) found constitutional the perennial rider prohibiting the use of
appropriated funds to pay saLary to "any employee who uses alcoholic
beverages while on active duty." See Acts 1983, 68th Leg., ch. 1095,
art. V. 510 at 6208. This apinion~o found constitutional riders on
rates for travel expense to be paid from appropriated funds to state
employees. Travel expenses 'nay be paid out of an appropriation item
designated "contingent exp~lse"; the item need not be allocated
exclusively for travel. See Attorney General Opinion V-50 (1947); see
also Letter Advisory No.x':1973) (appropriation drafted to condense
detailed language formerly used).
Windham school employees are entitled to the benefits for and are
subject to the restrictions on state employees found in article V of
the General Appropriations I,ct.
SUMMARY
The Board of ~:~,rrections has authority under
section 29.01 of the Education Code to establish
working conditions for employees of the Windham
schools, absent a contrary policy established by
the Texas Education Agency under section 29.05 of
the code. The Bo.a,rd of Corrections may establish
.
p. 924
Mr. Ray K. Procunier - Page ;' (31-205)
the term of disability leave for Windham school
employees and is nor: bound by section 13.905(f) of
the code. Windham employees are state employees
entitled to insurance benefits under article
3.50-2 of the Insu,r+mce Code and to workmen's com-
pensation benefits under article 83098. V.T.C.S.
The Employees Retirizment System rule on employee's
continuation of iuourance coverage during unpaid
leave does not affect the Board of Corrections'
power to establish zhe time period of unpaid leave
for its employees. The Windham school employees
are subject to riders in article V of the General
Appropriations Act which apply to state employees.
-J I H MATTOX
Attorney General of Texas
TOMGREEN
First Assistant Attorney General
DAVID R. RICHARDS
Executive Assistant Attorney General
Prepared by Susan L. Garrison
Assistant Attorney General
APPROVED:
OPINIONCOMMITTEE
Rick Gilpin. Chairman
David Brooks
Co110 Carl
Susan Garrison
Jim Hoellinger
Nancy Sutton
p. 925