                            E                   NEY         GENERAL
                                      OF       YITE~~~s




Hon. Robert S. Calvert                             Opinion No.        M- 408
Comptroller   of
  Public Accounts
State Capitol Building                           Re:      Insurance    for Legislators
Austin,  Texas    78711

Dear Mr.       Calvert:

     Reference         ia made to your letter    in which you request          an opinion

from      this office    as to the captioned    matter.      We quote from      your

letter,     in part,    as follows:

                “Your official opinion is requested as to
            whether the Comptroller   is authorized to pay in-
            surance premiums    for members    of the Legislature.
            An account for such payment has been received by
            this office.

                “Section 19 (sic)    (Section 24) of Article III of
            the Constitution of Texas provides in part as follows:
            ‘Members     of the Legislature   shall receive from the
            proper funds an annual salary not to exceed         $4,800.
            per year.   . . A per diem not to exceed      $12.00 per day
            for the first 120 days only of each regular session of
            the Legislature.   ’ (Emphasis    added. )

                “In addition. . . Section 6 of Article XVI of the
            Constitution of Texas forbids any appropriation   for
            private or individual purposes.

                “Particularly    in view of the Constitutional  provisions
            quoted above relating to the compensation       of members
            of the Legislature,    is an account calling for the expendi-
            ture of funds, in excess of the limitation set out in the
            Constitution,   for the purchase of the below listed types


                                           -2023-
I&n.        Robert     S.    Calvert,     page 2 (M-408)



              of insurance a valid claim against funds in the State
              Treasury which the Comptroller    is authorized to pay?

                  “1.        Premiums  for sickness and accident                   in-
              surance        for members  of the Legislature.

                  “2.  Premiuma for sickness and accident in-
              surance for members,  which includes benefits for
              dependents.

                     “3.      Premiums        for life insurance         for members.

                   “4.        Premiums  for life insurance               for members       which
              includes        coverage of dependents. ”

       It appears           that the legal     questions     with which you are concerned                 in-

volve       whether         the payment       of the insurance      premiums         would (1) consti-

tute additional             “salary”,       “per   diem” or “mileage”            in violation    of the

limitation         on such items           in Article     III, Section     24,   Constitution      of

Texas,        or      (2) would constitute            an appropriation       for private    or individ-

ual purposes               in violation     of Article    III, Section     51, and Article        XVI,

Section       6,    Constitution          of Texas.      With this understanding,           we con-

fine our considerations                   to such questions.

       There       are at least four Texas               Constitutional      prohibitions       considered

pertinent          in respect      to such questions,          to-wit:

       1.     Those        contained      in Article     III, Section     51, to the effect      that:

                  “The Legislature  shall have no power to make any
              grant or authorize the making of any grant of public
              moneys to any individual,   association  of individuals,
              municipal or other corporations    whatsoever.    . , “;



                                                          -2024-
Hon.        Robert    S.     Calvert,   page 3 (M- 40 8)



       2.     Those    contained        in Article   VIII,    Section    3. to the effect       that:

                  “Taxes shall be levied and collected                   by general      laws
              and for public purposes only.“; and,

       3.     Those    contained        in Article   XVI,     Section     6, to the effect       that:

                  “(a) No appropriation for private or individual purposes
              shall be made  unless authorized by this constitution. ”

       4.     Those    contained        in Article   III, Section       24,    Constitution     of Texas,

which reads:

                   “Sec. 24.  Members     of the Legislature shall receive
              from the Public Treasury      an annual salary of not exceeding
              Four Thousand,    Eight Hundred Dollars ($4,800)     per year
              and a per diem of not exceeding Twelve Dollars ($12) per day
              for the first one hundred and twenty (120) days only of each
              Regular Session and for thirty (30) days of each Special
              Session of the Legislature.     No Regular Session shall be
              of longer duration than one hundred and forty (140) days.

                   “In addition to the per diem the Members     of each House
              shall be entitled to mileage in going to and returning from
              the seat of government,     which mileage shall not exceed Two
              Dollars and Fifty Cents ($2. 50) for every twenty-five    (25)
              miles,   the distance to be computed by the nearest and most
              direct route of travel,   from a table of distances prepared
              by the Comptroller    to each county seat now or hereafter
              to be established;   no Member to be entitled.to   mileage for any
              extra Session that may be called within one (1) day after the
              adjournment of the Regular or called Session.”

       Article       3.50     of the Texas     Insurance      Code provides         the statutory

authorization          for group life insurance              coverage     and Article     3. 51 of

the Texas        Insurance         Code provides      the statutory           authorization     for

group health,              accident,    hospitalization,       etc.,    insurance.

                                                           -2025-
Hon.    Robert     S.   Calvert,       page 4,      (M-408)



       This opinion is further           written     on the assumption          that your inquiry

is directed      to the payment          by the State of premiums              on such group life,

health,    accident,       hospital,      etc.,    insurance      policies     covering        members

of the Legislature          and their      dependent8         and as to how the same            may be

authorized       or prohibited         in light of the constitutional           and statutory

provisions       hereinbefore       quoted or referred            to; and it is so limited.

       In holding that the city’s          firemen         and policemen’s       pension       plan was

not vioIative      of Constitutional          Article      I, Section     16; Article     III, Sections

44,    51-53;    Article    VIII,   Section       3; and Article       XVI,    Section    6.    prohibiting

application       of public funds to private               purpose8     or gratuitous      grants    of

such funds to individuals,              the Supreme          Court of Texas,         in 1938,     in the

case    of Byrd V. City of Dallas,                et al,    118 Tex,    28.   6 S. W. 2d 738,       held

that the pension        concerned        was not a gratuity            but was for a public pur-

pose and a benefit          conferred       in consideration           of services      rendered.

The Court stated:

                “It is academic to say the Legislature     has power to pass
           any law which its wisdom suggeststhat is not forbidden by some
           provision8     of the Constitution (federal or state).    If the pension
           provided for in this Act is a gratuity or a donation to the bene-
           ficiary,   it is clearly forbidden by the fundamental law.        On the
           other hand, if it is a part of the compensation       of such employee
           for service8     rendered to the city, or if it be for a public pur-
           pose, then clearly it is a valid exercise     of the legislative   power.”

       The Byrd case        was quoted by this office             in Attorney        General      Opinion

WW-731,         upholding the constitutionality               of Article      237211-z Vernon’s        civil
.   .   ..




             Hon.      Robert   S. Calvert,     page 5 (M-       408)



             Statutes,     which authorized       the counties         to pay all or a part of the

             hospitalization      insurance      of county official8       and employees.

                  In Attorney      General     Opinion No.       M-138,     in authorizing    the comp-

             troller     to pay certain     group insurance           premiums   for his employees,

             this office    stated as follows:

                              “It has been heretofore  held by this office that a state
                         agency may contribute state funds in payment of the pre-
                         miums of group insurance covering its employees         under
                         the provisions   of gubsection (a) of Section 1 of Article
                         3.51, of the Insurance Code as amended by Senate Bill
                         294, Acts of the 60th Legislature     (Attorney General;8
                         Opinion No. M-125).      Such is a Public governmental     pur-
                         pose benefitting the State.    Opinion by the Justices,    30
                         So. 2d 14 (Ala. Sup. 1947); Bowers v. City of Albuquerque,
                         27 N. M. 291, 200 P. 421 (1921); Thompson v. City of
                         Memphis,     147 Term. 658, 251 S. W. 46 (1923); People V.
                         Standard Accident Ins. Co.,     42 Cal. App. 2d 490, 108 PZd
                         923 (1941).

                             “We are in agreement with the reasoning of the Supreme
                         Court of Mississippi   in Mayor and Aldermen of City of
                         Vicksburg   v. Crinchlow,   196 Miss.  259, 16 So. 2d 749 (1944),
                         wherein the statute concerning benefits to eovernmental
                         employees    was upheld as not being gratiuties and as not
                         extra compensation,    but being prospective   it serves a
                         beneficient and useful governmental    function in its propen-
                         sity for stimulating  and regarding faithfu1 public services.  ”

                    The question       i.1, then presented     as to whether     payment     of such

             premiums       would constitute       a public purpose.          If any grounds    exist

             to support      8 finding that an act was for a’public              Purpose”,



                                                             -2027-
Hon.    Robert    S.   Calvert,      page     6 (bf- 408)


then such act must be upheld.                  On the other hand,        if no logic    or

reason     can show such act to benefit               the public,   then such finding

must be held not to be supported                 by any valid evidence.

       hr view of the foregoing,         we are of the opinion that there               exists

no constitutional        inhibition    as to the use of state funds and their

application      to group sickness          and accident      policy   premium        payments

for legislators        themselves.        Such an expenditure          se rves     a beneficient

and useful    public or governmental              function    in helping    to assure        maxi-

mum state service          and is directly        related     to the health and well being

of state servants        in the performance            of their duties.      This would

not constitute     an expenditure           of public funds for private          or individual

purposes.        The primary         purpose     or benefit    accrues     to the state,       and

the benefit    to the individual        is deemed        as incidental      and as not render-

ing the expenditure         invalid    or unconstitutional.

       We do not interpret          such a benefit      as additional     “salary”.      “per

diem”     or I’mileage”,      as those        terms    are used in Article       III, Section

24 of the Constitution            of Texas.      This constitutional       provision     deal8

only with those        specific     emoluments        and operates       as a limitation

merely     as to them.       “galary”         has been distinguished        from      “emOlument”,



                                              -202s
Hon.    Robert        S.    Calvert,       page ,7 (M-408)



the latter      term        being deemed        more      comprehensive.                 67 CJS 326,          Officers,

Sec.    89.     It is likewise           shown that “compensation”                     includes   salary       but

may not in all cases              mean the same               thing,    depending         upon the context

in which it is used.              It is our opinion that the meaning                       of “salary”        as

used in the constitution                 must be given its plain and ordinary                       literal

meaning,        that is,      salary       compensation,           and does not necessarily

include       every    benefit      or      perquisite         arising     from         the possession

of the office.             The Constitution          does not provide            that no other

emolument,            perquisite,         or benefit     may be enjoyed                by members       of

the legislature.             Cf:,.Terrell       v.    King, 118 Tex.            237,    241, 14 S. W. 2d

786,    791 (1929); State v.              Aranson      , 314 P 2d 849,            853 (Mont.        Sup. 1957t

Spearman        v.     Williams,         415 P2d 597 (Okla.              Sup.    1966).

       Although       we have answered               your first        question        in the affirmative,           we

must answer            question     No.     2 in the negative.             Payment         of premium8             for

sickness       and accident         insurance         for dependents             of legislators      would not

constitute      an expenditure             for a public purpose             but would be an appropria-

tion for private            or individual       purposes , and in violation                  of Article       III,

Section       51, and Article            XVI,   Section       6,   Constitution         of Texas.

       We must likewise             answer       questions         3 and 4 in the negative.               Sub-

section       (a) of Section        1, Article        3. 51 of the Insurance              Code provides

for such payments              for members            and their dependents                but only as to

hospital,       surgical       and/or       medical      expense        insurance.          Subsection         (3)


                                                     -2029-



                                                                                                                     ,,,,
Hon.     Robert      S. Calvert,      page 8 (M-408)




Section      I of Article     3.50    contains    no language      which would authorize

coverage       for dependents         of either    state employees      or other state

personnel       or officials     insofar      as life insurance     is concerned.

The object        of life insurance        is to “secure     to the family      of a person

who is dependent            on a salary       or the income    which ceases         with

h&s life,,    a support      on the death of the insured.            “44 CJS 480,

Insurance,        Sec.   18. ”       Thus,     the pecuniary    benefits     to the

benificiary       flowing    .therefrom        are mainly    for a private      or indivi-

dual purpose,         unrelated      to furthering     the performance         of the state

legislator      on the job.        Payments       for life insurance       would,     in

our opinion,         be unconstitutional,         being in violation       of Article

III, Section      51, and Article         XVI,    Section   6, Constitution      of

Texas,       since   not authorized          by the Constitution    as required

thereby.’



                                       SUMMARY

                  There is no constitutional prohibition against the
             use of state funds to make premium payments on group
             health and accident insurance policies for members
             of the legislature.


                                             -2030-
Hon.   Robert   S. Calvert,   page 9 (M-408)



              There is a constitutional  prohibition against the use of
         state funds for payments of premiums       on group life policies
         for legislators   and the dependents of state legislators  and
         for group health and accident policies covering the depend-
         ents of legislators.




                                                      eneral   of Texas

Prepared    by Roger Tyler
Assistant   Attorney General



APPROVED:
OPINION COMMITTEE

Kerns Taylor,  Chairman
George Kelton, Co-Chairman
Alfred Walker
Neil Williams
James S. Swearingen
John H. Banks

W. V. Geppert
Staff Legal Assistant

Hawthorne Phillips
Executive Assistant




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