                  =‘D?EBcATIY)RNEY             GENERAL
                                OFTEXAS




HonorableT. M. Trimble
First Assistant
State Superintendentof
    public Instruction
Austin, Texas

Dear Sir:                            Opinion No. O-2838
                                     Re: Group Insurancefor teachers
                                     in independentschooldistricts
                                     and paymentof premiums out of
                                     school funds.

            In your letter of Ootober 17, 1940, you request our opinion in
response to the followingquestions:
              : "May the Board of Trustees of the Fort Worth
            IndependentSchool Districtuse localmaintenance
            funds to pay the employer'spart on a group life
            insurancepremiun for the Fort Torth teachers?

                 "Couldthe Board of Trusteesof an independent
            school districtmake provisionfor the payment of the
            employer'spart of the premium of group life insurance
            of its teachers,if provisionis made in the teachers*
            contractswherebythis premiws payment is a prt of
            the teachers'annual salaries?"

           Y& are unableto find any statutewhich would authorizethe
trustws of the Fort Worth IndependentSchool District to contractfor or
expend local maintenancefunds to pay the employer'spart of a group life
insurancepremium for the district'steachers. In the sbsence of such a
statute,such funds may not be so expended.

             This questionis in all material respectsthe ssme as that
 consideredby t'nisdepartmentin our Opinion No. O-2469, copy of rhich is
 attachedhereto, and it was them held that public school funds could not
 lx used to pay for group insurance.

            Your second questionis answeredin the negativefor soveral
 reasons.

            (1) Section 1 of Article 47G4a provides:
Bon.   T. Y. Trhble, Page 2 (O-2838)



                   "GroupLife Incurancoic horobydeciarodto bc
              that fona of life inouranceocvoringnot loss thnn
              twenty-fiveemployeeswritton under a.policy issued
              to the employer,the premiws for which ictc bo paid
              by the employeror by the employerand employeejoint-
              ly and insuringall of his employees,or all of any
              class or classesthereof determinedby conditions
              pertainingto the employment,for smcuntsof insurance
              based upon scme plan whioh will precludeindividual
              selection,andfor the benefitof personsother than
              the employer;. . ."

It will be observedthat group insuranaecannotunder this statute bs had
unless the schooldistrictpays its art of the premium.

             If your second questionis predicatedupon the idea of paying
the teachersa salary,and then requiringthem to pay the school districtsI
portionof the premiurm for the insurance,such procedurenould not bring
the insuranceunder the above definitionof group insurancefor the reason
that the teacherswould, in faot, bs paying all of the premium;while the
above statuterequiresthe school districtto pay a part of the same.

             (2) If you intend by your second questionto provide in the
teachers'contractsto pay them so much money for salaries,provided a
certain amountof same should be used to pay the school district'spart of
ths premium on group insurance,the plan would amount to nothing more than
an evasionof cur ruling to the first question suhaittedrfor the reason
that you would still be doing indirectlywhat you cannotdo directly.
This principleis sustainedby the'courtof Civil Appealsat San Antonio
in the case of Godson vs. Jones, 190 S.VL 2.53:

                    "Appellantwas the principalof school Xo. 1,
              districtNo. 2, sndwas being paid the sum of $75
              cut of the free schoolmoney of the state. About
              the same time of his employmentas principal,he was
              also employedbythe trusteesas janitorwith a sal-
              ary of $50 a month. Voucherswere issued to appellant
              for his servicesas janitor,and the county,superin-
              tendent, N. S. Jones, apprcvedtwo of them before he
              went cut of office. He was succeededby Xiss Eva
               Staickland,and she refusedto apwove the seven remain-
               ing vouchers. The matter ~8s appealedto the county
               board of education,then to the state supcrtitendent,
               and finally to the state board of education;the last
               tw, mentionedsustainingthe county superintendent.
               No specialtax was levied by sohools1 and 2, with whioh
               appellantwas connected,but vere run on statemoney
               alone. Appellantperformedservicesboth as principal
               and janitor'fornine months, the time for which he was
               employedby the trustees. Yiss Stricklandresigned
Hon. T. M. Trimble,Page 3 (O-2838)



            and was suooesdedby appellee. The voucherswere
            not presentedto her for approval.

                 "The court foundthat the contractwith appel-
            lant,for his servicesas janitorwas made to evade
            the terms of article2780 and article2781, Revised
            Statutes,whioh provide,  among other things,that a
            teacherholdinga first-gradecertificateshall in
            no event reoeivemore than $75 a month frcm the pub-
            lic free schoolfund. The court also found that a
            man named TristanYmldanadowas also employedas
            janitorin the same school in which appellantwas
            employedas principaland janitor, The law could not
             be evaded in that way, and the vouchers granted by
            complaoenttrusteeswere properlyrejectedby the
            county superintendent.It is a preposterousproposi-
            tion that a countryschool, or two countryschools,
            would requirethe servioesof two janitors. Ve are
            oTthe opinionihatit was never intendedthat the
            principalof a school should be paid tvm salaries ,
            cut of the public free schoolmoney.

                 "The first sectionof article 2772, Rev. Stats.,
            which is cited by appellant,providesthat the state
            and county availableschool funds shall be used ex-
            clusivelyfor the payment of salariesofteachersand
            superintendents and fees for taking the soholastic
            cansuo,and we fail to see what aid and comfortthat
            gives a man who is endeavoringto obtain a part of
            the schoolfund for servicesas a janitor,vhen he
            has drawn for the same time pay as principalof the
            sohool. It is true that in the second sectionof the
            artiolecited it is provided that a surplusof such
            state fund may be used to pay janitorsand for other
            enumeratedpurpopes,but not to increasethe pay of
            teachers. The other articles snd decisionscited do
            not sustainthe contentionof appellant.

                 "The judgmentis affirmed."

             In the case cited,the school trustees could not lawfullypay
mere than $75.00 to the teacheras salary, and the tNStSeS  undertookto
give him additionalmoney as janitor. The court held that it could not bs
done.

             In your situationyou cannot legallypay for group insuranoe
with your schoolfunis, and in cur opinionyou wouldbe doing the ssme
thing by providingin the contractswith the teachers that they bs required
to paythe distriot'spart of the premilrm of the group insurance.
Hon. T. M. Trimble,Page 4 (O-2838)



             (3) If the trusteesshould provide in their contractsdth
the teachers that theymustn.~ea certainpart of thbir salary to pay
for premiumson insurance,it would seem that the amount of the so-called
salary which was to be used for the paymentof such premiumswould still
be public money and, therefore,not availablefor the purohaseof insur-
ante.
             The SupremeCourtof Unnesota, inthe case of State ox rel,
Jennisonvs. Rogers,reportedin L.R.A. 58, page 663, involvinga contract
betweentrusteesand teacherswhereby a certainamount of the teachers'
salarieswas retainedfor-the purposeof creatinga teachers'retirement
fund, it MS held that the money so retainedwas still public money, and
could not be so usedr

                 "Theauthorityof the board is also questioned
            upon the groundthat the money retainedis in fact
            publicmoney, and not the private funds of the teach)
            a-6. It does not seem ver- material whether the money
            so assignedbs consideredpublic or privatefunds --
            the resultmust be the some. But it is interestingto
            noticewhat the praoticaleffect is of carryingcut the
            plan outlinedin the petition. If the entire salary had
            been paid to relator,and he had then voluntarilyrelin-
            quishedor paid back 1 per cent thereof for the purposes
            expressed,it would clearlybe privatemoney; but 1 per
            cent never had been paid in fact, and it never vrascon-
            templatedthat it shouldbe. When the relator entered
            into the contracthe surrenderedavsolute controlover
            that portionof his salary,and, in effect, entered'into
            a contractwith the board that his salalywould bs 99
            per cent of the amount nominallystated. So from this
            view of the case it appearsto us that the money retain-
            ed nsvsr left the treasury,but remainedpublio money,
            and the board of educationhad no authorityto divert it
            from the uses mentionedin the statute."

This same case also holds that a contractbetween trusteesand teachers,
whereby the teachersare requiredto pay a certainamount of their salaries
into a teachers'retirementfund could not be sustainedon the ground that
such plan would be in the interestof the schools,and the contractwas
declaredto be ultra vires and void.

            If a contractcreatinga teachersretirementfbnd oould not be
sustained,then, in cur opinion,school trustees,in the absenceof some
statuteauthorizingthe same,would not have the power to require in
teachers'contractsthat they carry insuranceof any kind.
.




    Hon. T. M. Trimble,Page 6 (O-2636)




                 Until the Legislaturehas authorizedthe expenditureof
    school finds for the purchaseof group life insurance,you are advised
    that it is cur opiniomthat such funds cannot be so used.
                                                Yours very truly

                                            ATTORNEY GENFRALOF TEXAS


                                             By /s/ Grover Sellers
                                                    Grover Sellers
                                                 First Assistant



    Enclosure

    APPROVED DEC 18, 1940
    /s/GERALD C. MA3iN
    ATTORNEY.GENSRAL OF TEXM                           APPROVED
                  :   -.                             Opinion Cqrrmittee
                                                         By Bm
                                                        Chairman
    THIS OPINION CONSIDZRED
    Ali'D
        APPFJXED IN LXWl'ED
    CONFERENCE
