                          QBffice of the !ZWwnep @merat
                                    &ate of tlCexae
DAN MORALES
 ATTORSEY
     GENERAL                           December 28.1992

    Mr. Charles D. Travis                        Opinion No. DM-193
    Executive Diiector
    Employees Retirement System of Texas         Re: Whether      V.T.C.S.    article  68138
    P. 0. Box 13207                              requires the Employees Retirement System
    Austin, Texas 7871 l-3207                    of Texas to designate broad types of
                                                 coverage or specific vendors of supplemental
                                                 optional benefits programs and related
                                                 questions (RQ-403)

    Dear Mr. Travis:

             You have asked several questions regarding the role of the Employees Retirement
    System of Texas (ERS) in implementing V.T.C.S. article 68138 which authorizes
    deductions for “supplemental optional benefits programs” (“supplemental benefits
    programs” or “programs”) t?om state employees’ wages. Article 68138 was enacted into
    law in 1991. See Acts 1991,72d Leg., 2d C.S., ch. 12, 0 24.01, at 365. Section 2 ofthat
    article provides as follows:

                   In addition to deductions for coverage under the Texas
              Employees Uniform Croup Insurance Benefits Act . or other law,
              an employee of a state agency may authorize in writing a deduction
              each pay period from the employee’s salary or wage payment for
              coverage of the employee under a supplemental optional benefits
              program, including a program of permanent life insurance,
              catastrophic illness insurance, disability insurance, or prepaid legal
              services, that may be made if the program has been approved by the
              [ERS] under Section 3 of this article. The written authorization must
              direct the comptroller or, if applicable, the appropriate tinancisl
              officer of an institution of higher education to transfer the withheld
              funds to the program designated by the employee. The comptroller
              or financial officer shall comply with the direction.

    Section 3 provides:
                   The [ERS] shag designate supplemental benefit programs that
              are eligible to receive deductions under Section 2 of this article and
              that promote the interests of the state and state agency employees.




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Mr. Charles D. Travis - Page 2        (DM-193)




Section 6 provides:

                The state may withhold from the employee’s salary or wage
          payment an administrative fee for making the deduction under this
          article. The fee may not exceed the actual administrative cost of
          making the deduction or the highest fee charged by the state for
          making a similar deduction, whichever amount is less.

       With regard to these provisions, you ask the following questions:

              1) Whether the ERS is required to designate one or more
          supplemental benefit programs;

              2) Whether the term “programs” refers to broad types of
          coverage or individual vendors;

               3) Whether the ERS is authorized or required to take any action
          beyond designating the program, such as soliciting bids or approving
          individual vendors;

               4) Whether the ERS is required to monitor            or regulate
          designated programs; and

               5) Whether the ERS may assess fees to pay for administrative
          costs, and against whom such fees may be assessed.

You suggest that article 6813g merely obliges the ERS to designate eligible supplemental
be&its programs, if any, and that the ERS is only authorized to designate the broad types
of coverage available, rather than individual vendors to provide coverage. You also
suggest that article 68138 does not require or authorize the ERS to approve particular
vendors or administer any such programs because “[t]he ERS is granted no rule-making
authority, nor is there any provision for a bidding process.”

        We have reviewed article 6813g. The language of the statute provides little
guidance, and we are not aware of any legislative history which would provide answers to
your questions. Thus, we address your questions relying solely on the bare language of
the statute. First, you ask whether the ERS is required to designate any supplemental
benefits program. Section 3 which contains the mandatory term “shall” clearly requires
the ERS to designate supplemental benefits programs, provided it concludes that they
“promote the interests of the state and state agency employees.” See Lewis v. Jacksonville
Bh” & Loan A&I, 540 S.W.2d 307, 310 (Tex. 1976) (the term “shall” is generally
mandatory). of course, in the unlikely event that the ERS concludes that no supplemental
benefits program promotes those interests, it is not required to designate any program.

       We address your second and third questions together. You ask if the term
“supplemental benefits programs” refers to broad types of coverage or to particular



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Mr. Charles D. Travis - Page 3         (DM-193)




vendors, and ifthe ERS is required to take any action beyond designating a program, such
sa soliciting bids or approving individual vendors. As noted above, section 3 requires the
ERS to designate supplemental benefits programs “that promote the interests of the state
and state agency employees.” While a broad category of coverage might meet this
criteria, particular vendors providing such coverage might not. Thus, section 3 suggests
that the ERS is required to do more than simply designate broad types of coverage.

        Furthermore, section 2 authorixes wage deductions for coverage under “a
supplemental optional benefits program. . that may be made if the program has been
cqproved by the [ERS] . . . .” (Emphasis added.) This provision suggests the legislature’s
intent to authorize deductions for particular programs provided by particular vendors
approved by the ERS. It would make no sense to authorize deductions for broad types of
coverage, but not authorize deductions for particular programs provided by particular
vendors. In addition, we note that section 2 provides for the transfer of “withheld timds to
the program designated by the employee.” (Emphasis added.) In this context, it is clear
that the term “program” refers to a specific program provided by a specific vendor, rather
than to broad types of coverage. We conclude that “supplemental benefits programs”
refers to particular programs provided by particular vendors as opposed to broad types of
coverage, and that the ERS is required to approve particular programs provided by
particular vendors. We note, however, that the statute does not prescribe any particular
method the ERS must use to approve or designate a program, thus leaving the method of
approval and designation to the ERS’s discretion.

        In answer to your fourth question, although article 68138 does not grant the ERS
rule-making authority, we believe it impliedly authorizes the ERS to monitor or regulate
supplemental benefits programs. This authorization is implicit in the janguage in section 3
authorizing the ERS to ensure that programs “promote the interests of the state and state
agency employees.” See Sti&r         v. Ci@ ojSan Antonio, 344 S.W.2d 158, 160 (Tex.
1961) (administrative agencies have powers necessarily implied from authority or duties
expressly imposed). Thus, the ERS is authorized to regulate or monitor supplemental
benefits programs if it determines that this is necessary to promote the interests of the
state and state agency employees. The vague and unspecific language of article 6813g
cannot be fairly read, however, to require the ERS to undertake such activities.

        With respect to your query about fees, section 6 authorizes the state to withhold
from an employee’s wages an administrative fee for making the deduction. The legislature
has been quite explicit in authorixing this particular fee and has not authorized the
assessment of any other fee. Therefore, we conclude that the ERS is not authorized to
assess a fee to pay for its administrative costs in designating, approving or regulating
supplemental benefits programs against either vendors of such programs or participating
employees. See Ex parte Halsted, 182 S.W.Zd 479, 484 (Tex. Crim. App. 1944)
(recognizing rule of statutory construction that “the express mention of one thing is
tantamount to an exclusion of all others”).




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                                  SUMMARY

               Article 6813g, V.T.C.S., requires the Employees Retiiement
          System of Texas (ERS) to designate “suppIementaJ benefits
          programs” for state employee wage deductions, provided it
          concludes that such programs “promote the interests of the state and
          state agency employees.”          The term “supplemental benefits
          programs” refers to particuhu vendors as opposed to broad types of
          coverage. Article 68138 requires the BRS to approve particular
          supplemental benefits programs provided by particular vendors. This
          provision impliedly authorizes the ERS to regulate or monitor
          supplemental beneiits programs if it determines that this is necessary
          to promote the interests of the state and state agency employees.
          This provision does not authorize. the ERS to assess a fee to pay for
          its administrative costs against either vendors of supplemental
          benefits programs or participating employees.




                                                    DAN      MORALES
                                                    Attorney General of Texas
WJLL PRYOR
Fii Assistant Attorney General
                                                                            RECEIVED
MARYKELLER
Deputy Assistant Attorney General                                          JAN 12   1993

RBNBA HICKS
Special Assistant Attorney General

MADELEINE B. JOHNSON
Chair, Opinion Committee

Prepared by Mary R. Grouter
Assistant Attorney General




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