                               ATTORNEY GENERAL OF TEXAS
                                           GREG        ABBOTT




                                             November 3, 2008



Dr. Michael D. McKinney, Chancellor                     Opinion No. GA-0677
The Texas A&M University System
A&M System Building, Suite 2043                         Re: Whether an individual who is both a retired
200 Technology Way                                      state employee and an active state employee with
College Station, Texas 77845-3424                       a different state agency may receive two separate
                                                        state contributions under the group benefits plans
                                                        offered by the state (RQ-0712-GA)

Dear Dr. McKinney:

         You ask whether an individual who is "both a retired state employee and an active state
employee for a different state agency" may receive two separate state contributions under certain
group benefits plans offered by the state. 1 Your first question relates to chapter 667 of the
Government Code. Specifically, you question whether "an individual who is both a retired state
employee and an active state employee for a different state agency [is] governed by the provisions
ofChapter 667, Texas Government Code." Request Letter, supra note 1, at 1. Your second question
is, ifthe individual "is qualified for participation eligibility in the Texas Employees Group Benefits
Program both under Sections 1551.101 and 1551.102, Texas Insurance Code, [whether] that
individual [is] entitled to receive the state contribution as an active employee as well asa retiree."
Id You tell us that the individual has been a retiree from the Texas A&M University System
("TAMUS") since 1999 and is currently an active employee with the Texas Department ofCriminal
Justice ("TDCJ"). Id. We will address your two questions in tum.

        The purpose of chapter 667, Government Code, is to ensure that "a person who is employed
by more than one state agency or institution of higher education may not receive benefits from the
state that exceed the benefits provided for one full-time employee." TEx. GOV'T CODE ANN.
§ 667.001(b) (Vernon 2004) (emphasis added). The chapter applies only to "a person who is
or may become employed by more than one state agency or institution of higher education." Id.
§ 667.001(a). Chapter 667 makes no reference to retired state employees. Its application appears
to be limited to persons who have, or may in the future have, multiple employments with the state.
Chapter 667 simply does not speak to the situation of an individual who is both a retired state


         lLetter from Scott Kelly, Deputy General Counsel, Texas A&M University System, to Honorable Greg Abbott,
Attorney General of Texas, at 1 (May 7, 2008) (on file with the Opinion Committee, also available at
http://www.texasattorneygeneral.gov) [hereinafter Request Letter].
Dr. Michael D. McKinney - Page 2                        (GA-0677)



employee from one state agency or institution of higher education and, in addition, a current
employee of another state agency or institution of higher education.

        Your second question concerns the same individual's eligibility under two sections ofchapter
1551 of the Insurance Code. A telephone conversation with the Deputy General Counsel for the
Texas A&M University System reveals that you wish to know whether a person may receive separate
state contributions from two of the state's group benefits programs under both chapter 1551 and
1601 ofthe Insurance Code. 2 We will first address the person's eligibility under chapter 1551 ofthe
Insurance Code.

         As an active employee of TDCJ, the individual in question is eligible to participate in the
group benefits program ["GBP"] established by the Texas Employees Group Benefits Act,
subchapter C, chapter 1551 of the Insurance Code. See TEx. INS. CODE ANN. § 1551.001 (Vernon
2008) ("This chapter may be cited as the Texas Employees Group Benefits Act."). "The
administration and implementation ofthis chapter are vested solely in the board oftrustees," defined
as "the board of trustees established under Chapter 815, Government Code, to administer the
Employees Retirement System of Texas." Id §§ 1551.051, .003(4). The board of trustees is
required to "use the amount appropriated for employer contributions ... to fund the basic coverage."
Id § 1551.301. A person is eligible to participate in the GBP as an employee "if the individual
receives compensation for service performed for this state pursuant to a payroll certified by a state
agency, other than an institution of higher education, or by an elected or appointed officer of this
state." Id § 1551.101(b). Thus, the individual in question is entitled to receive the state contribution
to his GBP as an active employee ofTDCJ. 3

        You also tell us that the person of whom you inquire is retired from TAMUS. Request
Letter, supra note 1, at 1. Chapter 1601 of the Insurance Code applies to certain state university
systems. "System" is defined to mean "The University of Texas System or the Texas A&M
University System." TEX. INS. CODE ANN. § 1601.003(7) (Vernon 2008). A person who retires from
the Texas A&M University System "is eligible to participate ... as a retired employee in the uniform
program" ifhe meets the criteria of section 1601.102 ofthe Insurance Code. Id § 1601.102(a)-(b),
(f). The "uniform program" under chapter 1601 "means an employees insurance benefits program
provided under this chapter." Id § 1601.003(10). A person "who retires in a manner described
by this section ... is eligible to participate ... as a retired employee in the uniform program." Id
§ 1601.102(a). TAMUS, as a "system" under section 1601.207, is required to "contribute monthly
to the cost of each participant's coverage provided under this chapter." Id. § 1601.207.




        2Telephone Conversation with Scott Kelly, Deputy General Counsel, Texas A&M University System (Sept. 2,
2008) [hereinafter Te].

         3Although your letter states that such individual is eligible to participate in the GBP under both sections
1551.101 and 1551.102, section 1551.102 is limited to participation by "annuitants," Le., retirees. We have no
information that would lead us to conclude that the individual is participating in the GBP administered by the Employees
Retirement System as an annuitant. Rather, he is participating in the GBP as an active employee under section 1551.101.
Dr. Michael D. McKinney - Page 3                        (GA-0677)



       We now reach the issue of whether the person of whom you inquire may receive separate
contributions under both chapters 1551 and 1601. Section 1551.314 provides:

                          A state contribution may not be made for coverages under this
                  chapter selected by an individual who receives a state contribution,
                  other than as a spouse, dependent, or beneficiary, for coverages under
                  a group benefits program provided by an institution of higher
                  education as defined by Section 61.003, Education Code.

Id. § 1551.314. This section thus precludes multiple state contributions for the GBP coverage
provided by an "institution of higher education." Chapter 1551 specifically defines that term to
exclude TAMUS. See ide § 1551.006(b) ("In this chapter, 'institution of higher education' does not
include: ... (2) an entity in The Texas A&M University System, as described by Subtitle D, Title
3, Education Code, including the Texas Veterinary Medical Diagnostic Laboratory."). But under
section 1551.314, the term is modified to include express reference to the definition in section
61.003 of the Education Code. Section 61.003 defines the term to include TAMUS, so we must
determine which definition is applicable: that of section 1551.006(b) of the Insurance Code or
section 61.003 of the Education Code.

        Section 1551.008 ofthe Insurance Code provides that "[t]he definition of a term defined by
this subchapter ... appl[ies] to this chapter unless a different meaning is plainly required by the
context in which the term appears." Id § 1551.008. In no other portion of chapter 1551 is the term
"institution of higher education" coupled with section 61.003 of the Education Code. And, as we
have noted, section 61.003 includes TAMUS within its definition of "institution of higher
education. 4 Thus, in our view, "a different meaning is plainly required by the context in which the
term appears." Id As a result, the meaning of "institution of higher education" as used in section
1551.314 of the Insurance Code includes TAMUS. Consequently, an individual who receives a
state contribution as an annuitant in the group benefits plan created by chapter 1601 ofthe Insurance
Code may not receive a state contribution as a current employee under chapter 1551 ofthe Insurance
Code.

        On the other hand, the individual in question may elect to receive that state contribution
either as a current employee from TDCJ or as an annuitant under TAMUS. Rules ofthe Employees
Retirement System provide in relevant part: "A retiree who returns to work for a department may
continue coverages for which he is eligible as a retiree, or ... elect to participate in the [GBP] as a
full-time or part-time employee." 34 TEx. ADMIN. CODE § 81.5(c)(7) (2008) (Employees Ret. Sys.



          4An "institution ofhigher education" under section 61.003, Education Code, is "any public technical institute,
public junior college, public senior college or university, medical or dental unit, public state college, or other agency
ofhigher education as defined in this section." TEX. EDUC. CODE ANN. § 61.003(8) (Vernon Supp. 2008) (emphasis
add~d). A "university system" is "the association ofone or more public senior colleges or universities, medical or dental
units, or other agencies of higher education under the policy direction ofa single governing board." Id § 61.003(10).
Thus, a "university system" constitutes an "other agency ofhigher education" as defmed by the term "institution ofhigher
education."
Dr. Michael D. McKinney - Page 4                (GA-0677)



of Tex., Eligibility). The word "department" is defined to include both a state agency and an
institution of higher education. Id. § 81.1 (1 0). The word "retiree" includes a person who, as of
August 31, 1992, was a participant in a GBP administered by an institution ofhigher education. See
ide § 81.1 (26)(B). Based upon the information provided to us, the individual under consideration
here was participating in the GBP offered by TAMUS on August 31, 1992. Request Letter, supra
note 1, at 1; TC, supra note 2. As the Texas Supreme Court has declared, the "[c]onstruction of a
statute by the administrative agency charged with its enforcement is entitled to serious consideration,
so long as the construction is reasonable and does not contradict the plain language ofthe statute."
Mid-Century Ins. Co. ofTex. v. Ademaj, 243 S.W.3d618, 623 (Tex. 2007) (citing TarrantApp. Dist.
v. Moore, 845 S.W.2d 820, 822 (Tex. 1993)).

        We conclude that an individual who receives a state contribution as an annuitant under the
group benefits plan created by chapter 1601 of the Insurance Code may not receive a state
contribution as a current employee under chapter 1551 of the Insurance Code." On the other hand,
that person may elect to receive his or her contribution either as an active employee or as an
annuitant.
Dr. Michael D. McKinney - Page 5              (GA-0677)



                                      SUMMARY

                      An individual who receives a state contribution as an
              annuitant under the group benefits plan created by chapter 1601 ofthe
              Insurance Code may not receive a state contribution as a current
              employee under chapter 1551 of the Insurance Code. On the other
              hand, that person may elect to receive his or her contribution either as
              an active employee or as an annuitant.




KENT C. SULLIVAN
First Assistant Attorney General

ANDREW WEBER
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Rick Gilpin
Assistant Attorney General, Opinion Committee
