September 2, 1955 

Honorable John H. Winters 

Executive Director 

Opinion No. s-172 

State Department of Publia Welfare Rc: Eligibility of emplogAustin, Texas ees of State institutions of higher learning 

for Social Security 

Dear Mr. Wintersr coverage. 

You have requested an opinion on the following questions: 

"1. Are the employees (Including those subject 

to the Teacher Retirement System) of the University 

of Texas and ,the other State administered institutions of higher learning eligible for Social Security aoverage under the definition as set out in 

Section 1 Subsection (c) of House Bill No. 666, 

Chapter 4&, Acts of the 54th Legislature, and, 

therefore, must be mandatorily included along with 

other eligible State employees? 

"2 . Are the employees (including those subject 

to the Teacher Retirement System) of the University 

of Texas and other State administered Institutions 

of higher learning eligible for Social Security 

coverage under the terms of Sections 1 and 2 of 

House Bill No. 709, Chapter 501, Acts of the 54th 

Legislature? 

"3 . Are the employees (excluding those subject 

to the Teacher Retirement System) of the University 

of Texas and the other State administered institutions of higher learning eligible for Social Security 

coverage under the terms of Sections 1 and 2 of House 

Bill No. 7097 

"4 . If your opinion or ruling to question number 

2 is affirmative, then is there a specific appropriation for the matching contrlbutillrller? If so, Is such 

appropriation provided for In House Bill No. 6661 
Hon. John H. Winters, page 2 (S-172) 

“5 . If, in your opinion, the University of 

Texas and other State administered institutions of 

higher learning are not instrumentalities of the 

State and are not juristic entities, and therefore 

do not come under provisions of House Bill No. 709; 

and if in your opinion they are not State institutions in the usual meaning, then would their employees (excluding those subject to the Teacher Retirement S stem) come under the provisions of House 

Bill No. 6 l 6 for mandatory coverage?" 

House Bill 666 authorizes the State Department of 

Public Welfare to enter into agreements with the Secretary of 

Health, Education and Welfare to obtain Federal old-age and 

survivors insurance (hereinafter called OASI) coverage for 

State employees. Section 1, Subsection (c) of House Bill 666 

defines the term "State employee' as follows: 

"(c) The term 'State employee' in addition to 

its usual meaning shall include elective and appointlve officials of the State, but shall not include those persons rendering services in positions, 

the compensation for which Is on a fee basis. ,The 

term 'State Employee' shall not include any employees 

in position subject to the Teachers Retirement System 

except those employed by State departments, State 

agencies, and State institutions as construed in 

their usual meaning." 

Section 6 of House Bill 666 provides for the collection of contributions. It makes provision for deduction of the 

employees' part from the employees' compensation and for allocation and appropriation of funds for payment of the State's 

part of the contribution for employees who are subject to coverage under the provisions of the bill. 

House Bill 709 amends Sections 1 and & of Chapter 500, 

Acts of the 52nd Legislature, Regular Session, 1951 (Article 

695g, Vernon's Civil Statutes), which allows political subdivisions to negotiate for OASI coverage for their employees. 

Section 1 of the bill adds a new subdivision to Section 1 of 

Article 695% so as to extend the definition of "political 

subdivision as follows: 

"(h) The term 'political subdivision' Includes 

an instrumentality of the State, of one or more of 

its political subdivisions, or of the State and one 

or more of its political subdivisions, but only if 

such instrumentality is a juristic entity which is 
. 

Hon. John H. Winters, page 3(S-172))~.' 

legally separate and dl5t~inc'c from the State or 

subdivision and'onlg if its- employees are not by 

virtue of their relation to sush juristic entity 

employees of the. State or 5mbdlvision." 

.~, L;,,,y/ '/ ,i ,, ,, 

Section 4 

Section 2 of the bill adde the following provision to 

of Article 695gt 

" . . Any instrumentality of the State, 

for which dkeot appropriations are made by the 

Legislature, may aontributsto then old-age and 

survivor's insurance programof the Federal @overnment for employees covered by Chapter 470, 

Acts, 1937, Forty-fifth Legislature, Regular 

Session, and amendments thereto, only suah funds 

as are speoificallg appropriated therefor." 

Chapter 470 referred to above is the act establishing the Teacher 

Retirement of Texas (Artlale 2922-1, V.C.S.). 

It is obvious from an analysis of the provisions of 

these two bills that State Institutions of higher learning cannot be included in both bills. If these Institutions are instrumentalities of the State within the definition contained in 

House Bill 709; their employe,es necessarily are not aovered by 

House Bill 666, since one of the conditions for coverage under 

House Bill 709 is that the employees not be "employees of the 

State" and House Bill 666 applies only to State employees. On 

the other hand, if these Institutions are not legal entities 

separate and distinct from the State, the logical conclusion 

would be that their employees ar5 State employees and that House 

Bill 666 was lntended~ to apply to them. 

House Bill 666 does not contain a basic definition for 

the term "State employee." It sets out aertain classes of persons who are included and certain alasses who are excluded, and 

it presupposes that when modified by ~these inclusions and exclusions the term shall have, its%sual meaning”; but It does 

not attempt to clarify what ,thzi usual meaning is in terms of the 

departments' and agentdee whose'employees are aonsidered to be 

State employees. However, we are aided In this respect by the 

Federal Social Security Law, 'which authorizes contracts for 

coverage of State employees who are performing servic 

nection with a governmental (nonproprietary) funatlon f 8 in cononly if 

The operation of institutionsof higher education by the State 

is ~a governmental funution& Raineg v. Malone, 141 S.W.2d 713 

(Tex.Clv.App. 1940). 
. 

Hon. John H. Winters, page 4 (S-172) 

the contract applies to all departments and agencies of the 

State which are not separate legal entities. Under Federal 

law the State mayexolude certain classes of employees within 

these departments and agencies, but'it may not exclude the 

department or agency as such. Thus, House Bill 666 conforms 

to Federal law only if the over-all meaning of "State employee" 

without the enumerated modifications includes employees of the 

State institutions of higher learning if these institutions 

are not separate legal entities. In the absence of proof to 

the contrary, it must be assumed that the term was not intended 

to have a more restricted meaning than would be permitted under the Federal law, for otherwise the enactment of House Bill 

666 would have been an idle gesture. 

Undoubtedly the State institutions of higher learning 

are instrumentalities of the State in the broad sense that they 

are the means through which the State carries on one of the 

functions of government. However, they are included in House 

Bill 709 only if they meet the conditions (1) that they are 

separate and distinct juristic entitles and (2) that their employees are not employees of the State. It is our opinion that 

they do not meet either of these conditions. 

There is no definitive criterion for determining 

whether an instrumentality is a separate legal entity. An instrumentality which is created as a corporate body or as a 

"body politic and corporate" ordinarily would be considered to 

have a legal existence separate from the State, although it 

might still possess some of the attributes of the State's sovereignty. It does not follow that an instrumentality which is 

not expressly created as a corporate body could not constitute 

a separate juristic entity, but the law establishing it would 

have to imply its separate existence before it should be treated 

as such. That the legal status of an Institution of higher learning depends on the status ascribed to it by State law is illustrated in Ramsey v. Hamilton, 181 Ga. 365, 182 S.W.392,398 (19%). 

In some States these institutions are organized as bodies corporate and are regarded as independent legal entities. State ex rel. 

Black v. State Board of Education, 33 Idaho 415, 196 Pac. 201 

)* Fanning v. University of Minnesota, 183 Mlnn. 222, 236 N.W. 

2iFiG31) In other States, they are not legal entities. Ramses 

v. Hamilton, supra; State v. McMillan, 12 N.D. 280, 96 N.W. 310, 

31b (1903). 

The institutions of higher learning in this State are 

not corporate bodies, and the courts have never treated them 

as seuarate entities. The organization and powers of the governingboards of the various institutions are sufficiently similar 

that their status in this respect is no different from that of 
Hon. John H. Winters, page 5 (S-172) 

the University of Texas. The relation of theUniversity to 

the State is exemplified in the following cases. 

In Group No. Cne Oil Corporation v. Baas, 38 B.2d 680, 

684 (W.D.Tex.1930,rev'd on other grounds, 141 F.2d 4831, it is 

stated! 

"The university is not a corporation. Its 

affairs are directed and controlled exclusively 

by the state. The title to what is commonly 

called university lands is in the State. Appropriations for maintenance and operation are regularly made by the Legislature. The university 

is in fact and in law a branch of the state 

government." 

Rainey v. bialone, 141 S.W.2d 713 (Tex.Civ.App.l940), 

held that the Regents of the University are vofficers of the 

State" and that the Board is the "head of a department of the 

State Government." 

In Walsh v. University of Texas, 169 S.W.2d 993 (Tex. 

Civ.App.1942,error ref.), we find this language: 

"The University and the Board of Regents are 

institutions of the State, and neither has any 

existence independent of the State. . . . Property 

belonging to the University of Texas is the property of the State. York v. Alley, Tex.Civ.App., 

25 S.W.2d 193, writ refused." 

In our opinion, these holdings foreclose any contention that the State institutions of higher learning have any 

existence separate from the State itself. We are further of the 

opinion that employees of these institutions are employees of 

the State, The purpose of adding this second condition is obscure. If the instrumentality has no existence separate from 

the State, it would seem to follow that under ordinary conditions of employment its employees would be employees of the 

State. However, the fact that this second condition was added 

in House Bill 709 suggests that the converse would not be true; 

that employees of a separate entity would not as a necessary 

consequence be outside the class of "employees of the State but 

still might be considered State employees for the purpose of OASI 

coverage e If this provision appeared in a statute for coverage 

of State employees as well as employees of separate instrumentalities and the statute contained a comprehensive definition of the 

term vhich included the employees of some instrumentalities which 

were separate entities, we would think that its purpose was merely 
Hon. John H. Winters, page 6 (S-172) 

to emphasize that instrumentalities were to have the authority to 

make separate agreements only if their employees would not bs covered under an a reement for coverage of State employees generally. 

If House Bill 6 % 6 csontained such a definition, we would conclude 

that the same meaning was, intended in House Bill 709, since the 

statutes are in oar1 materia. But House Bill 666 does not assist 

in arriving at the intended meaning, and we must conclude that the 

term is to be construed in the manner in which it is commonly used 

and understood by the Legislature in other connections. 

In numerous places in the general provisions of the biennial appropriation acts the Legislature uses the term 'employees 

of the State or oomparable terms to include employees of the institutions of higher learning. Section 62 of Article XVI of the 

Constitution authorizes the creation of a retirement fund for the 

"appointive officers and employees of the State." The employees 

of the institutions of higher education are ineligible for membership in the Employees Retirement System of Texas, created pursuant 

to this constitutional, authorization, only because they are subject 

to the Teacher Retirement System and the State laws do not permit 

membership in both systems. Before the Teacher Retirement System 

was extended to include auxiliary employees of educational institutions, it was conceded that these employees were eligible for 

membership in the Employees Retirement System because of their 

status as "employees of the State." It is our belief that the term 

as generally used by the Legislature would be taken to include employees of these institutions unless a oontrary intention was clearly shown. 

Sinoe these institutions are not instrumentalities as 

defined in Seation 1 of Bouse Bill 709,your second and third questions are answered in the negative. We need not answer your fourth 

question, as the restriction in Section 2 of House Bill 709 applies 

only to instrumentalities which are within the dsfinition in Section 1 of the bill. Even if it were construed to apply to other 

instrumentalities, the speaific appropriation for these institutions 

would be found in House Bill 666, under the conclusion we have 

reached in answer to your first question as hereinafter discussed. 

As already indicated, it is our opinion that the employees 

of these institutions are included in the general term "State 

employee" in House Bill 666, sinoe the institutions are not separate legal entities. The remaining question is whether the employees 

who are in positions subject to the Teacher Retirement System are 

excluded, under the provision which states that the term shall not 

include employees in positions subjeot to the Teacher Retirement 

System "except those employed by State departments, State Agencies, 

and State institutions as construed in their usual meaning. 
Hon. John H. Winters, page 7 (S-172) 

Without evidence that the usual meaning as intended in 

House Bill 666 was otherwise, we must conclude that the meaning 

usually given the terms by the Legislature and the courts was 

that intended by the bill. The courts have held that the institutions of higher learning are State institutions and departments 

of the State government. Rainey v. Malone, supra; Walsh v. University of Texas, supra; Mumme v. Marrs, 120 Tex. 383, 40 S.W.2d 

Throughout the statutes pertaining to iheir establishment, 

31 (1931); Cochran v. Cavanaugh, 252 S fir.284 (Tex.Civ.App.1~92~). 

collection of fees and the administration of funds collected by 

them, we find them referred to as institutions, State educational 

institutions, and institutions of higher education. Title 49, 

Chaps. 2 - Pa, V. C. S. Article 608, V. C. S., which places in 

the Board of Control the authority to contract for printing, binding, and stationery for the State departments, institutions and 

boards except such work as may be done at the various educational 

and eleemosynary institutions, includes contracts for the institutions of higher learning. Att'y. Cen. Op. 0-5283 (1943). In 

the biennial appropriation acts they are referred to as State 

institutions of higher education, State institutions, educational 

institutions, and agencies of higher education. 

The hospitals and special schools under the control of 

the Board for State Hospitals and Special Schools and certain 

agencies under the jurisdiction of the State Board of Education 

and the State Derjartment of Public Welfare are also referred to 

as "institutions in the statutes, and were formerly known under 

the official designation of "eleemosynary institutions" until 

changed by the Legislature in 1949. Arts. 3174, 3174a, 3174b, 

v. c. s. The schools under the jurisdiction of the Youth Develooment Council were formerly referred to in the appropriation acts 

as "reformatory institutions" and are sometimes known as "correctional institutions." Each of these agencies is an institution 

of a specialized character, just as the institutions of higher 

learning are of a specialized character. We cannot say that the 

usual meaning does not include institutions of higher learning 

with any more reason than we could say that it does not include 

eleemosynary institutions. 

In answer to your first and fifth questions, we hold 

that the employees of these institutions, including those subject 

to the Teacher Retirement System, 

under House Bill 666. 

are eligible for OASI coverage 

It might be ur ed that this construction of the last 

sentence in Subsection ? c) renders it meaningless and unnecessary in that there would be no State employees subject to the 

Teacher Retirement System who would be excluded. A similar 

contention might be made with respect to the provision in Section 
Hon.. John H. Winters, page 8 (S&172) 

2 of Rouse Bill 709. 

13C',fex. 433, 110 S.W.26 96 1937)# we need not indulge in any 

To r?se language in Hurt v. Cooper, 

speculation on what agencies or instrumentalities, if any, come 

within the terms of these provisions. However, these and other 

provisions in the bills raise ambiguities which would justify 

a consideration of their legislative history to clarify the lntent of the Legislature in enacting them. But the legislative 

history as revealed in the official records throws no light on 

the agencies to which they were intended to apply, 

We have been seriously hampered in our study of these 

questions by the lack of a record of committee hearings and 

deliberations and debates in the Legislature. There are strong 

indications from extraneous sources that the sponsors of House 

Bill 709 believed and represented to the Legislature that it 

applied to the institutions of higher learning; that the sponsors 

of House Bill 666 believed and represented to the Legislature 

that it excluded employees of the institutions of higher learning who were subject to the Teacher Retirement System; and that 

the Legislature enacted the bills in the belief that it would 

not be possible for the employees of these institutions who 

were covered by the Teacher Retirement System to be included 

in any contract for Social Security coverage until the Legislature took further action to appropriate money for payment of the 

contributions. In this connection, the adoption of Senate Joint 

Resolution 5, Senate Bill 290, and Senate Concurrent Resolution 

78 form a part of the background necessary to an understanding 

of what may have been the legislative intent with respect to 

the coverage of employees subject to the Teacher Retirement System. 

If these surmises were borne out by legislative records 

and reports, the conclusions we have reached on some of the questions would be different. But we have not felt at liberty to be 

influenced by information from souraes which a oourt would refuse 

to consider if these questions were before it. It is our belief, 

from a review of the decisions of this State and elsewhere, that 

the courts of Texas would not allow evidence of opinions and statements of members of the Legislature and third persons outside the 

official records of the Legislature to show a legislative intent 

at variance with the language used in the enactments. 

example, Wiseman v. Madison Cadillac Co., 191 Ark.102 

1007 (1935); Security Feed & Seed Co. v. Lee, 138 Fla 

1, 

869 (1939); Ocean Forest Co. v. Woodside 184 S.C.428 11 

C$P;7!za;;ay v. Bushfield, 69 s D 2 6 N W.2d 1 (1943); City 

P State, 198 Wash. 682;1zP'F'.2d.826 (1939‘ 

Ameriaan Automobile Ins. CO,, 248 Wis, 347, 21 N.W.2d 

a2 C.J.S.. Statutes. Se 

'd 

‘0. 

.3 

); Pa ke v. 

72m ; -- 

cs. 3549355,356. On the basis of the language 

employed-and the legislative history of the bills as shown by the 

official records, we are unable to reach any other answers than the 

ones we have given. 
Hon. John H. Winters, page 9 (S-172) 

SUMMARY 

State institutions of higher learning are 

State institutions in the usual meaning of that 

term, and their employees are State employees. 

Therefore, employees of these institutions, including employees in positions subject to the 

Teacher Retirement System, are eligible for Federal old-age and survivors insurance 

il 

Social 

Security) coverage under House Bill 6 6, Chapter 

467, Acts of the 54th Legislature, which provides 

for coverage of State employees. 

~lhe State Institutions of higher learning are 

not juristic entities which are separate and distinct from the State, and their employees are not 

eligible,for Social Security ooverage under Article 6958, Vernon's Civil Statutes, as amended by 

House Bill 709, Chapter 501, Acts of the 54th 

Legislature, whioh authorizes Social Security coverage agreements for certain instrumentalities of 

the State and of Its political subdivisions. 

APPROVED: Yours very truly, 

Marietta M®or Payne JOHN BEN SHEPPERD 

Reviewer Attorney General 

Davis Cirant 

Reviewer BY 

Will D. Davis 

Special Reviewer 

Assistant 

John Atohison 

Acting First Assistant 

John Ben Shepperd 

Attorney General 

MKW/rt