Untitled Texas Attorney General Opinion ( 1972 )

Hon. J. W. Edgar Opiinion No. M- 1051
Commissioner of Zducation
Texas Education Agent} . RF?: W11etha.rretirecd em``.ny-
201 East 11th Street. ees of the Texeis Educa-
Austin. ‘i’oxas 78701 tion Agency, who ar ,~ot
ireceivin9 ratir~merli.
benefits as melrbers ,jf
the Employees ;i'
the System.
YOU state in your letter that very few retired
employees of the Texas Educatlor, Agency and its Special Schools
are members of the Employees Pet 1rener,t :;yste:,i:
,
Hon. J. W. Edgar, page 2, (M -1052)
We quote your first question as follows:
“1.Are employees of this Agency who have
retired from active service with the State, and
who are nc,t receiving retirement benefits as
members of the Employee Retirement System,
eligible for payment of premiums on policies
containing qroup life, health, accident, acci-
dental death and dismemberment. disability in-
come replacement and hospital, surgical and/or
medical expense, equal to that of its regular
employees?"
Subdi.vi,sionA of Section 3, Article 6228a provides
that persons who are covered by the Teacher Re,tirement Act
shall not be eligible for participation in the Employees
Retirement System of Texas as defined in Section 2 of Article
6228a. Therefore, any retired employees of your agency who
are retired under the provisions of the Teacher Retirement
System are specifically excluded from Article 6228a. Sub-
division B of Sectj.on 9, Article 622Sa by its very specific
terms applies only to "member retirees" of the Employees
Retirement System of Texas. We must conclude that unless a
person 1s a member retiree of the Employees Retirement System
of Texas, the person would not be entitled to the provisions
of that system.
Section 10 of Article V of the Appropriation Bill of
1971 (S.B. 11, Acts 62nd tog.. R.S. 1971. p.V-313) is enti.ttled
"Limltationa on Use 0f Other Expense Funds for Paying Salaries
and Wages." This section has previously been construed by this
office in Attorney General's Opinion M-919 (1971), in which it
was concluded that the word "shall" in the fourth paragraph did
not make State contributions mandatory. We held that "shall"
was mandatory only in designatrnq the funds from which any con-
tribution must be made.
Sect.~,m 3 of Art'rc 1e V of the Appropria~trons Act (S.
B. 11, Acts 62nd Leq., R.S. .S971. p,V-33) authorizes the re-
sponsible officral to transfe,r into the operating fund of the
agency from local funds and federal grants sufficient monres
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Hon. J. w. Edgar, page 3. (M-1052.)
to pay the State's share of premiums for insurance for re-
tired employees, We can not consirue Section 3, however, as
enabling leqislarion to ,the Texas Education Agency to pay a
portion of the premiums for the insurance of its retired em-
ployees.
Section 44 of Article III of the Constitution of
Texas provides .t%at the Legislature shall not grant by abpro-
priation or otherwise any amourrt of money out of the Treasury
of the State to any individual on a claim, real or pretended,
when ,the same shall not have been provided for by pre-existing
law. This provision of the Constitution has been construed to
mean that the Legislature has no power to make an appropriation
unless at the very time the appropriation was made there existed
some pre-existing law authorizing the same. Ft. Worth Cavalry
_Club, Inc. vs. She'nyard, Controller, 835 S.W. 660 S.Ct. 1935.
In Austin National Bank of Austin vs ,&eppard, 123
Tex. 272 71 S.W.Zd 242 (1934)--&r Supreme Court held that the
Legislature cannot appropriate State money to any individual
unless at the very time the appropriation is made there is al-
ready in force some valid law constituting the claim the appro-
priation is made to pay a legal and valid obligation of the State.
Since Article 622&a specifically excludes retired em-
ployees of the Texas Education Aqency from its provisions and
there is no previous existing law similar to Subdivision B of
Section 9 of Art:icle 62263, which would be applicable to the
Texas Education Aqency; we must answer your question in the neq-
ative.
In view of the negative answer to your first question,
it becomes unnecessary to answer your second and third questions.
Subdivisi.on a of Section 9 of Article
622&l, v.cs.. does not include 'retired em-
ployees of the 'Texas Education Agency in its
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c
Hon. J. w. Edgar, page 4, \M~-105?)
provisions unless those retired employees are
members of ,theEmployees Retirement System of
Texas as defined in Section 2 of Article 622Sa,
V.C.S. The 1971.Appropriation Bill (s.13. 11,
Acts 62nd Leg., R.S.) is legally insufficient
to autho:riee the Texas Education Agency to
participate separately in ,thepayment of prem-
iums of insurance for its retired employees,
there beiny no pre-existing law .to support it
as required by Article III, Section 44, Consti-
tution of Texas.
/;;7
Vety' truly yours,
Atto$kay General of Te%as
Prepared by Robert W. Gauso
Assistant Attorney General
APPROVED:
OPINION COMIITTEE
Kerns Taylor, Chairman
W, E, Allen, Co-Chairman
Houghton Brownlee
Ronnie Driver
John Grace
Jim Swearingen
SAN FcDANIEL
Staff Legal Assistant
ALFRED WALKER
Executive Assistant
NOLA WHITE
First Assistant
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