Untitled Texas Attorney General Opinion ( 1940 )

Honorable Julian Montgomery State Highway Engineer dusttn, Texas Dear Sir: Opinion No. O-1968 Re: Legality of a plan of group insurance for employees of the Highway Department. You have previously requested an opinion of this de- partment concerning the legality of a plan of group insurance for employees of the Highway Department. The'plan as previous- ly submitted provided for the Issuance of a``warrantby the Comptroller of Public Accounts to the insurance company, which warrant would be made up of the various payments deducted from the salary warrants of the numbers of the insurance group. The proposed plan which you submitted necessitated, as you stated fn your letter, the use of various employees of the Highway Department to facilitate the same. Therefore, this department, ln Opinion No. o-1755, ruled that the plan could not be put fnto effect because it called for the use of State employees for a private purpose. In your letter of February 13, 1940, you have resub- mitted your question concerning the legality of such a plan of group"insurance leaving out the objectionable feature of the first plan above pointed out. In your second letter you ask the following questions: "(1) Would it be legal for an insurance com- pany to issue a policy of group insurance to employ- ees of the Highway Department, which included life insurance? The Department, of course, could not pay any portFon of the premium. "(2) Can any portion of an employee's wages or salary, when assignment has been given, be paid to someone else?" In,answer to your first question, you are advised tha~t Article 4764a of the Revised Statutes reads, In part, as fol- lows : “Set . 1: Group life insurance is hereby de'- Y Honorable Julian Montgomery, page 2 o-1968 clared to be that form of life insurance covering not less than 25 employees written under a policy issued to the employer, the premium for which is two be paid by the employer or by the employer and em- ployees jointly . . .'I You are therefore advised that under the above.quoted Article group insurance which would include life insurance coverage may.not be taken out unless at least part of the premium is pald by the employer. Of course; the State Hlgh- vay Department is unauthorized to make any such payment. You are therefore advised that such a proposed plan of group ln- surance may not be adopted by employees of the Highway Depart- ment. The answer to your second.question presents a much more difficult problem. According to the plan submitted It would be necessary for the Comptroller of Public Accounts to have the authority to issue a warrant to a third person In pay- ment of a partial salary assignment. It is the opinion of this department that the Comptroller has no such authority and that he is allowed to issue a warrant only in the name of the employee himself. Our conclusion in this respect is based up- on an analysis of our statutes which authorize the Comptroller to Issue pay warrants and authorFze hFm to keep books and re- cords showing such payments. Article 4358 of Vernon's dnno- tated Civil Statutes reads as follows: "The'~Comptrollershall have printed uniform pay warrants, which shall be of three classes: 'general,' 'special' and 'pension.' Such warrants shaI1 be prepared in duplicate, and shall be marked"origina1' and 'duplicate,' respectively; and each class shall be serially numbered and shall be of a color of paper different from the other class. A separate .serFesof numbers may be used for warrants Issued for payrolls to be paid from the General Revenue Fund, and for warrants Issued for claims to be paid from 'highway' or other special funds, when the Comptroller deems such special series of members advisable. Such warrants shall be prepared so as to provide for entering thereon in addition to other appropriate matters, the following: "1. Initials of the person in the Comptroller's Department comparing the warrant with the claim. "2. Designation of the fund against which the warrant is drawn. c - Honorable Julian Montgomery, page 3 o-1968 “3 . Appropriation against which disbursement is to be charged." Article 4359, V.A.C.S., reads in part as follows: "The Comptroller'shall provide a pay war- rant register for each class of pay warrants, each volume of which shall be approprLately de- signated by class, number or otherwise. When a pay warrant is prepared, Ft shall be'reglstered in the pay warrant register for the class to which it belongs; and such reglstery shall-con- sist of an entry of the amount of the warrant, name of the payee, appropriation to which charged, and such other information as may be deemed ad- visable by the Comptroller." Senate Bill No. 427, Acts, 46th Legislature, 1939, is commonly called the Departmental Approprlatlon Bill. Said Act provides in part as follows: "Salary and other ProvIsIons, (a) All an- nual salaries shall be paid In twelve (12) equal monthly Installments, unless otherwise provided herein. . . . . "Salary Payments. No salary for which an appropriation is made herein shall be paid to any person unless such person actually dis- charges assigned duties. Every month the head of each department shall attach to the payroll for his department an affidavit, under oath, stating that the persons listed in said payroll actually performed the duties for which they were being paid. The Comptroller shall not ls- sue warrants for the payment of se'larleslisted on said payroll unless this affidavit is filed with him. Each department haad shall number consecutively the salaried positions in his de- partment for whkh an appropriation is made herein (either out of the General Revenue Fund, fees, receipts, special funds or out of other funds available for use by said department) and opposite the number of the position, he shall set out the title of the position and the name of the person employed to fill the same. This statement.shall be filed withythe Comptroller, who shall;when Issuing his warrant to any em- ployee in payment of salary due said employee, number the warrant with the same number that is Honorable Julian Montgomery, page 4 o-1968 assigned to the position filled by said employee...." An analysis of the duties of the Comptroller in the issuance of pay warrants as stated in the above quoted Articles indicates, ln‘the first place, that salaries are to be paid in twelve (12) equal monthly installments. Each warrant drawn shall be paid only in pursuance of an affidavit fLled by~the head of a department with the Comptroller. When the Comptrol- ler issues the warrant the same shall be numbered with the same number that is assigned to the position filled by the employee. It is to be noted-.inthis respect that this por- tion of the General Appropriation Bill reads: "when Issuing his warrant to any employee In pay- ment of salary due." This language clearly indicates that the warrants are to be is- sued to the employees themselves. An accurate system is then set up'by which the warrants are registered by the Comptroller and records are kept on all salaries paid which records corres- pond to the actual warrants Issued. It can be seen from the above discussion that the legislative plan for the Issuance of pay warrants would be greatly~hampered by the Comptroller having to recognize a par- tial assignment of wages and having to issue one warrant to the employee and another to a third party who is the assignee of the employee. To carry this same reasoning further, sup- pose the employee assigns several portion~sof‘his wages tom several different Individuals. This would require the Comp-~ trollerWto issue'to each a separate warrant for his partlcu- lar portion. Even if the Comptroller could do this under the law and could fssue the warrants to the insurance company as contemplated in your plan 'itwould require extra work on the part of some of his employees to keep the books straight. It ls the opinion of this department that the employees of the Comptroller are unauthorized to do this work. In ef- fect, such employees would be performing private services for private Individuals, while being paid by the State. It is the opinion of this department, therefore, that the Comptroller of Public Accounts is unauthorized to issue warrants to the insurance company as contemplated In the pro- posed plan of group insurance which you submit. . - - Honorable Julian Montgomery, page 5 o-1968 Yours very truly ATTORNEY GENERAL OF TEXAS By s/Billy Goldberg Billy Goldberg Assistant BG: jm:wc APPRO-m MAR 8, 1940 s/Gerald C. Mann ATTORNEYGENERAL OF TEXAS Approved Opinion Committee By s/BWB Chairman