                                  May    13, 1975


The Honorable Henry Rothell                         Opinion   No.   H-   605
                                    r’
Administrator
Texas Employment     Commission                 Re: Whether teachers and
Austin,  Texas 78778                            other school employees     will
                                                be eligible for Special Unem-
                                                ployment Assistance    under
                                                the Emergency    Jobs and
                                                Unemployment    Assistance
                                                Act of 1974 during the period
Dear Mr.   Rothell:                             between school terms.

    You have requested our opinion concerning         whether public school
employees  will be eligible during the summer        for benefits under the Special
Utiemployment    Assistance  Program.    Public      Law 93-567;   13 U.S.  Code
Gong. and Ad. News 1974, p. 6827.

     The Special Unemployment    Assistance   Program     (hereinafter    referred
to as the SUAP) was approved on December        31, 1974.    Its purpose was to
provide special assistance  for unemployed workers         “who are not otherwise
eligible for unemployment   allowances   under any other law. ” Sec. 201. While
the program is exclusively   federally funded, benefits are available only to
those persons who are “totally or partially unemployed”         under state law and
who are not otherwise disqualified.     Sec. 203(Z).   -See art. 5221b-3(c),
V. T. C. S., which requires an applicant to apply for available       suitable work
when so directed by the Commissioh.

    It is our understanding     that some 17 to 18 states have determined teachers
to be eligib1.e.  121 Gong. Rec. 2751 (daily ed. April 15, 1975). However,       the
United States Congress     i,s presently considering   a bill which would deny SUAP
benefi,ts to teachers  (H. R. 5899).    If such a provision is enacted, it will of
course control the question.      And see H. B. 1126, now pending in the Legislature.

    Article  522lb-17(g)(5)(F),   V. T.C.S.,  excepts state employees   and those
of political subdivisions    from the coverage of the state’s unemployment    com-
pensation system.      While the state’s employees   are now within the system




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The Honorable   Henry   Rothell,   page 2    (H-605)




pursuant to article 5221b-22d,     political subdivisions   retain an option
as to whether to participate    in the system.    It is our understanding   that
none of such subdivisions    presently participate.     In addition, we are aware
of no’ other unemployment      compensation    system under which public school
employees   as a class are eligible to participate.      These empl0yee.s are
therefore within the class of workers eligible for SUAP benefits.         Sec. 201.

     Thus, it must be determined whether public school employees     are
“unemployed”    during the period between school years.   Our discussion    is
limited to those employees    who are not working during the period.   Article
5221b-17 (lJ. V. T. C~.S., provides:

        An individual shall be deemed .‘totally unemployed’
        in any benefit period during which he performs   no
        services  and with respect to which no wages are
        payable to him.

    It is clear that these public skhool employees     are performing    no services
during this interim period.     See, Mikolaicziak   V. Micm
Security Commission,      198 N. W. 2d 442 (Mich. 1972);Y%nceyv.      Department
of Employment,     455 P. 2d 679 (Idaho 1969); Studley V. Board of Review of
Department     of Employment   Security,  147 A. 2d 912 (R. I. 1959).  They will
therefore be:eligible   for benefits if no wages are paid or payable to them
with respect to this period.

     At the discretion   of the local school board, many teachers are paid their
yearly salaries    in 12 monthly payments.     Education Code, section 16. 301(c).
Others are paid in 10 monthly installments      throughout the school term.   In
our view our past decisions and the relevant case law indicate that any dis-
tinction which could be drawn between the two methods is without merit.

    In Attorney General    Opinion H-404 (1974) we held persons performing    no
services   to be unemployed   notwithstanding their receipt of a guaranteed annual
wage.    We stated that:

        . . . these payments are made in recognition      of
        services  performed   and are allocable to periods
        of actual employment.




                                      p.    2684
 The Honorable   Henry   Rothell.   page 3      (H-605)




 Similarly,    receipt of severance pay has been held not to constitute wages
 paid with respect to the period involved.       Western Union Tel. Co. V. Texas
 Emploment        Commission,    243 S. W. 2d 217 (Tex. Civ.App.    --El Paso 1951),
 dism’d.    W. o. j., 243 S. W. 2d 154 (Tex. Sup. 1951). Attorney General Opinion
 WW- 13 (1957) held that supplemental unemployment          benefits were not paid
 with respect to ,the period during which no services       were performed,   and
 their receipt was consistent with the statutory definition of “unemployed.       ”

     In our opinion the payments some teachers       receive during the summer
 months are made in recognition    of prior services    rendered and are not paid
 with respect to employment   for the interim period.      Such teachers are there-
 fore “unemployed”   under our state law.    Those employees      who receive no
 payments during this periodare    likewise “unemployed.      ” Consequently,
 public school employees   who are not performing      services  during the period
 between school years are eligible for SUAP benefits.

                           SUMMARY

             Public school employees     who are not performing
         services  during the period between school years are
         “unemployed”    under state law and are eligible for
         Special Unemployment     Assistance   benefits unless
         otherwise disqualified.

                                             Very   truly yours,




APPROVED:
                                     u       Attorney     General   of Texas




 C. ROBERT HEATH,         Chairman
 Opinion Committee



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