Untitled Texas Attorney General Opinion ( 1973 )

The Honorable Henry Rothell Opinion No. H- 75
Administrator, Texas
Employment Commission Re: Whether
’ $29 of the Texas
Austin, Texas 78701 Unemployment Compensation
Act elected coverage for all
services performed for the
State, notwithstanding the
exemptions from employment
cbntained in §%+(g)( 5) of that
Dear Mr. Rothell: Act. I9
Your request involves the construction of various statutes governing the
Texas unemployment compensation program; ‘parti263 S.W.2d 140 (Tex. 1953 ); 52 Tex. Jur. 2d,
Social Security, 5 19 et seq.
Article 5221b-17, V. T. C. S. t covers, among other things the definitions
of various words that appear in the statute. It defines “employers” and the
services considered to constitute “employment” under the Act. Prior to
1971, neither the State of Texas nor any of its instrumentalities were (or
could become) “employers” under the Act. In that year, Article 5221b-6 was
amended to provide:
p. 343
The Honorable Henry Rothell, page 2 (H-75)
“The State of Texas, a branch or department
thereof, or an instrumentality thereof may volun-
tarily elect (except with respect to a State Hospital
or a State institution of higher education) coverage
as a subject employer . . . .‘I [Art. 5221b-6(b)(2)]
At the same time, Article 5221b-17 was amended so that the definition of
“employer” would include “a hospital or an institution of higher education
. . . located in this State and operated by this State . . . for which~ services
are performed which constitute employment . . . . ” [Art. 5221b-17(f)(6)].
To the definition of “employment. ” which had previously simply excluded
all services performed in the employ of the State or its federally non-
taxable instrumentalities, ‘was added a proviso:
1, . . .. effective January 1, 1972, this exclusion
from the definition of employment is not appli-
cable 60 services performed in the employ of a
State or instrument.aIity ther,eof for. a State hos-
pital or State institution of higher education. ”
[Art. 522lb-17(g)( 5)(F)].
Already then excluded from the definition of “employment” were
services performed by”student nurses and interns employed in hospitals
‘[Art. ‘5221b-17(g)(5)(1)] , and additionally excluded thereafter were services
performed by a student working for, the school, college, or university in
which he was enrolled,:. [ Art. 5221b-17( g)( 5)(S); services performed in the
employ of a State school which is not an institution of higher education
[Art. 5221b-17(g)(5)(0); services performed in the employ of a hospital in
a State prison by an inmate [Art., 5221b-17(g)(5)(R)].
Thus, Article 5221b-17 definitions, taken alone, would require State
colleges and hospitals to become employers subject to the Act but would
exclude from coverage services rendered to them by students, etc. Other
State ~instrumentalities could elect to become employers under the Act.,
but the “service exceptions” of Article 5221b-17 definitions would auto-
matically.exclude certain employees from the elected coverage.
But another provision was at the same time added to Article 522113-6.
It provided:
p. 344
The Honorable Henry Rothell, page 3 (H-75)
“Any employing unit for which services that do
not constitut.e empl.oyment as defined in this Act are
performed may file with the Commission a writ.ten
election that all such services performed by indivi-
duals in its employ in one (1) or more distinct estab-
lishments . . . shall be deemed to constitute employ-
ment for all purposes of this Act . . . .‘I [Art. 5221b-
W)(6)].
Also added was Article 5221b-22d which reads:
“The State of Texas hereby elects, .with.
respect,to all services ,performed in the employ
of this State or:any branch nor department thereof
or aqy Jnstrumentality thereof which is not other-
wise an employer subject to this’Act,- to become.
a reimbursing employer subject to this Act, and
ali.-setices performed in the -employ of thisrstate
or .of any branch or, department or ~instriunkitality
thereof. shall be deemed to constitute employment.
This election does not apply to political subdivi-
sions of this State. ”
~. :. We views the above.Tarticle (5221by22d) .as accomplishing’ two things:
(1) it consktutes an election by the State [pursuant to Atticle.:5221b-6(b)(2)]
that all -units-of State .government not already participating ,as lemployers”
‘(even though not’defined as such by Article 522lb-17) shall become ;
“employers” &bject~‘to the Act, and (2) it constitutes a sufficient written
election under Articie 5221b-6(b)(6) that as services to units of State
government are to be considered lemployments” even though excluded
from Article 5221b-17 definitions.
Careful reading of the provisioq in Article 522Pb-6 and Article 5221b-17
having to do with~colleges and hospitals indicates that the parenthetical
exclusion of college& and hospitals [in Article 5221b-6(b)(2)] from those
units of State government entitled to elect “employer” status was intended
to signify that State colleges .and ho~spitals - at least as respects “defined”
employments - were automatically to become “employers” without the
opportunity to decline.
p. 345
The Honorable Henry Rothell, page 4 (H-75)
The complementing, expanded definition of “employer” in Article
5221b-17 did not include all State colleges or hospitals. It included a
“hospital or institution ofhigher education . . . operated by this State
. . . for which services are performed which constitute employment.
. . . ‘I [Art. 5221b-17(f)(6)]. Absent the elections of Article 5221b-22d,
State colleges and hospitals would not be “employers subject to the Act”
as respects student employees, etc. (because their services would not
constitute “employment” under the Article 5221b-17 definition), though
as to other employees rendering services within the definition, they
would be subject to it. The same is true for the definition of “employment. ‘I
Though the general Article 522113-17 “service performed in the employ of
the State” exclusion was specifically made inapplicable to State colleges and
hospitals [Art. 5221b-17(g)( 5)(F)], the specific designation of certain
services as not constituting employments (applicable to all work situations,
private or public), would affect colleges and hospitals in the absence of the
elections made by Article 5221b-22b.
Inother words, were it not for the provisions of,Article 5221b-22d,
students employed by State colleges, student nurses or itierns employed
by State hospitals, patients employed by State hospitals, etc. ,, would not
be covered by the Act.
However, it is our .opinion that the elections evidenced by Article
5221b-22d had the effect of placing,under the coverage umbrella every
service performed on behalf of the State or one ~of its instrumentalities
(excepting political subdivisions) by every-person employed by it or them,
without regard to definitions of “employer” or “employment” contained in
Article 5221b-17. While those definitions are still vital to private and
political-subdivision employers who have not themselves elected otherwise,
they are made by Article 5221b-22d inapplicable to the State or any of its
other instrumentalities, including its hospitals and institutions of higher
education. We think the election to become a reimbursing employer subject
to the Act made “with respect to all services” and on behalf of “any instru-
mentality [of the State] which is not otherwise an employer” subject to
the Act indicates an intent that employees of State hospitals and colleges
not already covered, be covered. This is reinforced by the further election
that “all services performed in the employ . . . of any instrumentality
. . . shall be deemed to constitute employment [ excepting only political
subdivisions]. ”
p. 346
The Honorable Henry Rothell, page 5 (H-75)
This construction reconciles all of the statutes, as amended, which
would otherwise seem to conflict. It is our duty to reconcile them if
possible, all the while searching for legislative intent. We believe this
construction serves that purpose. It may have been that t:he Legislature
so structured these amendments that a veto of the Bill enacting Article
522lb-22d, if it occurred, would leave State colleges and hospita1.s unaf-
fected by the general exclusion of “services performed in the employ of
the State” and on a par wi,th privately operated institutions insofar as the
operation of the unemployment compensation program was concerned.
Whatever accounts for the peculiar interlocking of the various
statutory provisions, we think this construction eliminates any surface
repugnancy between Article 5221b-22d and the other articles and obviates
any necessity to declare any of the ,statutes inoperative.
S.U M M.A R Y
The~elections noticed by Article 5221b-22d,
G.T.C.S., have the effect of making the State ‘and
all its branches, departments .or instrumentalities
(expressly excepting political subdivisions but in-
cluding hospitals and institutions of higher education)
reimbursing employers under the Texas Unemployment
Act, and bringing all services performed for them
within the coverage of the Act, whether or not such
services would otherwise constitute covered “employ-
ment” under other provisions.
Very truly yours,
OHN L. HILL
Attorney General of Texas
DAVID M. KENDALL, Chairman
Opinion Committee p. 347