WVILL WILSOM

AlTORNEYGENERAL September 17, 1962

Mr. S. Perry Brown OpinionNo, WW-1440 Chairman & Executive Director Texas Employment Commission Re: Whether personswho reAustin 1, Texas ceive retroactivepayments of Old Age and Survivor Insurance are disqualified under Section 5(e)(3) of the Texas Unemployment Dear Mr, Brown: CompensationAct.

You have requested the opinion of this office concerninnwhether individualswho receive retroactive oavments of Old-Age and Survivors Insurance (hereinaftercall~d"OASI") under Title II of the Social Security Act for the same periods for which they have previouslyreceived unemployment insurance
are subject to 5(e)(3) of the a retroactive disqualificationunder Section
5221b-3(e)(3),Texas Unemployment CompensationAct (Article

V,C,S,),which provides as follows:
"Section 5. An individual shall be disqualified

for benefits2
(e) For any benefit periodwith respect to which he is receiving OP has received -- remuneratzn in the form 'of:
(3) Old Age Benefits under Title.11 of the Social SecurityAct as amended,
or similar payments under any Act of Congress, or a State Legislature; D 0 0111 (Emphasisadded,)

The above provision has been in the Texas Unemployment CompensationAct since it was first enacted, Acts,1936, 44th Lega, 3rd C,S, po 19980 It is therefore no aid to this inquiry to look to the legislativehistory of the enactment.

Since the disqualificationis operative if an individual "'is

receiving OP has received" OASI for the period for which he clafms unemploymentbenefits,we have examined the Social Security Act and regulations promulgatedthereunder to determine the nature of such benefits and the manner in which they are paid.Mr. S. Perry Brown, Page 2 (m-1440)

Title II of the Social SecurityAct--Federal OldAge and Survivors InsuranceBienefits, as amended in 

### 1961, at Section 202(a) (42U.S.C. 402(a)) provides that every individualwho (1) is a fully insured individual I as defined in Section 214(a)), (2)has attained age 

### 62, and 3) has filed application for old-age insurancebenefits or was entitled to disability insurance benefits for the month preceding the month in which he attained the age of 65, shall be entitledto
an old-age insurancebenefit for eachmonth, beginningwith the first month after August 1950 in which such individual becomes so entitled to such insurancebenefits and endingwith the month preceding the month in which he dies. ,(l) provides, Section 202(j)

in effect, that an indivi;dual meeting the foregoing ,requirements may, upon application-therefor,receive a lump sum payment retroactively, of any benefits to which he
was entitled for the preceding twelvemonths, provided such benefitswere not pr'eviously, paid to him.
Retroactivepayments of OASI are frequentlymade under the circumstancesmentioned in your opinion request, where the individual does not file his application forOAS1 until severalmonths after he has reached retirement age, but OASImay be paid retroactivelyunder othercircumstances as well. Itmay occur upon a redeterminationof the individual's application for OASI, which he may obtain upona showing of "good clause"

at any time within four years after the date of the initial determinationof the claim. See Social Security AdministrationRegulationNo. 4, Sections 404.957 -~404,963.

Retroactive paymentmay .alsobe made to an OASI beneficiarywhose checkswere temporarily suspended due to
a report of excessive earnings. See,,,Social Security Act, Section 203 (42U.S.C. 403); Regulation 404.425 of the Social Security Administrationand Social Security~~Handbook~OASI-23, 1961. Briefly stated, OASI benefitsmay be totally denied or reduced for anymonth ~1‘ months pursuant to the "retirement" test of the statute,which is applicable only to working beneficiariesunder age 72 who earnmore than $1,200 during the year. Under the regulations referred to above, the Social Security Administrationmay suspend benefit paymentswhen earnings are reported to it which would be sufficient to cause a loss of OASI benefits for somemonths of the year. Such benefitsmay later be claimed, retroactively,when it appears that the individual's earningswere not, in fact, sufficient to
cause a loss of benefits, or that he was not paid the full amount of OASI to which he was entitled.

Since a number of other stateshave statutoryprovisions similar to Section 5(e) of the Texas UnemploymentMr. S, Perry Brown, Page 3 

### Iww-1440)

Compensation Act, an examinationof the experience and practice of those states in this regardmay be useful. Five other states (Colorado,Louisiana,Missouri, Nebraska, and Oklahoma) have unemployment compensation statuteswhich, like the Texas statute, disqualify an individualwho "is receiving or has received" OASI for the same period for which he claims unemploymentbenefits.

There are no reported cases, either in this state, or in other states, in which the statutes on this specific subject have been construed, However, in two states the state Attorney General has published formal opinions on the subject. The Attorney General of the State of Oklahoma on September 15, 

### 1954, ;;c;kr$r3g Section,215(e),Oklahoma Statutes, 

### 1951,Vol.1,

, Chap, 

### 6 (which in its basic language is identical to Section 5(e) of the Texas statute) ruled that the Oklahoma Employment Security Commissionwas without authority to reconsider its original determinationawarding benefitswhen a claimant subsequentlyreceived OASI, paid retroactively,for
some of the sameweeks for which he had already collectedunemployment compensation.

I:n Minnesota, in an opinion datedMarch 

### 19, 1962,the state Attorney General ruled that under the particular statute in effect in that state (quotedbelow) unemployment compensation payments should be held in suspense until OASI claims previously filed for the same period are determined;however,,that opinion did not attempt to dealwith the situation in which unemployment benefits are both claimed and received before any claim is filed for OASI. Port.ions of an instructionmanual of the Minnesota Department of Employment Security quoted in the opinion indicate that the agency deducts OASI from unemploymentbenefits,~ or withholds benefits completely, onlywhen a claim for'OAS1 has been filed, It should be noted that the Minnesota statute specificallyprovides for ,adisqualification if the claimanthas filed a claim for OASI at the time he applies far unemployment benefits, but the agency has not attempted to,go beyond the express words of the statute to extend the disqualificationto all retroactive payments of OASI.

In three states, the unemployment compensation statutes were apparently draftedwith the specific intent of disqualifying'recipients of CASI back-pay. ~Thus,Section 

### 96,5of the Iowa Code provides that an individual shall be disqualified from receipt of unemployment compensation if he is receiving, has received, l'or is entitled to receive" OASI for the same period; SectionTO%- of the !&sconsin UnemploymentReserves and CompensationAct, Chap, 

### 1953,provides for a denial 108, Title XIII,,Wisconsin Statutes,
individual ttO of unemploymentbenefits if the

o 0 & receiving OP has claimed and will rece&e s
. 0'11 --Mr. S, Perry Brown, Pa~ge 4 (WW-1440)

O&SI; and Subsection 364) of Section 

### 268.08,Minnesota 1957, renders one ineligible for unemploymentbenefits week with respect to which he 'I0n 0 is receiving,has
or has filed a claim for o 0 0" OASI.
F&T (Emphasisadded Statutes, for any received, in each

The State of West Virginia's unemployment compensation statute at one time disqualified OASI recipientsby means of a provision identical to Section 5(e) of the Texas Unemployment CompensationAct, See ArticleVI, Sec. 4, Chap. 21A, Code of West Virginia, However, that portion of the statute disqualifying OASI beneficiarieswas repealed effective July~l, 

### 1961. We are advised by the Director of theWest Virginia Department of Employment Security that the very questionwhich is the subject of this opinionwas amatter of considerable controversyand differing views in that state before the repeal, and that when that agency attempted to make retroactive disqualificationsin
caseswhere retroactive awards of OASI covered the same periods for which unemploymentbenefitshad already been paid, the result was an administrative "headache," the establishmentof overpaymentswhich proved uncollectible in almost every instance, and undue hardship to many claimantswho had unwittingly drawn both benefits,

All of the stateshaving statutes on this subject
were recently queried by this office as to the position taken by their administrativeagencies on the effect of retroactive OASI payments on previous payments of unemployment compensation for the same periods, Replieswere received from every state to which an inquirywas directed, stating the policy or legal opinion followed, It is significant that all of the states concerned are unanimous in their disregard of retroactivepayments of OASI occurring subsequent to payment of unemployment compensationfor the same period, except for the State of Coloradowhich makes a retroactivedisqualificationonly if the individualhas an active unemployment compensation claim series from which the resulting overpayment can be deducted. It appears that Colorado's procedure represents only the administrative solution of the problem by its Department of Employment, since they,dtid

not forward a legal opinion in support of their stand in response to our request,

The Commissionerdissenting to the decision entered in Commission AppealNo, 7355-CA-60 of the Texas Employment Commission, forwardedwith your opinion request, urges that a retroactive redetermination of the individual's entitlement to unemployment ,,compensation

be made whenever it appears that he has drawn OASI for the same benefit periods for which he was previouslypaid unemployment compensation, We have made a careful search forMr, S, Perry Brown, Page 5 (WW-1440)

statutory authority
nones Section 6 of for such a redetermination,

__ but,have.found the 'I'exas

UnemploymentCompensationAct (Article 522113-4, v-C,S,) governs the filing and determination of claims for unemployment compensation, and would be the logical source of ,statutoryauthority for the redeterminationthe Commissioner suggests, but it is silent in that regard.

The disqualificationof OASI beneficiaries contained in Section 5(e)(3) of the Texas UnemploymentCompensationAct is in the nature of a conditionprecedent, One does not qualify to receive unemploymentbenefits for a givenweek, i.e., he has failed to meet a condition of eligibility,if he "is receiving
or has received" OASI for that week, When a claim is zled for -- unemployment benefits for a givenweek, and the Commission determines whether at that time the claimant is receiving or haa:re-- ceived OASI for .that week, it can inqu;re no.further into that aspect of the claim, There is no subsequent conditionto be met with respect to OASIS, It is of no consequencewhether the claimant has a potential entitlement, or a legal right, to OASI for the sameweek if he is not "receiving"OASI, and has not received it for that week,

There is no problem in determiningwhether one "has received"'

OASl for the same period for which he claims unemployment benefits, If OASI has been paid for that period, the records
are available to prove the fact, The only real problem facing
us is that of defining the fact situationsunderwhich one "is receiving" such paymentzThe word "receiving" is the present participle of the verb "receive,"which Webs
as meaning "to take posses Dictionarv defines "receive"as "to take possession or control; accept custody ofO" Thus, in order to be "receiving" something
onemust be accepting delivery of it, taking it into his possession, or ,subjectingit to his control.

The "receiving" of a thing is the end result of its delivery, transmission, or communication. Sprang v0 Prudential Life Insurance Company, 198 N.E, 585, 50 Ohio App, 451. Without such a transfer and receipt, there is no "receiving." Hallenbeck
v. Gets, 28 A, 519, 520, 63 Corm, 382,

The word "receiving,"has a plain and acceptedmeaning in common parlance, For example, it is commonly said that one is "receiving"medical treatment,meaning, not that a treatment is underway at that very moment, but rather that the process of treatment has already begun and periodic treatments are being received, It is common today for people to be "receiving"support payments from a variety of sources,public and private;we doMr, S. Perry Brown, Page 6:(h~-u+@)

not commonly think of them as "receiving" such payments until they have begun to receive them.

Both by definitionand usage, "receiving"clearly refers to the current receipt of the thing in question,,the continuingprocess of deliverywhich follows the initialpayment or transfer. We know of no case in which a court has held that onewas "receivingl' something before the process of delivery, transfer or payment had begun and at least a portion of the thing being "received"was delivered into the'control or actual possession of the recipient.

Once payment of OASI benefits has begun, the beneficiary "is receiving" them continuously thereafter, and thus is subject to disqualificationunder Section 5(e) of the Texas UnemploymentCompensationAct so long as the payments continue. It is not necessary for one to have actually received his OASI check for a givenmonth duringwhich he files for unemployment benefits in order to be subject to,.the disqualification. It may be assumed the legislaturewas aware that unemployment benefits are paidweekly while OASI is paid on a monthly basis. The disqualificationwould have had no practical effect if it had been made effective for only those weeks for which OASI had already been received. The words "is receiving" extended the disqualification to cover the continuingprocess of payment and receipt.

If the individual'sOASI payments cease, for any reason, he is no longer "receiving"them and is not subject to disqualificationfor unemploymentbenefits. As the statute is written, it is immaterialwhether he has a legal right to such OASI payments orwhether he subsequentlyreceives them by means of a retroactive payment or award.

We have seriously consideredthe view urged in the dissent to Commission decisionNo, intended to prohibit, 7355-CA-60 that the legislature absolutelyand in every case,~the receipt of OASI and unemploymentbenefits for the same periods. However,
we are constrained toffollow the plain and ordinarymeaning of the words used in the statute. The statute goes no further than to say,~in effect, that no individual shall receive at the
same time unemploymentbenefits and OASI, -- It simply does not contemplate the situationwhere OASI is paid retroactively, after receipt of unemploymentbenefits. Since the statute does not provide for a disqualification in the event of retroactive receipt of OASI, none can be supplied in t&e g$,iseof an "interpretation" of the statute, the legislature. We cannot invade the province of

In seeking to ascertain the intent of the legislature in this regard, the nature and purpose of unemployment compensationMr, S, Perry Brown, 

### Page7 W’J-1440)

should be noted, Unemployment benefits are temporary in nature, being limited'to twenty-sixweeks under present law. Themaximum weekly benefit payment is $370 Its obvious purpose and design is to provide for the immediateneeds of those who have formerly worked and find themselves, temporarily,without a job and unable to find suitabler>employment.Onewho iswithout work and without pay usually has a great immediateineedfor money. The possibility that he may receive, some time in the future, a check from the federal government for OASI benefits allocable to the same weeks for which he claims unemploymentbenefits does not help him to pay the rent or buy groceries, The-legislature could reasonably have intended to provide for such immediateneedswithout

__ regard to whether, at some future.time, the individualreceived OASI~allocable to the same period,

Experience, both in Texas andWest Virginia, has shown that a multitude of injusticesand administrative "headaches"
occurwhen the state agency attempts, through a retroactive disqualification to recover unemployment compensationpreviously paid, Certainly, the legislaturedid not intend to create;problems of this nature,

One further legal point remains to be disposed of. The dissent in Commission decisionNo, 7355-CA-60 cites, and relies upon, several cases in which individualswere required to repay unemployment compensationpreviouslyreceivedwhen they subsequentlywere paidwages allocable to the period for which they
were unemployed, e,g,, State va Rucker, 

### 126A, 2d 

### 846 (MO.App. 

### 1956);Texas Employment Commissionv. InternationalUnion of Electrical, Radio and Machine Workers, 

### 352 S0W,2d 

### 252,- Tex. 

### (1961), However, OASI benefits are not "wages,"and their retroactivepayment creates no problem of ascertainingwhether the beneficiariesare unemployed, The cases cited are concerned solelywith definition of Lhe term "unemployed"and have no relevance to our present inquiry,

Althoughwe are concernedwith the legal, rather than moral, aspects of receipt of both OASI and unemploymentbenefits for the same periods, since the dissent in Commission decision No, 7355-CA-60 urges that it is morally wrong we will point out that thirty-nine stat-es, plus Puerto Rico, allow receipt of both benefits with no disqualificationwhatsoever resulting,while
no state or territory?followethe policy suggested by that dissent, See pamphlet, Comparison of State UnemolovmentCompensation Laws, BES No, U-141 publishedby the U. S, Department of Labor, Bureau of Employment, Securitye The explanationof this may lie in the fact that unemployment compensationand OASI have little relation to one another and serve differentpurposes, The differences in administ:ration and financing of the two programs are too wel:h known to require reiterationhere.Mr. S, Perry Brown, Page 8 (WW-1440)

Congress did not see fit to make receipt of OASI dependent on non-receipt of unemploymentbenefits. Under the circumstances
we cannot agreewith the conclusionthat receipt of both benefits for the same period is, in every case,morally wrong or,so unconscionablethat the legislature could not reasonablyhave intended it,

During the last regular session of the Texas Legislature, billswere introduced in both houses (SenateBill No. 13 and HB No, 150) which would have extended the OASI disqualificationto cover any claimant of unemploymentbenefitswho "is eligible" to receive OASI, The fact that neither bill passed the legislature is at lease some indicationthat it is not the will of the legislature to disqualify claimants of unemployment benefitswho
are eligible for,, though not "receiving,"OASI.

SUMMARY

Onewho receives a retroactivepayment of Old Age and Survivors Insurance under Title~II of the Social Security Act allocable to a period for which he has previously received unemployment compensation is not subject to disqualificationunder Section 5(e)(3) of the Texas Unemployment CompensationAct and is not required to refund the unemploymentbenefits previously received,
Sincerely~ yours,

WILL WILSON Attorney General of Texas

BY
Assistant EF/fb

APPROVED:

OPINION COMMITTEE W. V, Geppert, Chairman John Reeves Elmer McVey

REVIEWED FOR THE ATTORNEY GENERAL BY: Leonard Passmore