### EL% ORNEP OF TEXAS

CommissionerJohn H. Winters State 'Departmentof PublicWelfare Austin, Texas
OpinionNO. c-68
Re: Whether Policemen or other Police Department employees are covered by Federal Old Dear CommissionerWinters: Age and Survivors Insurance.

This office Is in receipt of your letter of April 9, 1963, where you ask the following question:

Whether "other employees" of the Police, Departmentwho, under a court decision,were declared to have Civil Service status, and who, under a City Ordinance,were declared to have a classificationaa policewomenbecause of their Civil Service status, are subject to Social Security coverageunder 42 USCA, Section 418, of the Federal Social SecurityAct, pa:ticularly in view of thenspecific exclusions of 8olicemen ;u-~z ;irrnen contained in Section 41 (d)(s)Aof

. Statement of Facts The State Department of PublicWelfare is authorized, under the provisions of House Bill No. 603, Chapter 500, 'page 1480, General and Special Laws of the State of Texas, 52nd Legislature,Regular Session, 1951, as amended, to contract with the incorporatedcities in Texas for the extension of Federal Old Age and Survivors Insurance coverage, subject to limitations of Section 418 of the Federal Social Security Act. Section 418 of the Federal Act provides that Old Age and Survivors Insurance coverage can be extended to the employees of political,subdivisions. The Act provides, further,

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that in the event coverage is extended to employees already coveredby a retirement system; the eligible employees must first vote favoring OASI doverage in a referendum su ervisedby the Governor or his representative. Se&ion &(d)(5)A of the Federal Social SecurityAct pIaces a g;u;:r specific exclusionrelating to policemen and firemen. fore, policemen and firemenwhose'posltlonsare subject to coverageby a retirement system are not eligible to vote in the referendum,nor may Social Security coveragebe extended to them.

The City of Wichita Falls entered into an agreement for the extension of OASI coverage, effective as of January 1,

The State-Federalagreement effectuating this agreei%?z'was signed on February 8, 1957. At that time the City employees, includingpolicemen and other employees of the police department,were covered'by the Texas Municipal Retirement System. Although policemenwere excluded from participating under the Social Security agreement, other employees of the PoliceDepartment, as well as employees of other city departments,were included for Social Securityparticipation since the city did not classify them as policemen. A suit filed in the 30th District Court of Wichita County, styled Kathleen Cox v. City of Wichita Falls, 300 S.W.2d 317 (Tex.Clv. App. lyb'(,

error ref. n.r.e.),held that certain female employees of the City PoliceDepartmentwere entitled to enjoy the status of Civil Service employees. Further, that they were "members"of the PoliceDepartmentwithin the statute establishingminimum compensationfor the members thereof.

OnMarch 13, 1961, the Board of Aldermen of the City of Wichita Falls enacted OrdinanceNo. 1944 providing for the classification of all policemen under Civil Service. Also, that female employees of the City of Wichita Falls Police Departmentwho have Civil Service status shallhave the classifidation of Policewomenand shallbe ineligible to hold any other classificationwithin the PoliceDepartment.

The Federal Social Security Administrationhas received a formal request from one of the women employees for a determination as to her correct Social Security earnings record with the City of Wichita Falls.

The following statutes and ordinancesare pertinent to the question youhave asked:

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CommissionerJohn H. Winters, page 3 (c-68)

42 USCA, Section 418(d)(5)A of the Federal Social Security Act, in part:

"Nothing in

. . this subsection shall authorize the extension'of the insurance system establishedby this title to service in any policeman's or fireman's position." OrdinanceNo. 1944, City of Wichita Falls, March 13, 1961, in part:

"Section 2. All female employees of the City of Wichita Falls Police Departmentwho have Civil Service status shallhave the classification of Policewomanand shallbe ineligible to hold any other classificationwith the Police Department in said city." Since the female employees of the PoliceDepartment of Wichita Falls are "policewomen"as set out underthe provisions of Section 418(d)(5)A of the Federal Act, and as they are already coveredby a retirement system, they would be excluded from receivingbenefits from Old Age Survivors Insurance coverageunder Section 418 of the Federal Act. The purpose of this exclusionwould be to prevent duplication of coverage from both acts.

In the case of City of San Antoniov. Mrs. Cordie Hahn, 274 S.W.2d 162, the Court held that switchboardoperators, linemen, clerks, and mechanics employedby the PoliceDepartment of San Antoniowere members thereof, and entitled to benefits of the Firemena and Policemens Civil Service Act.

The City of Wichita Falls by OrdinanceNo. 1944, classified all female employees of the Police Department as "policewomen." These female employees are entitled to all benefits received by employees of the PoliceDepartment. Female employees of Wichita Falls PoliceDepartmenthave Civil Service status.

Therefore, this office is of the opinion that both through judicialdecree and by statutes :he women employees of the Wichita Falls PoliceDepartment are Policewomen as described in the exclusion of Section 418(d (5)A,and are not entitled to Social Security coverageunder Section 418 of the Federal Social SecurityAct.

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CommissionerJohn H.Winters,page

SUMMARY 4 (C-68)

The female employees of the Wichita Falls PoliceDepartmentwho have Civil Service status and are declared to have the classification of policewomenby city ordinance are not subject to,Social Security coverage under Section 418 of the Federal Social Security'Act in view of the exclusion of policemen in Section 418(d)(5)A of the same Act. Yours very truly, WAGGONER CARR Attorney General
ByaLk,& Bill Morse, Jr. Assistant BM:wb:ms APPROVED: OPINION COMMITTEE W. V. Geppert, Chairman Jack Norwood Edward R. Moffett Nicholas A. Irsfeld Howard Fender APPROVED FOR THE ATTORNEY GENERAL By: Stanton Stone

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