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JIM MATTOX Attorney General

Supreme Court Building P. 0. Box 12546 Austin. TX. 76711. 2546 5121475.2501 Telex 9101674.1367 Telecopier 512/475-0266

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An Equal Opportunity/ Affirmative Action Employer 

# The Attorney General of Texas

December 30, 1983

Honorable CarlA. Parker Chairman SenateEducationCommittee Texas State Senate P. 0. Box 12068,Capitol Station Austin,Texas 78711 OpinionNo. JM-115

Re: Obligation of state to fund university insurance premiums for employees

Dear SenatorParker:

You ask the following two questions concerning the "Texas State College and University Employees Uniform Insurance Benefits Act," article 3.50-3of the InsuranceCode:

(1) Does the state have any obligation to provide the funds necessary in order for each university to provide the proper level of insurance coverage? Are those institutions who may not have the necessary unappropriated funds, and who are unable to find commercial insurance carriers willing to provide the minimum required coverage for the state'sappropriationof $70 per employee, per month, entitled to the additiona~l fundsneeded toprovide the requiredcoverage?
(2) In the event that theuniversity isunable to provide its employeeswith theminimum coverage because of its financial inability to supplement the stateappropriation,will universityemployees have a causeof actionagainst theuniversity,any of itsofficers,and/or the state of Texas?
Article 3.50-3 of the InsuranceCode requires state colleges and universities to provide employees with basic life, accident, and health insurancecoverages

at least equal to those commonly provided in private industry and those provided employees of other agencies of the State of Texas under the Texas Employees Uniform Group Insurance Benefits Act.

Ins. Code art. 3.50-3, §2(b) (purpose clause). An administrative council establishedunder the act determinesbasic coverage standards

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that are at least equal to those provided in private industry and those provided employees of other state agencies. Sec. 4(a)(4)(A). The employermust make basic coverageavailable to each employeeat no cost to the employee. Sec. 11. As your first question indicates,
some universities are unabl~eto provide basic coverage from the state's appropriation of $70 per employee. Attorney General Opinion MW-215 (1980) determined that the university must pay any excess premium from non-appropriated funds, but you state that some universities lack sufficient non-appropriated funds. You state in your request letter that costs of health care vary considerably from one region of Texas to another. Two areas of high costmedical care, Houston and Beaumont/Port Arthur, also have higher rates of cancer than the state as a whole. You also state that some university employee groups are so small that a few large claims in one year can raise futurepremiums to a levelexceeding the stateappropriation.
With thisbackground inmind,we turn to your firstquestion. In essence,you askwhether the legislaturemust appropriatea 'sufficient amount to fully fund premiums for the statutorily required basic coverage.
The legislative power of Texas is vested in the Senate and the House. Tex. Const. art. III, 01. The legislaturehas full power and discretion to enact laws. subjectonly to limitationscontained in the state and federal constitution. Watts v. Mann, 187 S.W.2d 917, 924 (Tex.Civ.App. - Austin 1945,writ ref'd);Conleyv. Daughters of the Republic, 156 S.W. 197 (Tex. 1913); Tuttle v. Wood, 35 S.W.2d 1061 (Tex. Cl". App. - San Antonio 1930, writ ref'd). Funds in the treasury may be appropriated only by legislative action, E Tex. Const. art. VIII, $6; see generally Letter Advisory No. 132 (1977), and legislativediscretion to appropriate funds is in fact limitedby several constitutional provisions. See, e.g. arts. III, %%44. 49a. 50; art. IV, 914; art.VIII, §6.
Article 3.50-3 of the Insurance Code is a general law. and does not itself appropriate funds to carry out its purposes. Pickle v. Finley. 44 S.W. 480 (Tex. 1898). The legislature in enacting article 3.50-3 could not thereby bind subsequent legislatures to make appropriations to carry out its purposes. See generally Watts v. Mann, supra at 924 (one legislature may not limit the power of a subsequent legislature to enact laws). Article 3.50-3 does not establish a constitutionally protected vested right in university employees to full payment of basic coverage from appropriated funds. We therefore conclude that the legislature has no obligation to appropriate the funds necessary for each university to provide the proper level of insurance coverage. Your first question is answered in thenegative.

You next ask whether university employees will have a cause of ? action against the university, its officers, or the state if the university is unable to provide them with basic coverage pursuant to

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section 11 of article 3.50-3. A "cause of action" is a fact or facts entitling one to institute and maintain an action which must be alleged and proved in order to obtain relief. A. H. Belo Corp. v. Blanton, 129 S.W.2d 619 (Tex. 1939). The violation of a right with consequent damage gives rise to a cause of action. Lotus Oil co. V. Spires, 240 S.W.2d 357 (Tex. Civ. App. - El Paso 1950, writ ref'd n.r.e.).
Since we cannot investigate and resolve fact questions in the opinionprocess,we cannot saywith certaintywhether the employeesof any university subject to article 3.50-3 have a cause of,action against an official or governmental entity for failure to provide insurance coverage. If university employees determine that the facts establish a cause of action they must seek legislative consent to bring a suit against the state, a state agency, or an official acting within his legally authorized area of discretion. Director of the Department of Agriculture and Environment v. Printing Industries Association of Texas, 600 S.W.2d 264 (Tex. 1980);Texas Technological College v. Fry 278 S.W.2d 480 (Tex. Civ. App. - Amarillo 1954, no writ); Walsh v.'University of Texas, 169 S.W.2d 993 (Tex.Civ. App. - El Paso 1942, writ ref'd). A litigant who wins a damages claim against the state must then seek payment from appropriated funds. S. & G.ConstructionCompanyv. Bullock, 545 S.W.2d 953 (Tex. 1977).

If the facts show that a state officer has acted beyond his statutory capacity, the injured party may sue the official f.nhis individualcapacity,without legislative consent. Simmonsv. Vinson, 394 F.2d 732 (5thCir. 1968)cert.denied 393U.S. 968 (1968). Sucha suit would not seek damages from the state, but from the personal funds of the officer. We reemphasize,however, thatwe have made no findingas towhether facts existwhich would give rise to a cause of action againstany person.

SUMMARY

The legislaturedoes not have an obligation to fully fund insurance premiums necessary to pay basic coverage for university employees under article 3.50-3 of the Insurance Code. Whether university employees who do not receive minimum coveragehave a causeof actionagainst the state, the university, or university employees is a fact question which cannot be in the opinion process.

AttorneyGeneral of Texas

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TOM GREEN FirstAssistantAttorneyGeneral

DAVID R. RICHARDS ExecutiveAssistantAttorneyGeneral Preparedby SusanL. Garrison AssistantAttorneyGeneral

APPROVED: OPINIONCOMMITTEE
Rick Gilpin,Chairman Jon Bible David Brooks Colin Carl SusanGarrison JimMoellinger Nancy Sutton

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