   WVILL   WILSOM
AlTORNEYGENERAL              September 17, 1962

      Mr. S. Perry Brown                 Opinion No, WW-1440
      Chairman & Executive Director
      Texas Employment Commission        Re:   Whether persons who re-
      Austin 1, Texas                          ceive retroactive payments
                                               of Old Age and Survivor
                                               Insurance are disqualified
                                               under Section 5(e)(3) of
                                               the Texas Unemployment
      Dear Mr, Brown:                          Compensation Act.
                You have requested the opinion of this office con-
      cerninn whether individuals who receive retroactive oavments
      of Old-Age and Survivors Insurance (hereinafter call~d"OASI")
      under Title II of the Social Security Act for the same periods
      for which they have previously received unemployment insurance
      are subject to a retroactive disqualification under Section
      5(e)(3) of the Texas Unemployment Compensation Act (Article
      5221b-3(e)(3), V,C,S,), which provides as follows:
             "Section 5.    An individual shall be disqualified
                            for benefits2
                (e)   For any benefit period with respect to
                      which he is receiving --
                                            OP has received
                      remuneratzn in the form 'of:
                      (3) Old Age Benefits under Title.11 of
                          the Social Security Act as amended,
                          or similar payments under any Act of
                          Congress, or a State Legislature; D 0 0111
                           (Emphasis added,)
                The above provision has been in the Texas Unemployment
      Compensation Act since it was first enacted, Acts,1936, 44th
      Lega, 3rd C,S, po 19980 It is therefore no aid to this inquiry
      to look to the legislative history of the enactment.
                 Since the disqualification is operative if an indi-
      vidual "'isreceiving OP has received" OASI for the period for
      which he clafms  unemployment benefits, we have examined the
      Social Security Act and regulations promulgated thereunder to
      determine the nature of such benefits and the manner in which
      they are paid.
Mr. S. Perry Brown, Page 2   (m-1440)

          Title II of the Social Security Act--Federal Old-
Age and Survivors Insurance Bienefits,as amended in 1961,
at Section 202(a) (42 U.S.C. 402(a)) provides that every
individual who (1) is a fully insured individual as defined
in Section 214(a)), (2) has attained age 62, and I3) has
filed application for old-age insurance benefits or was entitled
to disability insurance benefits for the month preceding the
month in which he attained the age of 65, shall be entitled to
an old-age insurance benefit for each month, beginning with
the first month after August 1950 in which such individual
becomes so entitled to such insurance benefits and ending with
the month preceding the month in which he dies. Section 202(j)
,(l)provides, in effect, that an indivi;dualmeeting the fore-
going ,requirementsmay, upon application-therefor, receive a
lump sum payment retroactively, of any benefits to which he
was entitled for the preceding twelve months, provided such
benefits were not pr'eviously,
                             paid to him.
          Retroactive payments of OASI are frequently made
under the circumstances mentioned in your opinion request,
where the individual does not file his application forOAS1
until several months after he has reached retirement age, but
OASI may be paid retroactively under othercircumstances as
well. It may occur upon a redetermination of the individual's
application for OASI, which he may obtain upona showing of
"good clause"at any time within four years after the date of
the initial determination of the claim. See Social Security
Administration Regulation No. 4, Sections 404.957 -~404,963.
          Retroactive payment may .alsobe made to an OASI
beneficiary whose checks were temporarily suspended due to
a report of excessive earnings. See,,,SocialSecurity Act,
Section 203 (42 U.S.C. 403); Regulation 404.425 of the Social
Security Administration and Social Security~~Handbook~OASI-23,
1961. Briefly stated, OASI benefits may be totally denied or
reduced for anymonth ~1‘months pursuant to the "retirement"
test of the statute, which is applicable only to working
beneficiaries under age 72 who earn more than $1,200 during the
year. Under the regulations referred to above, the Social
Security Administration may suspend benefit payments when
earnings are reported to it which would be sufficient to cause
a loss of OASI benefits for some months of the year. Such
benefits may later be claimed, retroactively, when it appears
that the individual's earnings were not, in fact, sufficient to
cause a loss of benefits, or that he was not paid the full
amount of OASI to which he was entitled.
          Since a number of other states have statutory pro-
visions similar to Section 5(e) of the Texas Unemployment
Mr. S, Perry Brown, Page 3   Iww-1440)

Compensation Act, an examination of the experience and practice
of those states in this regard may be useful. Five other states
(Colorado, Louisiana, Missouri, Nebraska, and Oklahoma) have
unemployment compensation statutes which, like the Texas statute,
disqualify an individual who "is receiving or has received" OASI
for the same period for which he claims unemployment benefits.
          There are no reported cases, either in this state,or
in other states, in which the statutes on this specific subject
have been construed, However, in two states the state Attorney
General has published formal opinions on the subject. The
Attorney General of the State of Oklahoma on September 15, 1954,
;;c;kr$r3g Section,215(e), Oklahoma Statutes, 1951, Vol.1,
        , Chap, 6 (which in its basic language is identical
to Section 5(e) of the Texas statute) ruled that the Oklahoma
Employment Security Commission was without authority to recon-
sider its original determination awarding benefits when a
claimant subsequently received OASI, paid retroactively, for
some of the same weeks for which he had already collected unem-
ployment compensation.
          I:nMinnesota, in an opinion dated March 19, 1962, the
state Attorney General ruled that under the particular statute
in effect in that state (quoted below) unemployment compensation
payments should be held in suspense until OASI claims previously
filed for the same period are determined; however,,that opinion
did not attempt to deal with the situation in which unemployment
benefits are both claimed and received before any claim is filed
for OASI. Port.ionsof an instruction manual of the Minnesota
Department of Employment Security quoted in the opinion indicate
that the agency deducts OASI from unemployment benefits,~or
withholds benefits completely, only when a claim for'OAS1 has
been filed, It should be noted that the Minnesota statute
specifically provides for ,adisqualification if the claimant has
filed a claim for OASI at the time he applies far unemployment
benefits, but the agency has not attempted to,go beyond the express
words of the statute to extend the disqualification to all retro-
active payments of OASI.
          In three states, the unemployment compensation statutes
were apparently drafted with the specific intent of disquali-
fying'recipients of CASI back-pay. ~Thus, Section 96,5 of the
Iowa Code provides that an individual shall be disqualified
from receipt of unemployment compensation if he is receiving,
has received, l'oris entitled to receive" OASI for the same
period; SectionTO%-    of the !&sconsin Unemployment Reserves
and Compensation Act, Chap, 108, Title XIII,,Wisconsin Statutes,
1953, provides for a denial of unemployment benefits if the
individual ttO o 0 & receiving OP has claimed --
                                              and will rece&e s . 0'11
Mr. S, Perry Brown, Pa~ge4   (WW-1440)

O&SI; and Subsection 364) of Section 268.08, Minnesota    Statutes,
1957, renders one ineligible for unemployment benefits    for any
week with respect to which he 'I0 n 0 is receiving, has   received,
or has filed a claim for o 0 0" OASI. (Emphasis added     in each
F&T

          The State of West Virginia's unemployment compensation
statute at one time disqualified OASI recipients by means of a
provision identical to Section 5(e) of the Texas Unemployment
Compensation Act, See Article VI, Sec. 4, Chap. 21A, Code of
West Virginia, However, that portion of the statute disqualifying
OASI beneficiaries was repealed effective July~l, 1961. We are
advised by the Director of the West Virginia Department of Em-
ployment Security that the very question which is the subject
of this opinion was a matter of considerable controversy and
differing views in that state before the repeal, and that when
that agency attempted to make retroactive disqualifications in
cases where retroactive awards of OASI covered the same periods
for which unemployment benefits had already been paid, the
result was an administrative "headache," the establishment of
overpayments which proved uncollectible in almost every instance,
and undue hardship to many claimants who had unwittingly drawn
both benefits,
          All of the states having statutes on this subject
were recently queried by this office as to the position taken
by their administrative agencies on the effect of retroactive
OASI payments on previous payments of unemployment compensation
for the same periods, Replies were received from every state
to which an inquiry was directed, stating the policy or legal
opinion followed, It is significant that all of the states
concerned are unanimous in their disregard of retroactive pay-
ments of OASI occurring subsequent to payment of unemployment
compensation for the same period, except for the State of
Colorado which makes a retroactive disqualification only if the
individual has an active unemployment compensation claim series
from which the resulting overpayment can be deducted. It appears
that Colorado's procedure represents only the administrative
solution of the problem by its Department of Employment, since
they,dtidnot forward a legal opinion in support of their stand
in response to our request,
          The Commissioner dissenting to the decision entered in
Commission Appeal No, 7355-CA-60 of the Texas Employment Commission,
forwarded with your opinion request, urges that a retroactive
redetermination of the individual's entitlement to unemployment
             be made whenever it appears that he has drawn OASI
,,compensation
for the same benefit periods for which he was previously paid
unemployment compensation, We have made a careful search for
Mr, S, Perry   Brown, Page 5 (WW-1440)

statutory authority for such a__
                               redetermination, but,have.found
nones Section 6 of the 'I'exasUnemployment Compensation Act
(Article 522113-4,v-C,S,) governs the filing and determination
of claims for unemployment compensation,and would be the logical
source of ,statutoryauthority for the redetermination the Commis-
sioner suggests, but it is silent in that regard.
          The disqualification of OASI beneficiaries contained
in Section 5(e)(3) of the Texas Unemployment Compensation Act
is in the nature of a condition precedent, One does not qualify
to receive unemployment benefits for a given week, i.e., he
has failed to meet a condition of eligibility, if he "is receiving
or has received" OASI for that week, When a claim is zled for
--
unemployment benefits for a given week, and the Commission deter-
mines whether at that time the claimant is receiving or haa:re--
ceived OASI for .thatweek, it can inqu;re no.further into that
aspect of the claim, There is no subsequent condition to be
met with respect to OASIS, It is of no consequence whether the
claimant has a potential entitlement, or a legal right, to OASI
for the same week if he is not "receiving" OASI, and has not
received it for that week,
          There is no problem in determining whether one "has
received"'OASl for the same period for which he claims unemploy-
ment benefits, If OASI has been paid for that period, the records
are available to prove the fact, The only real problem facing
us is that of defining the fact situations under which one "is
receiving" such paymentz-
          The word "receiving" is the present participle of the
verb "receive," which Webs
as meaning "to take posses
Dictionarv defines "receive" as "to take possession or control;
accept custody ofO" Thus, in order to be "receiving" something
one must be accepting delivery of it, taking it into his posses-
sion, or ,subjectingit to his control.
          The "receiving" of a thing is the end result of its
delivery, transmission, or communication. Sprang v0 Prudential
Life Insurance Company, 198 N.E, 585, 50 Ohio App, 451. Without
such a transfer and receipt, there is no "receiving." Hallenbeck
v. Gets, 28 A, 519, 520, 63 Corm, 382,
          The word "receiving," has a plain and accepted meaning
in common parlance, For example, it is commonly said that one
is "receiving" medical treatment, meaning, not that a treatment
is underway at that very moment, but rather that the process of
treatment has already begun and periodic treatments are being
received, It is common today for people to be "receiving" support
payments from a variety of sources, public and private; we do
Mr, S. Perry Brown, Page 6:(h~-u+@)

not commonly think of them as "receiving" such payments until
they have begun to receive them.
          Both by definition and usage, "receiving" clearly
refers to the current receipt of the thing in question,,the
continuing process of delivery which follows the initial pay-
ment or transfer. We know of no case in which a court has
held that one was "receivingl'something before the process
of delivery, transfer or payment had begun and at least a portion
of the thing being "received" was delivered into the'control or
actual possession of the recipient.
          Once payment of OASI benefits has begun, the bene-
ficiary "is receiving" them continuously thereafter, and thus
is subject to disqualification under Section 5(e) of the Texas
Unemployment Compensation Act so long as the payments continue.
It is not necessary for one to have actually received his OASI
check for a given month during which he files for unemployment
benefits in order to be subject to,.thedisqualification. It
may be assumed the legislature was aware that unemployment bene-
fits are paid weekly while OASI is paid on a monthly basis.
The disqualification would have had no practical effect if it had
been made effective for only those weeks for which OASI had al-
ready been received. The words "is receiving" extended the dis-
qualification to cover the continuing process of payment and
receipt.
          If the individual's OASI payments cease, for any
reason, he is no longer "receiving" them and is not subject to
disqualification for unemployment benefits. As the statute is
written, it is immaterial whether he has a legal right to such
OASI payments or whether he subsequently receives them by means
of a retroactive payment or award.
          We have seriously considered the view urged in the dis-
sent to Commission decision No, 7355-CA-60 that the legislature
intended to prohibit, absolutely and in every case,~the receipt
of OASI and unemployment benefits for the same periods. However,
we are constrained toffollow the plain and ordinary meaning of
the words used in the statute. The statute goes no further
than to say,~in effect, that no individual shall receive --
                                                         at the
same time unemployment benefits and OASI, It simply does not
contemplate the situation where OASI is paid retroactively,
after receipt of unemployment benefits. Since the statute does
not provide for a disqualification in the event of retroactive
receipt of OASI, none can be supplied in t&e g$,iseof an "inter-
pretation" of the statute, We cannot invade the province of
the legislature.
          In seeking to ascertain the intent of the legislature
in this regard, the nature and purpose of unemployment compensation
Mr, S, Perry Brown, Page 7 W’J-1440)

should be noted, Unemployment benefits are temporary in nature,
being limited'to twenty-six weeks under present law. The maximum
weekly benefit payment is $370 Its obvious purpose and design
is to provide for the immediate needs of those who have formerly
worked and find themselves, temporarily, without a job and unable
to find suitabler>employment. One who is without work and with-
out pay usually has a great immediateineed for money. The possi-
bility that he may receive, some time in the future, a check from
the federal government for OASI benefits allocable to the same
weeks for which he claims unemployment benefits does not help him
to pay the rent or buy groceries, The-legislature could reason-
ably have intended to provide for such immediate needswithout __
regard to whether, at some future.time, the individual received
OASI~allocable to the same period,
          Experience, both in Texas and West Virginia, has shown
that a multitude of injustices and administrative "headaches"
occur when the state agency attempts, through a retroactive dis-
qualification to recover unemployment compensation previously
paid, Certainly, the legislature did not intend to create ;pro-
blems of this nature,
          One further legal point remains to be disposed of. The
dissent in Commission decision No, 7355-CA-60 cites, and relies
upon, several cases in which individuals were required to repay
unemployment compensation previously received when they sub-
sequently were paid wages allocable to the period for which they
were unemployed, e,g,, State va Rucker, 126 A, 2d 846 (MO. App.
1956); Texas Employment Commission v. International Union of
Electrical, Radio and Machine Workers, 352 S0W,2d 252, -    Tex.
     (1961), However, OASI benefits are not "wages," and their
retroactive payment creates no problem of ascertaining whether
the beneficiaries are unemployed, The cases cited are concerned
solely with definition of Lhe term "unemployed" and have no
relevance to our present inquiry,
          Although we are concerned with the legal, rather than
moral, aspects of receipt of both OASI and unemployment benefits
for the same periods, since the dissent in Commission decision
No, 7355-CA-60 urges that it is morally wrong we will point out
that thirty-nine stat-es,plus Puerto Rico, allow receipt of both
benefits with no disqualification whatsoever resulting, while
no state or territory?followe the policy suggested by that
dissent, See pamphlet, Comparison of State Unemolovment Compen-
sation Laws, BES No, U-141 published by the U. S, Department of
Labor, Bureau of Employment,Securitye The explanation of this
may lie in the fact that unemployment compensation and OASI
have little relation to one another and serve different pur-
poses, The differences in administ:rationand financing of the
two programs are too wel:hknown to require reiteration here.
Mr. S, Perry Brown, Page 8 (WW-1440)

Congress did not see fit to make receipt of OASI dependent on
non-receipt of unemployment benefits. Under the circumstances
we cannot agree with the conclusion that receipt of both bene-
fits for the same period is, in every case, morally wrong or,so
unconscionable that the legislature could not reasonably have
intended it,
          During the last regular session of the Texas Legislature,
bills were introduced in both houses (Senate Bill No. 13 and HB
No, 150) which would have extended the OASI disqualification to
cover any claimant of unemployment benefits who "is eligible" to
receive OASI, The fact that neither bill passed the legislature
is at lease some indication that it is not the will of the
legislature to disqualify claimants of unemployment benefits who
are eligible for,,though not "receiving," OASI.

                           SUMMARY
                 One who receives a retroactive payment of
            Old Age and Survivors Insurance under Title~II
            of the Social Security Act allocable to a
            period for which he has previously received
            unemployment compensation is not subject to
            disqualification under Section 5(e)(3) of the
            Texas Unemployment Compensation Act and is not
            required to refund the unemployment benefits
            previously received,
                                     Sincerely~yours,
                                     WILL WILSON
                                     Attorney General of Texas



                                     BY
                                          Assistant
EF/fb
APPROVED:
OPINION COMMITTEE
W. V, Geppert, Chairman
John Reeves
Elmer McVey
REVIEWED FOR THE ATTORNEY GENERAL
BY: Leonard Passmore
