The Honorable Henry Rothell                      Opinion No.   H-   75
Administrator,   Texas
Employment     Commission                        Re:     Whether
                                                          ’        $29 of the Texas
Austin,  Texas 78701                                     Unemployment      Compensation
                                                         Act elected coverage for all
                                                         services  performed for the
                                                         State, notwithstanding the
                                                         exemptions from employment
                                                         cbntained in §%+(g)( 5) of that
Dear Mr.   Rothell:                                      Act.            I9

    Your request involves the construction    of various statutes governing the
Texas unemployment    compensation  program;     ‘parti<ularly   With reference
to amendments’ adopte~d by the 62~~d’Legi~l~~;e~“in’1~71     and heir effect upon
State universities.

    The ~Texas Unemployment         Compensation    Act is designed to provide
insurance or compensation        for workers or employees ‘during periods of
unemployment;     it serves a beneficial public purpose,       and ‘is$ ,be liberally
construedto   .effect that’purpose.     Friedman’v.    ’American’Surity    Co;; 151
                                                                               .~r
S. W. 2d 570 (Tex. 1941); Meggs v. Unemploym .ent Compensation            Commission,
234 S. W.‘2d 453 (Tex.‘Civ.App.,       1950, writ-ref’d.  );~Rowan Oil’Co.    v. Texas
Employment    Commission,        263 S. W. 2d 140 (Tex. 1953 ); 52 Tex. Jur. 2d,
Social Security,    5 19 et seq.

    Article   5221b-17,  V. T. C. S. t covers,  among other things the definitions
of various words that appear in the statute.       It defines “employers”    and the
services    considered  to constitute “employment”     under the Act.   Prior to
1971, neither the State of Texas nor any of its instrumentalities       were (or
could become)     “employers”    under the Act.   In that year, Article   5221b-6 was
amended to provide:




                                      p.   343
The Honorable       Henry   Rothell,   page 2      (H-75)




             “The State of Texas,  a branch or department
        thereof,  or an instrumentality  thereof may volun-
        tarily elect (except with respect to a State Hospital
        or a State institution of higher education) coverage
        as a subject employer . . . .‘I [Art.    5221b-6(b)(2)]

At the same time, Article 5221b-17 was amended so that the definition of
“employer”    would include “a hospital or an institution of higher education
. . . located in this State and operated by this State . . . for which~ services
are performed    which constitute employment     . . . . ” [Art.    5221b-17(f)(6)].
To the definition of “employment.     ” which had previously     simply excluded
all services  performed    in the employ of the State or its federally non-
taxable instrumentalities,    ‘was added a proviso:

        1, . .   .. effective January 1, 1972, this exclusion
        from     the definition of employment     is not appli-
        cable      60 services   performed  in the employ of a
        State     or instrument.aIity ther,eof for. a State hos-
        pital    or State institution of higher education. ”
        [Art.       522lb-17(g)( 5)(F)].

      Already then excluded from the definition of “employment”           were
 services performed         by”student nurses and interns employed in hospitals
‘[Art. ‘5221b-17(g)(5)(1)]     , and additionally excluded thereafter were services
performed     by a student working for, the school,       college, or university   in
which he was enrolled,:. [ Art. 5221b-17( g)( 5)(S); services      performed    in the
 employ of a State school which is not an institution of higher education
 [Art.   5221b-17(g)(5)(0);      services performed   in the employ of a hospital in
 a State prison by an inmate [Art., 5221b-17(g)(5)(R)].

     Thus, Article   5221b-17 definitions,   taken alone, would require State
colleges   and hospitals to become employers       subject to the Act but would
exclude from coverage      services   rendered to them by students,    etc. Other
State ~instrumentalities   could elect to become     employers   under the Act.,
but the “service   exceptions”    of Article 5221b-17 definitions would auto-
matically.exclude    certain employees from the elected coverage.

     But another    provision   was at the same        time added to Article   522113-6.
It provided:




                                        p.   344
The Honorable         Henry Rothell,   page 3    (H-75)




                 “Any employing unit for which services    that do
            not constitut.e empl.oyment as defined in this Act are
            performed    may file with the Commission    a writ.ten
            election that all such services performed    by indivi-
            duals in its employ in one (1) or more distinct estab-
            lishments   . . . shall be deemed to constitute employ-
            ment for all purposes of this Act . . . .‘I [Art.    5221b-
            W)(6)].

     Also    added was Article     5221b-22d    which reads:

                  “The State of Texas hereby elects, .with.
            respect,to   all services ,performed in the employ
            of this State or:any branch nor department thereof
            or aqy Jnstrumentality    thereof which is not other-
            wise an employer subject to this’Act,-     to become.
            a reimbursing     employer subject to this Act, and
            ali.-setices   performed   in the -employ of thisrstate
            or .of any branch or, department or ~instriunkitality
            thereof. shall be deemed to constitute employment.
            This election does not apply to political subdivi-
            sions of this State. ”

  ~. :. We views the above.Tarticle (5221by22d) .as accomplishing’ two things:
 (1) it consktutes    an election by the State [pursuant to Atticle.:5221b-6(b)(2)]
 that all -units-of State .government not already participating         ,as lemployers”
‘(even though not’defined as such by Article 522lb-17)           shall become     ;
  “employers”     &bject~‘to the Act, and (2) it constitutes      a sufficient written
  election under Articie     5221b-6(b)(6)    that as services   to units of State
 government      are to be considered      lemployments”     even though excluded
 from Article     5221b-17 definitions.

    Careful reading of the provisioq      in Article 522Pb-6 and Article     5221b-17
having to do with~colleges    and hospitals   indicates that the parenthetical
exclusion of college& and hospitals     [in Article   5221b-6(b)(2)]   from those
units of State government    entitled to elect “employer”      status was intended
to signify that State colleges .and ho~spitals - at least as respects      “defined”
employments     - were automatically    to become “employers”        without   the
opportunity to decline.




                                         p.    345
The Honorable     Henry Rothell,     page 4        (H-75)




     The complementing,        expanded definition of “employer”          in Article
 5221b-17 did not include all State colleges        or hospitals.     It included a
“hospital or institution ofhigher        education . . . operated by this State
. . . for which services       are performed     which constitute employment.
. . . ‘I [Art.    5221b-17(f)(6)].     Absent the elections of Article 5221b-22d,
State colleges    and hospitals would not be “employers           subject to the Act”
as respects    student employees,       etc. (because their services        would not
constitute “employment”        under the Article 5221b-17 definition),         though
as to other employees       rendering services       within the definition,    they
would be subject to it.      The same is true for the definition of “employment.           ‘I
Though the general Article         522113-17 “service    performed     in the employ of
the State” exclusion was specifically         made inapplicable to State colleges       and
hospitals  [Art.    5221b-17(g)( 5)(F)],    the specific designation of certain
services   as not constituting      employments     (applicable   to all work situations,
private or public),    would affect colleges      and hospitals     in the absence of the
elections made by Article        5221b-22b.

    Inother words,   were it not for the provisions  of,Article    5221b-22d,
students employed by State colleges,    student nurses or itierns employed
by State hospitals, patients employed by State hospitals,      etc. ,, would not
be covered by the Act.

     However,     it is our .opinion that the elections evidenced by Article
5221b-22d had the effect of placing,under         the coverage umbrella every
service performed       on behalf of the State or one ~of its instrumentalities
(excepting political subdivisions)       by every-person     employed by it or them,
without regard to definitions of “employer”          or “employment”      contained in
Article    5221b-17.    While those definitions are still vital to private and
political-subdivision     employers    who have not themselves       elected otherwise,
they are made by Article        5221b-22d inapplicable     to the State or any of its
other instrumentalities,       including its hospitals and institutions of higher
education.     We think the election to become a reimbursing           employer subject
to the Act made “with respect to all services”          and on behalf of “any instru-
mentality [of the State] which is not otherwise an employer”              subject to
the Act indicates an intent that employees         of State hospitals and colleges
not already covered,       be covered.     This is reinforced    by the further election
that “all services     performed    in the employ . . . of any instrumentality
. . . shall be deemed to constitute employment            [ excepting only political
subdivisions].     ”




                                        p.   346
The Honorable    Henry     Rothell,   page 5     (H-75)




     This construction     reconciles   all of the statutes,   as amended, which
would otherwise      seem to conflict.     It is our duty to reconcile them if
possible,   all the while searching for legislative       intent.  We believe this
construction    serves that purpose.       It may have been that t:he Legislature
so structured these amendments          that a veto of the Bill enacting Article
522lb-22d,    if it occurred,   would leave State colleges and hospita1.s unaf-
fected by the general exclusion of “services         performed    in the employ of
the State” and on a par wi,th privately operated institutions insofar as the
operation of the unemployment         compensation    program was concerned.

    Whatever    accounts    for the peculiar     interlocking    of the various
statutory provisions,   we think this construction  eliminates any surface
repugnancy between     Article 5221b-22d and the other articles and obviates
any necessity  to declare any of the ,statutes inoperative.

                               S.U M M.A       R Y

             The~elections   noticed by Article 5221b-22d,
        G.T.C.S.,     have the effect of making the State ‘and
        all its branches,   departments .or instrumentalities
        (expressly   excepting political subdivisions   but in-
        cluding hospitals and institutions of higher education)
        reimbursing     employers   under the Texas Unemployment
        Act, and bringing all services      performed  for them
        within the coverage of the Act, whether or not such
        services   would otherwise    constitute covered “employ-
        ment” under other provisions.

                                              Very   truly yours,




                                               OHN L. HILL
                                              Attorney General      of Texas




DAVID M. KENDALL,            Chairman
Opinion Committee                        p.    347
