WVILL WILSOM 

AlTORNEYGENERAL September 17, 1962 

Mr. S. Perry Brown Opinion No, WW-1440 

Chairman & Executive Director 

Texas Employment Commission Re: Whether persons who reAustin 1, Texas ceive retroactive payments 

of Old Age and Survivor 

Insurance are disqualified 

under Section 5(e)(3) of 

the Texas Unemployment 

Dear Mr, Brown: Compensation Act. 

You have requested the opinion of this office concerninn whether individuals who receive retroactive oavments 

of Old-Age and Survivors Insurance (hereinafter call~d"OASI") 

under Title II of the Social Security Act for the same periods 

for which they have previously received unemployment insurance 

are subject to 

5(e)(3) of the 

a retroactive disqualification under Section 

5221b-3(e)(3), 

Texas Unemployment Compensation Act (Article 

V,C,S,), which provides as follows: 

"Section 5. An individual shall be disqualified 

for benefits2 

(e) For any benefit period with respect to 

which he is receiving -- OP has received 

remuneratzn in the form 'of: 

(3) Old Age Benefits under Title.11 of 

the Social Security Act as amended, 

or similar payments under any Act of 

Congress, or a State Legislature; D 0 0111 

(Emphasis added,) 

The above provision has been in the Texas Unemployment 

Compensation Act 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 legislative history of the enactment. 

Since the disqualification is operative if an individual "'is receiving OP has received" OASI for the period for 

which he clafms unemployment benefits, we have examined the 

Social Security Act and regulations promulgated thereunder 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 Security Act--Federal OldAge and Survivors Insurance Bienefits, as amended in 1961, 

at Section 202(a) (42 U.S.C. 402(a)) provides that every 

individual who (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 insurance benefits or was entitled 

to disability insurance benefits for the month preceding the 

month in which he attained the age of 65, shall be entitled to 

an old-age insurance benefit for each month, beginning with 

the first month after August 1950 in which such individual 

becomes so entitled to such insurance benefits and ending with 

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 twelve months, provided such 

benefits were not pr'eviously, paid to him. 

Retroactive payments of OASI are frequently made 

under the circumstances mentioned in your opinion request, 

where the individual does not file his application forOAS1 

until several months after he has reached retirement age, but 

OASI may be paid retroactively under othercircumstances as 

well. It may occur upon a redetermination of 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 determination of the claim. See Social Security 

Administration Regulation No. 4, Sections 404.957 -~ 404,963. 

Retroactive payment may .also be made to an OASI 

beneficiary whose checks were temporarily suspended due to 

a report of excessive earnings. See,,,Social Security Act, 

Section 203 (42 U.S.C. 403); Regulation 404.425 of the Social 

Security Administration and Social Security~~Handbook~OASI-23, 

1961. Briefly stated, OASI benefits may be totally denied or 

reduced for anymonth ~1‘ months pursuant to the "retirement" 

test of the statute, which is applicable only to working 

beneficiaries under age 72 who earn more than $1,200 during the 

year. Under the regulations referred to above, the Social 

Security Administration may suspend benefit payments when 

earnings are reported to it which would be sufficient to cause 

a loss of OASI benefits for some months of the year. Such 

benefits may later be claimed, retroactively, when it appears 

that the individual's earnings were 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 states have statutory provisions similar to Section 5(e) of the Texas Unemployment 
Mr. S, Perry Brown, Page 3 Iww-1440) 

Compensation Act, an examination of the experience and practice 

of those states in this regard may be useful. Five other states 

(Colorado, Louisiana, Missouri, Nebraska, and Oklahoma) have 

unemployment compensation statutes which, like the Texas statute, 

disqualify an individual who "is receiving or has received" OASI 

for the same period for which he claims unemployment benefits. 

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 Commission was without authority to reconsider its original determination awarding benefits when a 

claimant subsequently received OASI, paid retroactively, for 

some of the same weeks for which he had already collected unemployment compensation. 

I:n Minnesota, in an opinion dated March 19, 1962, the 

state Attorney General ruled that under the particular statute 

in effect in that state (quoted below) 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 deal with the situation in which unemployment 

benefits are both claimed and received before any claim is filed 

for OASI. Port.ions of an instruction manual of the Minnesota 

Department of Employment Security quoted in the opinion indicate 

that the agency deducts OASI from unemployment benefits,~ or 

withholds benefits completely, only when a claim for'OAS1 has 

been filed, It should be noted that the Minnesota statute 

specifically provides for ,a disqualification if the claimant has 

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 disqualification to all retroactive payments of OASI. 

In three states, the unemployment compensation statutes 

were apparently drafted with the specific intent of disqualifying'recipients of CASI back-pay. ~Thus, Section 96,5 of 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 Unemployment Reserves 

and Compensation Act, Chap, 

1953, provides for a denial 

108, Title XIII,,Wisconsin Statutes, 

individual ttO 

of unemployment benefits 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 unemployment benefits 

week with respect to which he 'I0 n 0 is receiving, has 

or has filed a claim for o 0 0" OASI. 

F&T 

(Emphasis added 

Statutes, 

for any 

received, 

in each 

The State of West Virginia's unemployment compensation 

statute at one time disqualified OASI recipients by means of a 

provision identical to Section 5(e) of the Texas Unemployment 

Compensation Act, See Article VI, Sec. 4, Chap. 21A, Code of 

West Virginia, However, that portion of the statute disqualifying 

OASI beneficiaries was repealed effective July~l, 1961. We are 

advised by the Director of the West Virginia Department of Employment Security that the very question which is the subject 

of this opinion was a matter of considerable controversy and 

differing views in that state before the repeal, and that when 

that agency attempted to make retroactive disqualifications in 

cases where retroactive awards of OASI covered the same periods 

for which unemployment benefits had already been paid, the 

result was an administrative "headache, " the establishment of 

overpayments which proved uncollectible in almost every instance, 

and undue hardship to many claimants who had unwittingly drawn 

both benefits, 

All of the states having statutes on this subject 

were recently queried by this office as to the position taken 

by their administrative agencies on the effect of retroactive 

OASI payments on previous payments of unemployment compensation 

for the same periods, Replies were received from every state 

to which an inquiry was directed, stating the policy or legal 

opinion followed, It is significant that all of the states 

concerned are unanimous in their disregard of retroactive payments of OASI occurring subsequent to payment of unemployment 

compensation for the same period, except for the State of 

Colorado which makes a retroactive disqualification only if the 

individual has 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 Commissioner dissenting to the decision entered in 

Commission Appeal No, 7355-CA-60 of the T exas Employment Commission, 

forwarded with your opinion request, urges that a retroactive 

redetermination of the individual's entitlement to unemployment 

,,compensation be made whenever i t appears that he has drawn OASI 

for the same benefit periods for which he was previously paid 

unemployment compensation, We have made a careful search for 
Mr, S, Perry Brown, Page 5 (WW-1440) 

statutory authority 

nones Section 6 of 

for such a redetermination, __ 

but,have.found 

the 'I'exas Unemployment Compensation Act 

(Article 522113-4, v-C,S,) governs the filing and determination 

of claims for unemployment compensation, and would be the logical 

source of ,statutory authority for the redetermination the Commissioner suggests, but it is silent in that regard. 

The disqualification of OASI beneficiaries contained 

in Section 5(e)(3) of the Texas Unemployment Compensation Act 

is in the nature of a condition precedent, One does not qualify 

to receive unemployment benefits for a given week, 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 given week, 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 condition to be 

met with respect to OASIS, It is of no consequence whether the 

claimant has a potential entitlement, or a legal right, to OASI 

for the same week if he is not "receiving" OASI, and has not 

received it for that week, 

There is no problem in determining whether 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 situations under which 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 

one must be accepting delivery of it, taking it into his possession, or ,subjecting it 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 accepted meaning 

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 do 
Mr, 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 definition and usage, "receiving" clearly 

refers to the current receipt of the thing in question,,the 

continuing process of delivery which follows the initial payment or transfer. We know of no case in which a court has 

held that one was "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 disqualification under Section 5(e) of the Texas 

Unemployment Compensation Act so long as the payments continue. 

It is not necessary for one to have actually received his OASI 

check for a given month during which he files for unemployment 

benefits in order to be subject to,.the disqualification. It 

may be assumed the legislature was aware that unemployment benefits are paid weekly while OASI is paid on a monthly basis. 

The disqualification would 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 continuing process of payment and 

receipt. 

If the individual's OASI payments cease, for any 

reason, he is no longer "receiving" them and is not subject to 

disqualification for unemployment benefits. As the statute is 

written, it is immaterial whether he has a legal right to such 

OASI payments or whether he subsequently receives them by means 

of a retroactive payment or award. 

We have seriously considered the view urged in the dissent to Commission decision No, 

intended to prohibit, 

7355-CA-60 that the legislature 

absolutely and in every case,~the receipt 

of OASI and unemployment benefits for the same periods. However, 

we are constrained toffollow the plain and ordinary meaning 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 unemployment benefits and OASI, 

-- 

It simply does not 

contemplate the situation where OASI is paid retroactively, 

after receipt of unemployment benefits. 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$,ise of 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 compensation 
Mr, S, Perry Brown, Page 7 W’J-1440) 

should be noted, Unemployment benefits are temporary in nature, 

being limited'to twenty-six weeks under present law. The maximum 

weekly benefit payment is $370 Its obvious purpose and design 

is to provide for the immediate needs of those who have formerly 

worked and find themselves, temporarily, without a job and unable 

to find suitabler>employment. One who is without work and without pay usually has a great immediateineed for 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 unemployment benefits does not help him 

to pay the rent or buy groceries, The-legislature could reasonably have intended to provide for such immediate needswithout __ 

regard to whether, at some future.time, the individual received 

OASI~allocable to the same period, 

Experience, both in Texas and West Virginia, has shown 

that a multitude of injustices and administrative "headaches" 

occur when the state agency attempts, through a retroactive disqualification to recover unemployment compensation previously 

paid, Certainly, the legislature did not intend to create ;problems of this nature, 

One further legal point remains to be disposed of. The 

dissent in Commission decision No, 7355-CA-60 cites, and relies 

upon, several cases in which individuals were required to repay 

unemployment compensation previously received when they subsequently were paid wages allocable to the period for which they 

were unemployed, e,g,, State va Rucker, 126 A, 2d 846 (MO. App. 

1956); Texas Employment Commission v. International Union of 

Electrical, Radio and Machine Workers, 352 S0W,2d 252, - Tex. 

(1961), However, OASI benefits are not "wages," and their 

retroactive payment creates no problem of ascertaining whether 

the beneficiaries are unemployed, The cases cited are concerned 

solely with definition of Lhe term "unemployed" and have no 

relevance to our present inquiry, 

Although we are concerned with the legal, rather than 

moral, aspects of receipt of both OASI and unemployment benefits 

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, p lus Puerto Rico, allow receipt of both 

benefits with no disqualification whatsoever resulting, while 

no state or territory?followe the policy suggested by that 

dissent, See pamphlet, Comparison of State Unemolovment Compensation Laws, BES No, U-141 published by the U. S, Department of 

Labor, Bureau of Employment, Securitye The explanation of this 

may lie in the fact that unemployment compensation and OASI 

have little relation to one another and serve different purposes, The differences in administ:ration and financing of the 

two programs are too wel:h known to require reiteration here. 
Mr. S, Perry Brown, Page 8 (WW-1440) 

Congress did not see fit to make receipt of OASI dependent on 

non-receipt of unemployment benefits. Under the circumstances 

we cannot agree with the conclusion that receipt of both benefits for the same period is, in every case, morally wrong or,so 

unconscionable that the legislature could not reasonably have 

intended it, 

During the last regular session of the Texas Legislature, 

bills were introduced in both houses (Senate Bill No. 13 and HB 

No, 150) which would have extended the OASI disqualification to 

cover any claimant of unemployment benefits who "is eligible" to 

receive OASI, The fact that neither bill passed the legislature 

is at lease some indication that it is not the will of the 

legislature to disqualify claimants of unemployment benefits who 

are eligible for,, though not "receiving," OASI. 

SUMMARY 

One who receives a retroactive payment 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 

disqualification under Section 5(e)(3) of the 

Texas Unemployment Compensation Act and is not 

required to refund the unemployment benefits 

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