Hon. J. W. Edgar Opiinion No. M- 1051 

Commissioner of Zducation 

Texas Education Agent} . RF?: W11etha.r retirecd em~~.ny201 East 11th Street. ees of the Texeis EducaAustin. ‘i’oxas 78701 tion Agency, who ar ,~ot 

ireceivin9 ratir~merli. 

benefits as melrbers ,jf 

the Employees ;<etirement 

System, are ell;-r.bl?. 

for premium payments 

On grOU;Y) Insurance 

policies equal to that 

of rcgi.iar active e:,;pioyees , and related qutzaDear Dr. Edgar: tions? 

In your recent letter you requested our interpret+ 

tion of Subdivision B of SectIon 9 of Article jL28a, Vernon's 

Civil Statutes, Section 10 of Article 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 the Appropriation Act. 

Subdivision B of Section 9 of Artl.clc 6228a was a 

new addition to the statute enacted by the 62i;cl Legisiature. 

Se&ion B provides tha,t the 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 alid Heaith 

Insurance Coverage for member retirees c>i' the System. 

YOU state in your letter that very few retired 

employees of the Texas Educatlor, Agency and its Special Schools 

are members of the Employees Pet 1rener,t :;ys te:,i: 
, 

Hon. J. W. Edgar, page 2, ( M - 1 0 5 2) 

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,t receiving retirement benefits as 

members of the Employee Retirement System, 

eligible for payment of premiums on policies 

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,tirement Act 

shall not be eligible for participation in the Employees 

Retirement System of Texas as defined in Section 2 of Article 

6228a. Therefore, any retired employees of your agency who 

are retired under the provisions of the Teacher Retirement 

System are specifically excluded from Article 6228a. Subdivision B of Sectj.on 9, 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 the Appropriation Bill of 

1971 (S.B. 11, Acts 62nd tog.. R.S. 1971. p.V-313) is enti.ttled 

"Limltationa on Use 0 f Other Expense Funds for Paying Salaries 

and Wages." This section has previously been construed by this 

office in Attorney General's Opinion M-919 (1971), in which it 

was concluded that the word "shall" in the fourth paragraph did 

not make State contributions mandatory. We held that "shall" 

was mandatory only in designatrnq the funds from which any contribution must be made. 

Sect.~,m 3 of Art' rc 1 e V of the Appropria~trons Act (S. 

B. 11, Acts 62nd Leq., R.S. .S971. p,V-33) authorizes the responsible officral to transfe,r into the operating fund of the 

agency from local funds and federal grants sufficient monres 

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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 ,the Texas 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%at the Legislature shall not grant by abpropriation or otherwise any amourrt of money out of the Treasury 

of the State to any individual on a claim, real or pretended, 

when ,the same 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. 

In Austin National Bank of Austin 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 is made there is already in force some valid law constituting the claim the appropriation is made to pay a legal and valid obligation of the State. 

Since Article 622&a specifically excludes retired employees of the Texas Education Aqency from its provisions and 

there is no previous existing law similar to Subdivision B of 

Section 9 of Art:icle 62263, 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, 

it becomes unnecessary to answer your second and third questions. 

Subdivisi.on a of Section 9 of Article 

622&l, v.cs.. does not include 'retired employees of the 'Texas Education Agency in its 

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c 

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

provisions unless those retired employees are 

members of ,the Employees Retirement System of 

Texas as defined in Section 2 of Article 622Sa, 

V.C.S. The 1971. Appropriation Bill (s.13. 11, 

Acts 62nd Leg., R.S.) is legally insufficient 

to autho:riee the Texas Education Agency to 

participate separately in ,the payment of premiums of insurance for its retired employees, 

there beiny no pre-existing law .to support 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 

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