                                           The Attorney            General of Texas
                                                                June 16, 1983
JIM MATTOX
Attorney General

                                         Honorable James S. McGrath             Opinion No. JM-38
Supreme   Court Building                 Criminal District Attorney
P.O. BOY 12546                           Jefferson county                       Re:   Whether community mental
Awtin.  TX. 78711. 2548
                                         P. 0. Box 2553                         health/mental retardation center
5121475-2501
Telex    9101674-1367
                                         Beaumont. Texas   77704                may provide union dues checkoffs
Telecopier     512/475-0266                                                     for employees

                                         Dear Mr. McGrath:
1607 Main St..Suite   1400
Dallas, TX. 752014709
214/742-6944
                                              You have requested our opinion as to whether a mental
                                         health/mental retardation community center may provide union dues
                                         checkoffs for its employees.
4624 Alberta       Ave.. Suite     160
El Paso. TX.       79905.2793
                                              The Mental Health/Mental Retardation Center for Southeast Texas
9151533.3464
                                         was created by the governing bodies of Jefferson, Chambers, and Orange
                                         Counties, pursuant to section 3.01 of article 5547-203, V.T.C.S.
 220 Dallas Ave.. Suite           202    Subsection (c) thereof provides:
Houston.   TX. 77002.6966
7131650-0666
                                                  A community center is an agency of the state and a
                                                  unit of government as defined by Section 2, Texas
606 Broadway,         Suite 312                   Tort Claims Act (Article 6252-19, Vernon's Texas
Lubbock,     TX.    79401-3479                    Civil Statutes).
6061747-5238
                                         Article 6813e; V.T.C.S., adopted by the legislature in 1981, prohibits
4309 N. Tenth. Suite B
                                         a "state governmental body" from making a deduction from the
McAlle”.    TX. 76501.1685               compensation of an officer or employee paid in whole or part from
5121662-4547                             state funds unless the deduction is authorized by law. Article 6813e
                                         provides in part:
200 Main Plaza. Suite 400
San Antonio,  TX. 78205.2797
                                                     section 1.      In this Act,   'state governmental
5121225-4191                                      body' means:

                                                      (1) a board, commission. department, office,
An Equal       Opportunity/
Affirmative      Action     Employer
                                                   or other agency that is in the executive branch of
                                                   state government and that was created by the
                                                   constitution or a statute of the state, including
                                                   an institution of higher education as defined by
                                                   Section 61.003, Texas Education Code, as amended;

                                                        (2)   the legislature or a legislative agency;
                                                   or




                                                                   p. 163
Honorable James S. McGrath - Page 2    (JM-38)




            (3) the Supreme Court, the Court of Criminal
         Appeals, a court of civil appeals, or the State
         Bar of Texas or another state judicial agency.

     We must determine whether a community mental health/mental
retardation center is a "state governmental body" within article
6813e, V.T.C.S. A "state governmental body" is a body created by the
constitution or a statute of the state. V.T.C.S. art. 6813e, §l.
Community centers may be established by various local agencies. SW
V.T.C.S. art. 5547-203, §3.01. The community centers are establis=
by local agencies pursuant to statute, but they are not actually
established by statute. Thus, the prohibitions of article 6813e,
V.T.C.S., do not apply to them.

     Next we must determine whether a community mental health/mental
retardation center has express or implied statutory authority to
institute a dues checkoff program. Prior opinions of this office have
concluded that a county could not authorize payroll deductions at an
employees' request for labor union dues or credit union savings plans
without express statutory authority. Attorney General Opinions M-334
(1969); WW-1107 (1961). See also Attorney General Opinion M-613
(1970). On two occasions this office has concluded that a state
agency or political subdivision with broad statutory powers had
implied authority to make payroll deductions from employees' wages for
union dues. See Attorney General Opinions MW-130 (1980); H-1125
(1978). Governmental bodies not subject to article 6813e, V.T.C.S.,
are left in the same position with respect to payroll deductions that
they occupied before its enactment. A community mental health/mental
retardation center did not acquire any additional power to institute
payroll deduction programs by the enactment of article 6813e.

     Section 3.08 of article 5547-203 provides:

         The board or director may employ and train
         personnel for the administration of the various
         programs and services of a community center. The
         board shall provide appropriate rights, privileges
         and benefits to the employees of a community
         center consistent with those rights, privileges
         and benefits available to employees of the
         governing bodies which establish the center and is
         authorized to provide and may provide workmen's
         compensation benefits. The number of employees
         and their salaries shall be as prescribed by the
         board   of   trustees,
         Commissioner. (Emphasis aadsded)approved by    the

As already noted, the Mental Health/Mental Retardation Center for
Southeast Texas was created by the governing bodies of three counties.




                              p. 164
Honorable James S. McGrath - Page 3 (JM-38)




     Article   2372h-4,   V.T.C.S.,   provides,   with   respect   to   some
counties:

            (a) The commissioners court of any county of
         20,000 or more population may authorize payroll
         deductions to be made from the wages and salaries
         of county employees, on each employee's written
         request, to a credit union, to pay membership dues
         in a labor union or a bona fide employees
         association, and to pay fees for parking in county
         owned facilities.

            (b) Each employee requesting a deduction under
         this Act shall submit to the county auditor a
         written request indicating the amount to be
         deducted from the employee's wages or salary and
         to transfer the withheld funds to the credit
         union,    proper   labor   union    or   employees
         association, or county funds. The request shall
         remain in effect until the county auditor receives
         written notice of revocation signed by the
         employee.

            (c) The amount deducted from an employee's
         wages or salary for the purpose stated in this Act
         shall not be more than the amount stipulated in
         the written request.

            (d) Participation in the program authorized by
         this Act is voluntary on the part of any county
         employee and the county.

            sec. 2. The provisions of this Act shall not
         alter, amend, modify, or repeal any of the
         provisions of Chapter 135, Acts of the 50th
         Legislature, 1947 (Article 5154c, Vernon's Texas
         civil Statutes).

            sec. 3. Public funds shall not be used to
         defray the administrative cost of making the
         deductions authorized under this Act, except those
         deductions relating to payment for parking. The
         credit union, labor union or employees association
         shall pay the full and complete administrative
         cost, if any, as determined and approved by the
         commissioners court of the deductions made for
         their benefit under this Act.




                               p. 165
Honorable James S. McGrath - Page 4   (JM-38)




Two of the three counties which established this center have authority
under article 2372h-4, V.T.C.S., to make payroll deductions for union
dues and have exercised this authority. One of the three counties has
a population of under 20,000 people and therefore lacks authority to
permit such deductions for its employees. -See Attorney General
Opinion M-334 (1969).

     A payroll deduction for union membership dues is, in our opinion,
a "right, privilege, or benefit" within section 3.08 of article
5547-203, V.T.C.S. The question is whether the board of the Southwest
Center must make such payroll deductions available to its employees in
order to provide them with rights, privileges, and benefits consistent
with those enjoyed by employees of the governing bodies of the three
counties which established the center. "Consistent" has been defined
as follows:

         Having agreement with itself or something else;
         accordant; harmonious; congruous; compatible;
         cornpliable;not contradictory.

Black's Law Dictionary 279 (5th ed. 1979). In this particular case,
the three founding counties are not consistent among themselves with
respect to offering payroll deduction for union dues. Two counties
make this option available to its employees, while one does not. In
such a case, where the practice of the founding counties is internally
inconsistent, we believe the board of the Southwest Mental Health/
Mental Retardation Center is permitted, but not required, to offer
payroll deductions for union dues to its employees. If the center
offers payrolls deductions, its action will be consistent with the
practice of two of the three founding counties. If it does not offer
such deductions, its action will be consistent with that of the third
county. In neither case will the board's practice with respect to the
dues deduction privilege be wholly inconsistent with the practice of
the three founding counties. If the board chooses to authorize
payroll deductions for union dues, it must do so in accordance with
the provisions of article 2372h-4, V.T.C.S., which provides that
public funds not be used to defray the administrative cost of making
the deductions.

     In this case we have had to determine whether a particular
employee right, privilege, or benefit is consistent with that offered
by a group of three counties, where two counties offer the benefit in
its entirety and one offers it not at all. A different approach to
determining consistency might be necessary to deal with another kind
of benefit, for example, insurance with different benefit levels
available to employees in each of the counties which established the
center. We express no opinion on what constitutes "consistent"
rights, privileges, or benefits under article 5547-203, section 3.01,    ?
when another kind of right, privilege, or benefit is at issue.




                             p. 166
Honorable James S. McGrath - Page 5     (JM-38)




                              SUMMARY

            Community mental health/mental retardation
         centers established pursuant to section 3.01 of
         article 5547-203, V.T.C.S., are not subject to
         article 6813e. V.T.C.S. The Mental Health/Mental
         Retardation Center for Southeast Texas created by
         the governing bodies of Jefferson, Chambers, and
         Orange Counties has permissive authority under
         section 3.08 of article 5547-203 and section 1 of
         article 2372h-4, V.T.C.S., to authorize payroll
         deductions at the employees' request for payment
         of union membership dues.

                                        ,Very/tzh



                                          JIM     MATTOX
                                          Attorney General of Texas

TOM GREEN
First Assistant Attorney General

DAVID R. RICHARDS
Executive Assistant Attorney General

Prepared by Susan L. Garrison
Assistant Attorney General

APPROVED:
OPINION COMMITTEE

Susan L. Garrison, Chairman
Jon Bible
David Brooks
Jim Moellinger
Nancy Sutton




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