### = ‘ D?EBcATIY)RNEY GENERAL OFTEXAS

Honorable

T. M. Trimble FirstAssistant State Superintendent of public Instruction Austin, Texas

Dear Sir:

response to OpinionNo. O-2838 Re: Group Insurance for teachers in independent

schooldistricts and paymentof premiums out of school funds.

In your letter of Ootober 17, 1940, you request our opinion in the following

questions:

: "May the Board of Trustees of the Fort Worth Independent

SchoolDistrict

use localmaintenance funds to pay the employer's part on a group life insurance

premiun for the Fort Torth teachers?
"Couldthe Board of Trusteesof an independent school district

make provisionfor the payment of the employer's

part of the premium of group life insurance of its teachers,if provision is made **in** the teachers* contracts

wherebythis premiws payment is a prt of the teachers'

annual salaries?"

Y& are unableto find any statute which would authorizethe trustws of the Fort Worth Independent School District to contractfor or expend local maintenance funds to pay the employer's part of a group life insurance

premium for the district's teachers. In the sbsence of such a statute,such funds may not be so expended.

This questionis in all material respectsthe ssme as that considered

by t'nis

department

in our Opinion No. O-2469, copy of rhich is attached

hereto, and it was them held that public school funds could not lx used to pay for group insurance.

Your second questionis answeredin the negativefor soveral reasons. (1) Section 1 of Article 47G4a provides:Bon. T. **Y.** Trhble, **Page 2**  **(O-2838)**

"GroupLife Incuranco ic horobydeciarodto bc that fona of life inourance ocvoring

not loss thnn twenty-five

employees

writton under a.

policy issued to the employer,

the premiws for which ictc bo paid by the employeror by the employer and employee jointly and insuring

all of his employees, or all of **any** class or classes

thereofdetermined by conditions pertaining

to the employment, **for** smcuntsof insurance based upon scme plan whioh will precludeindividual selection,

andfor the benefitof personsother than the employer;

. . ."

It will be observed that group insuranae cannotunder this statute bs had unless the schooldistrict pays its art of the premium.
If your second questionis predicated upon the idea of paying the teachers

a salary,

and then requiring them to pay the school districtsI portionof the premiurm for the insurance, such procedure

nould not bring the insurance

under the above definition of group insurance for the reason that the teachers

would, in faot, bs paying all **of** the premium;while the above statuterequires the school district to pay a part of the same. (2) If you intend by your second questionto provide in the teachers'

contracts

to pay them so much money for salaries, provided a **certain** amountof same shouldbe used to pay the schooldistrict's part of ths premium on group insurance, the plan would amount to nothing **more** than an evasionof cur ruling to the first question suhaittedr for the reason that you would still be doing indirectly what you cannot

do directly. This principle

is sustained

by the'court

of CivilAppealsat San Antonio in the case of Godsonvs. Jones, 190 S.VL 2.53:

"Appellant

was the principal

of schoolXo. 1, district

No. 2, sndwas being paid the sum of $75 cut of the free school money of the state. **About the**  same time of his employment as principal,

he was also employed

bythe trusteesas janitor with a salary of $50 a month. Vouchers were issued to appellant for his services

as janitor,and the county ,superintendent, N. S. Jones, apprcvedtwo of them before he went cut of office. He was succeeded by Xiss Eva Staickland,

and she refusedto apwove the seven remaining vouchers. The matter ~8s appealedto the county board of education, then to the state supcrtitendent, and finally to the state board of education; the last tw, mentioned sustaining the county superintendent. No specialtax was levied by sohools1 and 2, with whioh appellant

was connected,

but vere run on statemoney alone. Appellantperformedservices both as principal and janitor'for

nine months, the time for which he was employed

by the trustees. Yiss Strickland resignedHon. T. M. Trimble, Page 3 (O-2838)

and was suooesded

by appellee. The vouchers were not presented

to her for approval.
"The court found

that the contract

with appellant, for his servicesas janitor was made to evade the terms of article 2780 and article 2781, Revised Statutes,

whioh provide, among other things,that a teacherholdinga first-grade certificate

shall in no event reoeive

more than $75 a month frcm the public free school fund. The court also found that a man named TristanYmldanado was also employedas janitorin the same school in which appellant was employed

as principal

and janitor, The law could not be evaded in that way, and the vouchersgrantedby complaoent

trustees

were properlyrejected by the county superintendent.It is a preposterousproposition that a country school, or two country schools, would requirethe servioesof two janitors. Ve are oTthe opinionihat it was never intended that the principal

of a school shouldbe paid tvm salaries , cut of the public free school money.
"The first sectionof article 2772, Rev. Stats., which is cited by appellant, provides

that the state and county available school funds shall be used exclusively

for the payment of salaries ofteachers

and superintendents

and fees for taking the soholastic cansuo,

and we fail to see what aid and comfortthat gives a man who is endeavoring to obtain a part of the schoolfund for services as a janitor,

vhen he has drawn for the same time pay as principal of the sohool. It is true that in the second sectionof the artiolecited it is provided that a surplusof such state fund may be used to pay janitors and for other enumerated

purpopes,

but not to increase the pay of teachers. The other articles snd decisionscited do not sustain

the contention

of appellant.
"The judgmentis affirmed."

In the case cited,the school trustees couldnot lawfullypay mere than $75.00 to the teacheras salary, and the tNStSeS undertook to give him additional money as janitor. The court held that it could not bs done.

In your situation you cannot legallypay for group insuranoe with your schoolfunis, and in cur opinionyou would be doing the ssme thing by providing

in the contracts

with the teachers that they bs required to paythe distriot's part of the premilrm of the group insurance.Hon. T. M. Trimble, Page 4 (O-2838)

(3) If the trusteesshouldprovide in their contracts dth the teachers that theymustn.~ea certainpart of thbir salary to pay for premiums

on insurance,

it would seem that the amount of the so-called salarywhich was to be used for the paymentof such premiums would still be publicmoney and, therefore, not available

for the purohaseof insurante.
The SupremeCourtof Unnesota, inthe case of State ox rel, Jennison

vs. Rogers,reported in L.R.A. 58, page 663, involving a contract betweentrustees

and teachers

whereby a certainamount of the teachers' salaries

was retained

for-the purposeof creatinga teachers'retirement fund, it MS held that the money so retained was still publicmoney, and could not be so usedr

"Theauthority

of the board is also questioned upon the groundthat the money retainedis in fact public money, and not the private funds of the teach) a-6. It does not seemver- materialwhether the money so assigned

bs considered

public or private funds -- the result

must be the some. But it is interesting to notice what the praotical

effect is of carryingcut the plan outlinedin the petition. If the entire salary had been paid to relator, and he had then voluntarilyrelinquishedor paid back 1 per cent thereof for the purposes expressed,

it would clearly

be private

money; but 1 per cent never had been paid in fact, and it never vrascontemplated

that it should

be. When the relator entered into the contract

he surrendered

avsolute controlover that portionof his salary,and, in effect, entered'into
a contract

with the board that his salaly would bs 99 per cent of the amountnominallystated. So from this view of the case it appearsto us that the money retained nsvsr left the treasury, but remained

publiomoney, and the board of education had no authority

to divert it from the uses mentionedin the statute."
This same case also holds that a contract between trusteesand teachers, whereby the teachers are required

to pay a certainamount of their salaries into a teachers'

retirement

fund could not be sustained on the ground that such plan would be in the interest of the schools,and the contract was declaredto be ultra vires and void.

If a contract

creating

a teachersretirement fbnd oould not be sustained,

then, in cur opinion,school trustees,in the absenceof some statuteauthorizing the same,

would not have the power to require in teachers'contracts that they carry insurance of any kind..

Hon. T. M. Trimble,Page 6 (O-2636)

Until the Legislature has authorized

the expenditure

of school finds for the purchase of group life insurance, you are advised that it is cur opiniomthat such funds cannot be so used.

Yours very truly

ATTORNEY GENFRALOF TEXAS

By /s/ Grover Sellers

Grover Sellers First Assistant

Enclosure

APPROVED DEC 18, 1940 /s/GERALD C. MA3iN ATTORNEY.GENSRAL

OF TEXM : -.

THIS OPINION CONSIDZRED Ali'D APPFJXED IN LXWl'ED CONFERENCE APPROVED Opinion Cqrrmittee By Bm Chairman