Hon. J. W. Edgar OpiinionNo. M- 1051

Commissioner of Zducation Texas Education Agent}

.RF?: W11etha.r retirecd em~~.ny201 East 11th Street. ees of the TexeisEducaAustin. ‘i’oxas 78701 tionAgency, who ar ,~ot ireceivin9ratir~merli. benefits asmelrbers,jf the Employees ;<etirement System, are ell;-r.bl?. for premium payments On grOU;Y)

Insurance policies equal to that of rcgi.iaractive e:,;pioyees,and related qutzaDear Dr. Edgar: tions?

In your recent letter you requested our interpret+ tion of Subdivision B of SectIon 9 ofArticle jL28a, Vernon's Civil Statutes, Section 10 ofArticle V of the Appropriation Act of 1971 (S.B. 11,Acts 62nd Leg., R S., i9'71,p.V-38) and of Se&ion 3 of theAppropriation Act.

Subdivision B of Section 9 ofArtl.clc6228a was a new addition to the statute enacted by the 62i;cl Legisiature. Se&ion B provides tha,tthe Board of Trustees of the E,:;pl.oyees Retirement System of Texas shall adopt rules to provide for participation in the premium costs of Gcoup Life alidHeaith Insurance Coverage for member retirees c>i' the System. YOU state inyour letter that very few retired employees of the Texas Educatlor,Agency and its Special Schools are members of the Employees Pet1rener,t:;ys te:,i:, Hon. J. W. Edgar, page 2, ( M-1052)

We quote your first question as follows:

“1. Are employees of this Agency who have retired from active service with the State, and who are nc,treceiving retirement benefits as members of the Employee Retirement System, eligible for payment of premiums onpolicies containing qroup life, health, accident, accidental death and dismemberment. disability income replacement and hospital, surgical and/or medical expense, equal to that of its regular employees?" Subdi.vi,sion

A of Section 3,Article 6228a provides that persons who are covered by the Teacher Re,tirementAct shall not be eligible for participation in the Employees Retirement System of Texas as defined in Section 2 ofArticle 6228a. Therefore, any retired employees of your agency who are retired under the provisions of the Teacher Retirement System are specifically excluded fromArticle 6228a. Subdivision B of Sectj.on9,Article 622Sa by its very specific terms applies only to "member retirees" of the Employees Retirement System of Texas. We must conclude that unless a person 1s a member retiree of the Employees Retirement System of Texas, the person would not be entitled to the provisions of that system.

Section 10 of Article V of theAppropriation Bill of 1971 (S.B. 11,Acts 62nd tog.. R.S. 1971. p.V-313)isenti.ttled "Limltationa onUse 0f Other Expense Funds for Paying Salaries andWages." This section has previously been construed by this office inAttorney General's Opinion M-919 (1971), inwhich it was concluded that the word "shall" in the fourth paragraph did not make State contributions mandatory. We held that "shall" was mandatory only indesignatrnq the funds from which any contribution must be made.

Sect.~,m3 ofArt' 1 rc e V of theAppropria~tronsAct (S. B. 11,Acts 62nd Leq., R.S. .S971.p,V-33) authorizes the responsible officral to transfe,rinto the operating fund of the agency from local funds and federal grants sufficient monres

-5141-Hon. J. w. Edgar, page 3. (M-1052.)

to pay the State's share of premiums for insurance for retired employees, We can not consirue Section 3, however, as enabling leqislarion to ,theTexas Education Agency to pay a portion of the premiums for the insurance of its retired employees. Section 44 of Article III of the Constitution of Texas provides .t%atthe Legislature shall not grant by abpropriation or otherwise any amourrtofmoney out of the Treasury of the State to any individual on a claim, real or pretended, when ,thesame shall not have been provided for by pre-existing law. This provision of the Constitution has been construed to mean that the Legislature has no power to make an appropriation unless at the very time the appropriation was made there existed some pre-existing law authorizing the same. _Club,Inc. vs. She'ny Ft. Worth Cavalry ard, Controller, 835 S.W. 660 S.Ct. 1935.
InAustin National Bank ofAustin vs ,&eppard, 123 Tex. 272 71 S.W.Zd 242 (1934)--&r Supreme Court held that the Legislature cannot appropriate State money to any individual unless at the very time the appropriation ismade there is already in force some valid law constituting the claim the appropriation ismade to pay a legal and valid obligation of the State.

Since Article 622&a specifically excludes retired employees of the Texas Education Aqency from itsprovisions and there is no previous existing law similar to Subdivision B of Section 9 ofArt:icle62263, which would be applicable to the Texas Education Aqency; we must answer your question in the neqative.
In view of the negative answer to your first question, itbecomes unnecessary to answer your second and third questions.

Subdivisi.ona of Section 9 ofArticle 622&l, v.cs.. does not include 'retiredemployees of the 'TexasEducation Agency in its

-5142-c Hon. J. w. Edgar, page 4, \M~-105?)

provisions unless those retired employees are members of ,theEmployees Retirement System of Texas as defined inSection 2 ofArticle 622Sa, V.C.S. The 1971. Appropriation Bill (s.13.11, Acts 62nd Leg., R.S.) is legally insufficient to autho:rieethe Texas Education Agency to participate separately in ,thepayment ofpremiums of insurance for its retired employees, there beiny no pre-existing law .tosupport it as required by Article III, Section 44, Constitution of Texas. /;;7 Vety'truly yours,

Atto$kay General of Te%as Prepared by Robert W. Gauso Assistant Attorney General APPROVED: OPINION COMIITTEE Kerns Taylor, Chairman W, E, Allen, Co-Chairman Houghton Brownlee Ronnie Driver John Grace Jim Swearingen
SAN FcDANIEL Staff Legal Assistant
ALFRED WALKER Executive Assistant
NOLA WHITE First Assistant -5143-