# The Attorney General of Texas

June 16, 1983 JIM MATTOX Attorney General

Supreme Court Building P.O. BOY 12546 Awtin. TX. 78711. 2548 5121475-2501 Telex 9101674-1367 Telecopier 512/475-0266

1607 Main St..Suite 1400 Dallas, TX. 752014709 214/742-6944

4624 Alberta Ave.. Suite 160 El Paso. TX. 79905.2793 9151533.3464

220 Dallas Ave.. Suite 202 Houston. TX. 77002.6966 7131650-0666

606 Broadway, Suite 312 Lubbock, TX. 79401-3479 6061747-5238

4309 N. Tenth. Suite B McAlle”. TX. 76501.1685 5121662-4547

200 Main Plaza. Suite 400 San Antonio, TX. 78205.2797 5121225-4191

An Equal Opportunity/ Affirmative Action Employer HonorableJames S.McGrath CriminalDistrictAttorney Jefferson county P. 0. Box 2553 Beaumont.Texas 77704 OpinionNo. JM-38
Re: Whether community mental health/mentalretardationcenter may provideunion dues checkoffs for employees
Dear Mr. McGrath:
You have requested our opinion as to whether a mental health/mental retardation community center may provide union dues checkoffs for its employees. The Mental Health/Mental Retardation Center for Southeast Texas was createdby the governingbodies of Jefferson,Chambers,and Orange Counties, pursuant to section 3.01 of article 5547-203, V.T.C.S. Subsection (c) thereofprovides:

A community center is an agency of the stateand a unit of government as defined by Section 2, Texas Tort Claims Act (Article 6252-19, Vernon's Texas Civil Statutes). Article 6813e;V.T.C.S.,adoptedby the legislaturein 1981,prohibits a "state governmental body" from making a deduction from the compensation of an officer or employee paid in whole or part from state funds unless the deduction is authorizedby law. Article 6813e provides in part:

section 1. In this Act, 'state governmental body'means: (1) a board, commission. department, office, or other agency that is in the executivebranch of state government and that was created by the constitutionor a statute of the state, including an institution of higher education as defined by Section 61.003,Texas EducationCode, as amended; (2) the legislature or a legislative agency; or

p. 163Honorable James S. McGrath - Page 2 (JM-38)

(3) the Supreme Court, the Court of Criminal Appeals, a court of civil appeals, or the State Bar of Texas or another state judicial agency.
We must determine whether a community mental health/mental retardation center is a "state governmental body" within article 6813e,V.T.C.S. A "state governmentalbody" is a body createdby the constitution or a statute of the state. V.T.C.S. art. 6813e, §l. Community centersmay be establishedby various local agencies. SW V.T.C.S. art. 5547-203, §3.01. The community centers are establis= by local agencies pursuant to statute, but they are not actually established by statute. Thus, the prohibitions of article 6813e, V.T.C.S.,do not apply to them.
Next we must determine whether a communitymental health/mental retardation center has express or implied statutory authority to institutea dues checkoffprogram. Prior opinionsof this officehave concluded that a county could not authorize payroll deductions at an employees' request for labor union dues or creditunion savings plans without express statutory authority. Attorney General Opinions M-334 (1969); WW-1107 (1961). See also Attorney General Opinion M-613 (1970). On two occasions this office has concluded that a state agency or political subdivision with broad statutory powers had impliedauthority tomake payrolldeductions from employees'wages for union dues. See Attorney General Opinions MW-130 (1980); H-1125 (1978). Governmental bodies not subject to article 6813e, V.T.C.S., are left in the same positionwith respect to payroll deductions that they occupiedbefore its enactment. A communitymental health/mental retardation center did not acquire any additional power to institute payroll deductionprogramsby the enactmentof article 6813e. Section 3.08 of article 5547-203provides:
The board or director may employ and train personnel for the administration of the various programs and services of a community center. The board shallprovide appropriaterights,privileges and benefits to the employees of a community center consistent with those rights, privileges and benefits available to employees of the governing bodieswhich establish the center and is authorized to provide and may provide workmen's compensation benefits. The number of employees and their salaries shall be as prescribed by the board of trustees, Commissioner. (Emphasisaadsded)approvedby the
As already noted, the Mental Health/Mental Retardation Center for SoutheastTexaswas createdby the governingbodies of three counties.

p. 164HonorableJames S. McGrath - Page 3 

### (JM-38)

Article 2372h-4, V.T.C.S., provides, with respect to some counties: (a) The commissioners court of any county of

20,000 or more population may authorize payroll deductions to be made from the wages and salaries of county employees, on each employee's written request, to a creditunion, to pay membershipdues in a labor union or a bona fide employees association,and topay fees forparking in county owned facilities. (b) Each employee requestinga deductionunder this Act shall submit to the county auditor a written request indicating the amount to be deducted from the employee'swages or salary and to transfer the withheld funds to the credit union, proper labor union or employees association, or county funds. The request shall remain in effectuntil the countyauditor receives written notice of revocation signed by the employee. (c) The amount deducted from an employee's wages or salary for the purpose stated in thisAct shall not be more than the amount stipulated in thewritten request. (d) Participation in theprogram authorizedby this Act is voluntary on the part of any county employee and the county.

sec. 2. The provisions of this Act shall not alter, amend, modify, or repeal any of the provisions of Chapter 135, Acts of the 50th Legislature, 1947 (Article 5154c, Vernon's Texas civil Statutes).

sec. 3. Public funds shall not be used to defray the administrative cost of making the deductionsauthorizedunder thisAct, except those deductions relating to payment for parking. The creditunion, laborunion or employeesassociation shall pay the full and complete administrative cost, if any, as determined and approved by the commissioners court of the deductions made for theirbenefit under thisAct.

p. 165HonorableJames S. McGrath - Page 4 (JM-38)

Two of the three countieswhich establishedthis centerhave authority under article 2372h-4,V.T.C.S., to make payroll deductions for union dues and have exercised this authority. One of the three countieshas a population of under 20,000 people and therefore lacks authority to permit such deductions for its employees. See Attorney General - OpinionM-334 (1969).
A payroll deduction forunionmembershipdues is, in our opinion, a "right, privilege, or benefit" within section 3.08 of article 5547-203,V.T.C.S. The question iswhether theboard of the Southwest Centermust make suchpayroll deductionsavailable to its employees in order to provide themwith rights,privileges,and benefits consistent with those enjoyed by employees of the governing bodies of the three countieswhich established the center. "Consistent"has been defined as follows:

Having agreement with itself or something else; accordant; harmonious; congruous; compatible; cornpliable;

not contradictory.
Black's Law Dictionary 279 (5th ed. 1979). In this particular case, the three founding counties are not consistent among themselveswith respect to offering payroll deduction for union dues. Two counties make this option available to its employees,while one does not. In such a case,where thepractice of the founding counties is internally inconsistent,we believe the board of the Southwest Mental Health/ Mental Retardation Center is permitted, but not required, to offer payroll deductions for union dues to its employees. If the center offers payrollsdeductions, its action will be consistent with the practice of two of the three founding counties. If it does not offer such deductions, its action will be consistentwith that of the third county. In neither casewill theboard's practicewith respect to the dues deduction privilege be wholly inconsistentwith the practice of the three founding counties. If the board chooses to authorize payroll deductions for union dues, it must do so in accordance with the provisions of article 2372h-4, V.T.C.S., which provides that public funds not be used to defray the administrative cost of making the deductions.
In this case we have had to determine whether a particular employee right, privilege, or benefit is consistentwith that offered by a group of three counties,where two countiesoffer the benefit in its entirety and one offers it not at all. A different approach to determining consistencymight be necessary to deal with another kind of benefit, for example, insurance with different benefit levels available to employees in each of the countieswhich established the center. We express no opinion on what constitutes "consistent" rights, privileges, or benefits under article 5547-203, section 3.01, when anotherkind of right,privilege,or benefit is at issue. ?

p. 166HonorableJames S. McGrath - Page 5 (JM-38)

SUMMARY Community mental health/mental retardation centers established pursuant to section 3.01 of article 5547-203, V.T.C.S., are not subject to article 6813e. V.T.C.S. The Mental Health/Mental Retardation Center for SoutheastTexas createdby the governing bodies of Jefferson, Chambers, and Orange Counties has permissive authority under section 3.08 of article 5547-203 and section 1 of article 2372h-4, V.T.C.S., to authorize payroll deductions at the employees' request for payment of unionmembershipdues. ,Very/tzh

JIM MATTOX Attorney General of Texas
TOM GREEN FirstAssistantAttorney General
DAVID R. RICHARDS ExecutiveAssistantAttorney General Preparedby Susan L. Garrison AssistantAttorney General
APPROVED: OPINION COMMITTEE
SusanL. Garrison,Chairman Jon Bible David Brooks JimMoellinger Nancy Sutton

p. 167