                               ATTORNEYGENERAL                      OF    TEXAS
                                            GREG        ABBOTT




                                                August 17,2004



The Honorable Ray Allen                                   Opinion No. GA-0234
Chair, Committee on Corrections
Texas House of Representatives                            Re: Whether, under section 1551.114 of the
Post Office Box 2910                                      Insurance Code, an eligible retiree of a community
Austin, Texas 78768-2910                                  supervision   and corrections      department may
                                                          participate in the Employees Retirement System
                                                          group benefits program         after meeting     the
                                                          requirements of subsection (c)(2), with no further
                                                          requirements, such as the “rule of 80” set out in
                                                          section 1551.102 (RQ-0213-GA)

Dear Representative     Allen:

         Section 1551 .I 14 of the Insurance Code, adopted in 2003, provides that retired employees
of community supervision and corrections departments (“CSCDs”) may participate in the state
employees’ group benefits program, administered by the Employees Retirement System (“ERS”),
effective September 1,2004. seeT~x.W.         CODEANN. 4 1551.114 (Vemon2004);        Act ofMay26,
2003,78th Leg., R.S., ch. 1030, $3 1.03,3.01(b), 2003 Tex. Gen. Laws 2975,2976-77,2978.          You
ask whether, under section 155 1.114, an eligible retiree of a CSCD may participate in the ERS group
benefits program after meeting the requirements of subsection (c)(2), with no further requirements,
such as the “rule of 80” set out in section 1551.102.’

I.      CSCDs and Their Emalovees              Generally

          The district judge orjudges trying criminal cases in ajudicial district must establish a CSCD
to “conduct presentence investigations, supervise and rehabilitate defendants placed on community
supervision, enforce [community supervision] conditions .            , and staff community corrections
facilities.” TEX. GOV’T CODEANN. 5 76.002(a)(Z) (V emon 1998). The judge appoints or the judges
appoint CSCD employees as necessary to accomplish these tasks, and the judicial districts served
by a CSCD pay the employees’ salaries. See id. $5 76.002(a)(2), .006(b) (Vernon 1998 & Supp.
2004). As section 76.006 ofthe Government Code stipulates, these employees generally arenot state
employees, although they are state employees for limited purposes:              “Except as provided by
Subsection (c), [CSCD] employees are not state employees.” Id. 5 76.006(a) (Vernon Supp. 2004).


            ‘See Letter from Honorable Ray Allen, Chair, Committee on Corrections, Texas House of Representatives, to
Honorable Greg Abbott, Texas Attorney General (Mar. 25,2004) (on file with the Opinion Committee, also available
of http:ii~.oag.state.tx.us)     [hereinafter Request Letter].
The Honorable Ray Allen - Page 2                (GA-0234)




Subsection(c) expressly deems CSCD employees “state employees for the purposes of Chapter 104,
Civil Practice and Remedies Code[, which governs state liability for public servants’ conduct], and
Chapter 501, Labor Code[, which concerns state employees’ workers’ compensation insurance
coverage].” Id. 5 76.006(c).

         At present, and until September 1,2004, CSCD employees’ benefits are provided under a
contract with one of the counties that the CSCD serves. See id. 5 76.006(a). CSCD employees are
then governed by the personnel policies of that county, and both employees and retired employees
receive benefits “equal to        benefits of other employees of that county.” Id. On and after
September 1, under the version of subsection (c) that will become effective on that date, CSCD
employees and retired employees are “eligible to participate in the group benefits program
established under” chapter 155 1 of the Insurance Code, as provided by section 155 1.114 of the
Insurance Code. Id. 5 76.006(c).

II.     Relevant Statutes

        A.      Insurance   Code Chapter 1551, the “Texas Employees Group Benefits Act”

                 Chapter 1551, the Texas Employees Group Benefits Act, see TEX. INS. CODE ANN.
9 155 1.001 (Vernon 2004), is expressly intended to, among other things, “provide uniformity in life,
accident, and health benefit coverages for all state offricers and employees and their dependents”
and to “recognize the service to the state by employees and retired employees of [CSCDs] by
extending to them and their dependents the same life, accident, and health benefit coverages as those
provided under this chapter to state employees, retired state employees, and their dependents.” Id.
3 155 1.002( 1), (7); see also id. 5 155 1.005(a) (defining the term “health benefit plan” as “a plan that
provides, pays for, or reimburses expenses for health care services”). Section 1551.101 governs a
state employee’s eligibility in the ERS group benefits program, see id. 5 155 1.101(b); see also id.
$5 1551.003(6), ,008 (defining the term “employee” and limiting its use to an individual eligible to
participate in the group benefits program under section 155 1.10 1 “unless a different meaning is
plainly required”); section 1551.102 governs an ammitant’s participation in the group benefits
program, see id. 5 1551.102(a); see also id. $5 1551.003(2), ,008 (defining the term “amntitant” and
limiting its use to an individual eligible to participate in the group benefits program under section
155 1.102 “unless a different meaning is plainly required”).

         Section 155 1 .102(b)(2)(A) lists, among the retired employees who are eligible to participate
as ammitants in the ERS group benefits program, individuals who retire under ERS jurisdiction and
who “receiveI] or [are] eligible to receive an annuity under Section 814.104(a)(2), Government
Code, and [have] at least 10 years of eligible service credit.” Id. $ 1551.102(b)(2)(A).        Section
8 14.104(a)(2), which provides for an ERS member’s eligibility for service retirement generally,
states that, “a member who has service credit in the [ERS] is eligible to retire and receive a service
retirement annuity if the member: . . has at least 5 years of service credit in the employee class and
the sum of the member’s age and amount of service credit in the employee class, including months
of age and credit, equals or exceeds the number 80.” TEX. GOV’T CODE ANN. 3 814,104(a)(2)
(Vernon Supp. 2004). This is the “rule of 80” about which you ask. See Request Letter, supra note
1, at 1.
The Honorable Ray Allen - Page 3               (GA-0234)




         Under section 1551.114, a CSCD employee or retired employee “shall be treated as an
employee [eligible to participate in the ERS group benefits program] or annuitant [eligible to
participate in the ERS group benefits program] .     only as provided by this section.” TEX. INS.
CODE ANN. 5 155 1.114(b) (Vernon 2004). Rather than contract with a county for group benefits,
section 155 1.114 requires a CSCD to “participate[] in the group benefits program administered by
the” ERS board of trustees. Id. 5 1551.114(c). Participation is limited to:

                       (1) active employees of a [CSCD];

                      (2) retired employees of a [CSCD] who retire on or after
               September 1,2004, and who:

                               (A) have been employed by one or more
                       [CSCDs] for a total of at least 10 years of creditable
                       service; and

                                (B) meet all the requirements for retirement
                       benefits prescribed by the Texas County and District
                       Retirement System; and

                      (3) eligible dependents of the active employees      and retired
               employees described by Subdivisions (1) and (2).

Id. (emphasis added). A retired employee is eligible to participate in the ERS group benefits
program “on application to the” ERS board of trustees. Id. 4 1551.114(f). “On application,” the
employee automatically receives ERS “basic coverage for ammitants unless the retired employee
specifically waives coverage or unless the retired employee is expelled from the program.” Id. The
Texas Department of Criminal Justice is responsible for paying contributions for CSCDs’ retired
employees:

               A retired employee is not eligible to receive a state contribution . . .
               for premiums.      The community justice assistance division of the
               Texas Department of Criminal Justice is responsible for payment of
               the contributions for each of a department’s retired employees and the
               retired employees’ participating dependents that the state would make
                 . if the retired employees were retired state employees.         Each
               participating retired employee shall pay that portion of the cost of
               group coverage selected by the retired employee that exceeds the
               amount of division contributions.      The retired employee shall pay
               contributions required from the retired employee in the manner
               prescribed by the [ERS] board oftrustees. Each [CSCD] shall notify
               each ofits retired employees ofthe eligibility for participation and the
               costs associated with participation.

Id. All contributions received under section 1551 ,114 from the community justice assistance
division ofthe Texas Department of Criminal Justice and retired employees “for basic, optional, and
The Honorable Ray Allen - Page 4                      (GA-0234)




voluntary coverages under the [ERS] group benefits program shall be paid into the employees life,
accident, and health insurance and benefits fund” and the ERS must use it “to provide those
coverages as provided by this chapter.” Id. $ 155 1.114(g).

        B.       The Statute Creating the Texas County and District Retirement System

                 The Texas County and District Retirement System is established under title 8, subtitle
F ofthe Government Code (chapters 841845). See TEX. GOV’T CODE ANN. tit. 8, subtit. F (Vernon
1994 & Supp. 2004). Under section 844.102(a)(l) and (2), which sets out general eligibility criteria
for County and District Retirement System employees, an employee must be “at least 60 years old
and [have] at least 12 years of credited service” or have “at least 30 years of credited service” to
receive retirement benefits. Id. 5 844.102(a)(l)-(2) (V ernon Supp. 2004). Section 844.102 also
recognizes four alternative eligibility criteria that a county and district may choose instead of the
general criteria. See id. § 844,102(a)(3)? For example, section 844.207 applies to subdivisions that
began participating in the county and district retirement system after September 1, 1985 and “to all
other subdivisions that have adopted” the section’s plan provisions. Id. 9 844.207(a). Under section
844.207(c), a member who is younger than sixty years old may receive retirement benefits if he or
she meets the rule of 80. See id. 5 844.207(c)(2). Section 844.210, which applies to any subdivision
that adopts its plan provisions, also sets the rule of 80 as a means by which a member younger than
sixty years may be eligible to receive retirement benefits. See id. 5 844.210(a), (c)(2). Section
844.211, which likewise applies to any subdivision that adopts its plan provisions, establishes arule
of 75 for members less than sixty years old. See id. 5 844.21 l(a), (c)(l). Thus, a member who is
less than sixty years old is eligible for retirement benefits if the member “has a sufficient amount of
eligible credited service . that, when added to the members attained age, equals or exceeds the
number 75.” Id. 5 844.21 l(c)(l). Finally, under section 844.212, which applies to any subdivision
that has adopted its plan provisions, a member is eligible to receive retirement benefits ifthe member
has at least twenty years of “eligible credited service.” Id. 5 844.212(b)-(c).

III.     Analvsis

         A.       The Issue

                Although we have set out all of the provisions of section 155 1.114 relating to retired
CSCD employees, your question implicates in particular section 155 1.114(c)(2)(B), which we have
italicized above.    See Request Letter, supra note 1, at 1-2; supra p. 3 (quoting section
155 1.114(c)(2)(B)). You explain that the ERS has indicated that a retired CSCD employee who has
at least ten years of creditable service will be eligible to participate in the ERS group benefits
program only if he or she satisfies the “rule of 80.” Request Letter, supra note 1, at 1.’ Letters we



         %‘ee generally Brief attached to Letter from Honorable Larry Gist, chairman, Texas Board of Criminal Justice
Judicial Advisory Council, District Senior Judge, to Nancy Fuller, Chair, Opinion Committee, Office of the Attorney
General, at 2 (May l&2004) (on tile with the opinion Committee).

         ‘See niso Letter from Leighton Iles, Director, Fort Bend County CSCD, to Honorable      Greg Abbott, Texas
Attorney General, at l-2 (May 17,2004) (on tile with the Opinion Committee).
The Honorable Ray Allen        - Page 5              (GA-0234)




have received from current employees of the Travis County CSCD indicate that, under the Travis
County system, they can retire with benefits when they satisfy the rule of 75.4 After September 1,
2004, however, under the ERS policy you have described, the employees would be able to retire with
benefits only if they satisfy the rule of 80. You suggest that the rule of 80 is not necessarily
consistent with eligibility standards of the Texas County and District Retirement System and
therefore contravenes section 155 1,114(C)(2)(B) of the Insurance Code. See Request Letter, supra
note 1, at 1.

         A brief we have received from the ERS contends that it alone has authority to determine
questions relating to individuals’ eligibility to receive group benefits under chapter 1551 .5 While
the ERS has statutory authority to determine issues related to enrollment, it may not impose upon
CSCD employees standards for participating in the group benefits program as an ammitant that differ
from those expressed in section 1551 .114. The ERS, as an administrative agency of the state, may
not impose requirements additional to those set forth in statute. See Tex. Dep ‘t of Pub. Safety v.
Story, 115 S.W.3d 588,592 n.10 (Tex. App.-Waco 2003, no pet.) (stating that “an agency rule may
not impose additional burdens, conditions, or restrictions in excess of or inconsistent with the
relevant statutory provisions”) (quoting R.R. Comm ‘n of Tex. v. ARC0 Oil & Gas Co., 876 S.W.2d
473,481 (Tex. App.-Austin 1994, writ denied)). Additionally, the ERS’s construction of chapter
155 1 is entitled to judicial deference, but only if the statute is unclear. See Bd. of Trs. OfEmployees
Ret. Sys. Y. Benge, 942 S.W.2d 742, 744 (Tex. App.-Austin               1997, writ denied); McMullen v.
Employees Ret. Sys., 935 S.W.2d. 189, 191 (Tex. App.-Austin 1996, writ denied).

         Section 1551 .114(c)(2)(B) is not unclear. By its plain terms, the section incorporates as the
standard for group benefits participation “the requirements for retirement benefits prescribed by the
Texas County and District Retirement System.” TEX. INS. CODE ANN. $155 1.114(c)(2)(B) (Vernon
2004). As we have explained, the requirements for retirement benefits under title 8, subtitle F of the
Government Code, providing for the County and District Retirement System, depend upon whether
the particular county has adopted the general plan provisions of section 844.102 or the optional plan
provisions of section 844.207, ,210, ,211, or ,212. Consistently with section 844.211 of the
Government Code, some counties may have implemented the rule of 75 rather than the rule of 80.
Requiring an employee who is currently subject to the rule of 75 to work additional years to become
eligible for ERS group benefits upon the employee’s retirement is an additional requirement that the
ERS may not impose.

        Moreover, section 155 1.114(b) states, on its face, that a retired CSCD employee “shall be
treated as an    annuitant only as provided by this section.” TEX. INS. CODE ANN. $1551.114(b)



          ‘See Letter from Diana Loving, Travis County CSCD, to Ed Burbach, Deputy Attorney General for Litigation,
Offke ofthe Attorney General (May 11,2004) (on iilewitbthe OpinionCommittee);    Letter fromGene D. O&s, Travis
County CSCD, to Ed Burbach, Deputy Attorney General for Litigation, Office of the Attorney General (May 11,2004)
(on tile with the Opinion Committee).

        ‘.SeeLetter fromPaula A. Jones, GeneralCounsel, EmployeesRetirementSystem ofTexas, to Nancy S. Fuller,
Chair, Opinion Committee, Office of the Attorney General, at 2 (June 25,2004) (on file with the Opinion Committee)
[hereinafterERS Brief].
The Honorable Ray Allen     - Page 6           (GA-0234)




(Vernon 2004) (emphasis added). The ERS argues that the term “ammitant” is a term of art that
refers back to section 1551.102, which establishes the rule of 80 for ammitant eligibility generally.
See ERS Brief, supra note 5, at 4-5. Thus, according to the ERS, retired CSCD employees must
comply with section 155 1.102’s eligibility standards before becoming eligible for retirement benefits
from the ERS. See id. at 4-7. Yet, as the statute expressly states, CSCD employees are amruitants
“only as provided by” section 1551.114. TEX. INS. CODEANN. $ 1551.114(b) (Vernon 2004). In
addition, retired CSCD employees by definition could never become amruitants under section
155 1.102: under subsection (b), an individual is eligible to participate in the group benefits program
if “the individual retires under the jurisdiction of the” ERS. Id. 5 155 1.102(b). The ERS admits, in
its brief, that CSCD employees do not “retire under ERS’[s] jurisdiction.” ERS Brief, supra note
5, at 6.

         Finally, nothing in the 2003 legislation makes CSCD employees “state employees” who
would be subject to the eligibility standards set out in section 1551.101 or 1551.102 ofthe Insurance
Code. Section 1551.114 does not expressly make CSCD employees “state employees” and in fact
stipulates that neither an active CSCD employee nor a retired CSCD employee is “eligible to receive
a state contribution      for premiums.” See TEX. INS.CODEANN. 5 155 1.114(e)-(f) (Vernon 2004).
Likewise, section 76.006(c) ofthe Government Code, which addresses CSCD employees’ status, has
not been amended to state that CSCD employees are state employees for the purposes of Insurance
Code chapter 155 1. See TEX. GOV’T CODEANN. 5 76.006(c) (Vernon Supp. 2004).

         We conclude, therefore, that, under the explicit terms of section 155 1.114(c)(2)(B), a CSCD
employee is eligible to participate in the ERS group benefits program under section 1551 .114 when
the employee satisfies the eligibility standards that have been adopted in the county that currently
provides the employee’s benefits. For example, a CSCD employee in a countythat has implemented
the rule of 75 may retire and participate in the ERS group benefits program under section 155 I 114
of the Insurance Code when the employee satisfies the rule of 75.
The Honorable Ray Allen - Page 7              (GA-0234)




                                      SUMMARY

                        In accordance with section 155 1.114 of the Insurance Code,
               a retiree of a community supervision and corrections department may
               participate in the Employees Retirement System group benefits
               program after meeting the requirements of section 155 1.I 14(c)(2),
               with no farther requirements, such as the “rule of SO” set out in
               section 1551.102.




                                             Attorney General of Texas


BARRY R. MCBEE
First Assistant Attorney General

DON R. WILLETT
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Kymberly K. Oltrogge
Assistant Attorney General, Opinion Committee
