                                   The Attormy               General of Texas
                                                       C’ctober   3,   1984
JIM MATTOX
Attorney Gendral



Supreme Cowl BulldIng             Hr. Ray K. Procun:ic!r                      Opinion No. JM-205
P. 0. BOX 12548                   Director
Austin. TX. 7E?ll- 2549           Texas Department o:! Corrections            Re:    Benefits available    to
512/475-2531                      P. 0. Box 99                                employees of schools  operated
Telex 910!674.1367
Telecopier   512/4750266
                                  Huntsville.  Texas     77340                by Department of Corrections
                                                                              for inmates

714 Jackson, Suite 7M)            Dear Hr. Procunie:: I
Dallas. TX. 75202-4506
214/742-8944
                                        Your predecessor   in office   asked several   questions  about the
                                  benefits  availabll? to employees of the schools for inmates established
4824 Alberta Ave., S&e      164   and operated by tte Texas Department of Corrections      under chapter 29
El Paso, TX. 799082793            of the Education Code. The provisions     of chapter 29 are as follows:
916l6.33.3464

                                             529.01.
1001 Texas. Suite 700
Houston. TX. 77002.3111                         The  lloard    of Corrections may establish      and
7131223-5888                                 operate    schools   at the various  units    of    the
                                             Departm’z!lt of Corrections.
606 Broadway. SuWs   312
Lubbock. TX. 79401.3479
                                             129.02
SW7476239
                                                 All persons incarcerated    in the Department of
                                             Correcttons who are not high school graduates are
 4309 N. Tenth. Suite S
 McAlle”. TX. 78501-1695
                                             ellgiblz   to attend such schools.
 5121882.4547
                                             129.03

 200 Main Plaza. Suib      400
                                                The Board of Corrections    may accept grants from
 San Antonio.   TX. 7820527’97
 512l225.4191
                                             both public and private     organizations  and expend
                                             such fluids for   the purposes      of operating   the
                                             schools.
 An Equal OppOrtUnitYI
 Affirmative Action Employer                 529.04

                                                 The total     cost   of   operating   the   schools
                                             authoricEd by this chapter shall be borne entirely
                                             by the state and shall be paid from the Foundation
                                             School Program Fund.        Such costs  shall be con-
                                             sidered   annually by the Foundation School Fund
                                             Budget (lommittee    and Included in estimating      the
                                             funds needed for purposes of the Foundation School
                                             Program.    No part of the operating      costs herein


                                                                  p. 919
                                                                                       a

Mr. Ray K. Procunier    - Page 2    (a-205)




           provided    for shall be charged    to any of the school
           districts    of this atate.

           129.05

              A formula for ::lle allocation    of professional
           units   and other   operating    expenses   shall    be
           developed  by the Central     Education   Agency and
           approved by the State Board of Education.

     Acting under this authority,   the Board of Corrections established
the Windham schools in 1969. designating   itself the Board of Trustees.
Minutes of Texas Board of Corrections,   November 3, 1969.

      Your first      question  concerns benefits provided by the General
Appropriations      Act of 1983, while your other questions     relate   to
benefits    available    under general statutes.  We will first  deal vith
your questions on general law and then consider the appropriations     act
provisions.

     Tour second question     is as follows:

              2. When a conflict  exists between the policies
           of the Texas Department of Corrections   and those
           of the Texas Edwation      Agency with regard      to
           Wlndham School System employees, which prevails?

It is suggested that section    1.04 of the Education Code controls  the
answer to this question.   Section 1.04(a) of the code provides that

           [t]hls     code   shall  apply   to  all     educational
           institutlons    supported either wholly or in part by
           state tax funds unless specifically      excluded.

        Chapter 29 of the Education Code does apply to the Windham
schools,    but it is not clear that section            1.04(a) renders any other
Education Code provision           applicable    to these schools.    The Board of
Corrections      refers    to the whool        program as a “school     system” or
“school    district”    and has named itself        the Board of Trustees for the
Windham School         System.      Nwice     of   Open Meeting,     Department   of
Corrections      Board, September 12. 1963. 8 Tex. Reg. 3361 (1983);
Minutes of Texas Board of Corrections,             November 3, 1969.   See Attorney
General Opinion MW-363 (1981).            Despite this nomenclature,-&      Windham
schools are very different           from the public schools established       under
the Education Code.         The Windham schools are governed by the board of
a state agency. not by the elected trustees of a school district.                See
Educ . Code 5923.25.        23.26.     They are operated by the prison system.
not by a political        subdivision.       See Kings Estate v. School Trustees
of Willacy Co., 33 S.W.2d 783 (Texxiv.               App. - San Antonio 1930, writ
ref’d).




                                   p.   920
Mr. Ray K. Procunier       - Page :I    (m-205)




       Because of the special population they serve, the Windham schools
also operate differently          from the typical       public school subject to the
Education Code.        For examplar, Department of Corrections                 schools   are
operated     year round.          See Allocation        of Personnel       Units     to the
Department of Correctloos               approved by State Board of Education,
September 13, 1975.           To be eligible,        a student must attend not less
than six hours a week, must m)t have graduated from an accredited                       high
school,    and   must   be   able   tc  profit    from   the   program.     Id.     Numerous
Education Code provisions            applicable     to educational      institutions     for
school-age      children     could not      apply    to   the  Windham    schools.      See,
a,       Educ. Code chs. 17, 13 (county administration);                  ch. 20 (school
district      funds);      ch.    21 (provisions          on admission,         attendance,
transfers,     kindergarten,      suspensions,      consolidated    elections).

      We do not believe      section    1.04 offers    any guidance as to which
Education Code provisions         o,:her than sections      29.01 through 29.05
apply to the Windham School System.            However, section 29.05 provides
that the Texas Education Agency shall develop a formula for allocating
professional     units and 0the.c operating      expenses   in the Department of
Corrections      schools.     Reasonable      regulstio%3     affecting     Windham
employees     made by the Tess8 Education             Agency pursuant      to this
provision     would prevail    over a contrary       Department of Corrections
policy.      Otherwise,   in the absence of other legislation             governing
benefits    for or restrictions       on the Windham employees,       the Board of
Corrections     has authority    tc establish     working conditions     under its
power ~to operate       the schools.       Educ. Code 129.01;        see generally
Attorney General Opinions R-786 (1976); E-659 (1975).

       You next ask:

                3. Can Windhas School       System employees  be
             granted a 180-day lrinimum leave of absence without
             pay benefit  when 'lexas Department of Corrections
             employees are limfted to only a six weeks' minimum
             benefit?

      Section      13.905 of the Education Code provides             school   district
employees with leave time fcr temporary disabilities.                   The governing
board of a school         district      may establish     a maximum length for a
disability     leave, which shall not be "less than 180 days."              Educ. Code
§13.905(f).        To our knowledge, the Texas Education Agency has not
imposed a similar          requirement       on the Windham schools         under its
authority      to allocate      professional      units   and operating      expenses.
Until    this agency establir.tes          a reasonable     regulation    pursuant to
section     29.05 of the Educzltion Code, the Board of Corrections                   has
authority      under section       2!1.01 to establish      the minimum period         of
disability      leave for Windhalo school employees.          However, the Board of
Correction& may give teachers in the Windham schools a longer term of
disability       leave   than it       gives   other    employees    if  there    is    a
reasonable basis for the diritinction.



                                        p. 921
Mr. Kay K. Procunier     - Page di     (J-M-205)




      Your fourth    question   is iw follows:

               4.    For purposes    of   workmen's   compensation
            benefits   and group :lnsurance benefits,  are Windham
            School System emplo:rees bound by the same rules aa
            other (non-Windham) employees of the agency?

      The Board of Correctiow.         as trustees     for the Windham schools,
has authority      to hire and f,L::e school employees.        Educ. Code 529.01.
See Minutes of Texas Board of Corrections,           September 12, 1983 at 719.          I
EZeover ,      the     Windham schools        are   supported     by    legislative
appropriation.        Their financing    comes under the Foundation            School
Program, which normally in,z.ludes state           available    school    funds and
school district       ad valorem 1:xes as well as state appropriations             for
public education.         Educ. Coch! 516.251.    However, the Windham schools
may only receive the latter        ~:ype of funding.      Their students are for
the most part too old to btr,efit          from the available     fund.     See Tex.
Coast. art. VII, 05; Educ. Code §§15.12.              21.031.    Further,yction
29.04 provides       that &he Windham schools'      operating   costs may not be
charged to local school distclcts.          ~Thus, because Windham teachers are
hired and fired         by the Board of Corrections         and paid from state
general revenues, they are as a general matter state employees.

      Article    8309g. V.T.C, S.,   provides   workmen's     compensation
insurance for state employe,:.;.   "Employee" includes a person in the
service of the state pursuant to appointment or an express contract of
hire.   We believe Windham schDo1 employees come within this definition
and qualify for workmen's compensation benefits   under article   83098.

      Article    3.50-2 of the Insurance Code provides for uniform group
insurance benefits        for "all employees of the State of Texas."            Sec.
2(a).   An   "employee"     includes   an  appointive employee in   the service   of
the state who receives compt:r.sation on a warrant issued pursuant to a
payroll    certified      by a de?.wtment of the state.           Ins. Code art.
3.50-2.   13(5)(A)(M).         We a::,! informed that an agent of the Board of
Corrections     certifies     the pil:rroll for the Windham schools.      Based on
this information,        we conclude that employees of the Windham schools
are entitled      to uniform groull insurance benefits      under article    3.50-2
of the Insurance Code.

      Your fifth    question    is as follows:

                5. Does the Texas Department of Corrections
            have the authorit:{   to limit   leave of absence
            without pay benej'its   to a level   less than the
            maximum allowed by law or by the rules of the
            Uniform Group Insurance Program?

The Employees Retirement System has issued             the   following   rule   under
article 3.50-2 of the Insurance Code:




                                     u. 922
Mr. gay K. Procunier    - Psge !i   (a-205)




           An employee in M approved extended sick leave
           without  pay status   or in an approved leave of
           absence without pay status may continue the types
           and amounts of coverage in effect  on the date the
           employee enters t:t,at status for a maximum period
           of 12 months.

34  T.A.C. 581.5(f)(5)      (198:!:1.  This rule governs the continuation    of
insurance coverage for an Inbployee on unpaid leave pursuant to other
law.    It sets a maximum time that an employee may continue coverage
during unpaid leave,       but ices not purport to establish      the term of
leave.    Thus, this rule does not restrict         the Board of Corrections’
power to establish     leave-of-sbsence    policy for its employees.

     We finally    turn to your question about benefits   under the general
appropriations    act.  General Appropriations  Act, Acts 1983, 68th Leg.,
ch. 1095. art.    V. at 6171.   This question is as follows:

               1.   Are all   Windham School System employees
           subject    to all t:t,e benefits and restrictions   in
           article    V [of the current general appropriations
           act]?     If not,   are any of their    employees   so
           included?

      The appropriations     act may include only items         of appropriation
and riders directing,     limi ::Lng, or detailing     the use of appropriated
funds.     Tex. Const. art. III,     535; Jessen Associates      v. Bullock,    531
S.W.2d 593 (Tex. 1975); Fu:.moie v. 1Lane, 140 S.W. 405 (Tex. 1911);
Attorney     General    ODini’L%- V-1254      (1951).     Provisions     enacting.
repealing,     or amending other laws may not- be included           in a general
appropriations     act.  Moore v. SFpa;d,         192 S.W.2d 559 (Tex. 1946);
Attorney General Opinions .1&64         1983 ; M-1199 (1972); V-1254 (1951).
A rider to the appropriations        act thus cannot operate as an isolated
provision     of law but mur:f. relate       to an item of appropriations.
Section 1 of article     V reccgnizes    this well-established     doctrine.

            The provisions    set forth in this and all other
            Articles    of thi.E Act are limitations   on the
            appropriations  m&ee in this Act.

       There are a number of riders in article          V which provide benefits
or establish      restrictions    f’cmrstate employees.   General Appropriations
Act, Acts 1983, 68th Leg.. zh. 1095. art. V. 01 at 6171 (salaries              for
classified      employees of ccxtain agencies);        57 at 6203 (holidays    for
state employees);        58 at 62(1l, (vacation and sick leave for employees of
the state);       512 at 6208 (travel        by employees of agencies).      These
riders     detail    the salaries     or benefits  payable to state employees;
they are germane to appropriation           items which provide compensation for
state employees.




                                      p. 923
Mr.   &y K.   Procunier   - Page '5     (JM-205)




       Section   29.04 of the I:i.ucation Code provides  that the cost of
operating    schools for inmates shall be paid from the Foundation School
Program Fund. Those funds z:e appropriated       in part in the following
items:

              TFXAS CENTRALFDUCKIIONAGENCY- PROGRAMS

              1. Foundation SchoDL Program Allocations
                 to Local Schools

                a.    Regular Program, estimated
                b.    Vocational Eiucation
                c.    Comprehensive Special Education
                . .   . .

Acts 1983, 68th Leg., ch. 1095, art. III at 6028.         Host of these funds
go to school districts     or regional programs and thus are not used to
compensate    state   employeefi.     However,    a small    portion     of   the
appropriation    will be used I:(# compensate the state employees hired by
the Board of Corrections         to operate    the Windham schools.         Thus,
article    V riders    detailing    benefits   and restrictions      for    state
employees are germane to thl.ri appropriation      because the appropriation
provides compensation for some state employees.         These riders are not,
however,   applicable   to school district     employees, who are not state
employees.

       A valid rider is not necessarily        identical  in scope with a single
item of appropriation.        For example, Attorney       General Opinion V-1254
(1951) found constitutional       the perennial rider prohibiting        the use of
appropriated     funds to pay saLary to "any employee who uses alcoholic
beverages while on active duty."         See Acts 1983, 68th Leg., ch. 1095,
art. V. 510 at 6208.       This apinion~o         found constitutional    riders on
rates for travel expense to be paid from appropriated               funds to state
employees.     Travel expenses 'nay be paid out of an appropriation             item
designated     "contingent    exp~lse";    the     item need not be allocated
exclusively    for travel.     See Attorney General Opinion V-50 (1947); see
also Letter Advisory No.x':1973)           (appropriation     drafted to condense
detailed    language formerly used).

       Windham school employees are entitled   to the benefits for and are
 subject  to the restrictions    on state employees found in article  V of
 the General Appropriations   I,ct.

                                      SUMMARY

                  The Board of ~:~,rrections has authority         under
              section   29.01 of the Education Code to establish
              working conditions      for employees of the Windham
              schools,   absent a contrary policy      established    by
              the Texas Education Agency under section 29.05 of
              the code.     The Bo.a,rd of Corrections  may establish


                                                                                       .
                                        p. 924
Mr. Ray K. Procunier   - Page ;'        (31-205)




          the term of disability       leave for Windham school
          employees and is nor: bound by section 13.905(f)      of
          the code.      Windham employees are state employees
          entitled     to   insurance   benefits   under article
          3.50-2 of the Insu,r+mce Code and to workmen's com-
          pensation benefits      under article   83098. V.T.C.S.
          The Employees Retirizment System rule on employee's
          continuation    of iuourance coverage during unpaid
          leave does not affect       the Board of Corrections'
          power to establish     zhe time period of unpaid leave
          for its employees.       The Windham school employees
          are subject to riders in article       V of the General
          Appropriations     Act which apply to state employees.




                                                   -J I H MATTOX
                                                    Attorney General of Texas

TOMGREEN
First Assistant   Attorney   General

DAVID R. RICHARDS
Executive Assistant Attorney       General

Prepared by Susan L. Garrison
Assistant Attorney General

APPROVED:
OPINIONCOMMITTEE

Rick Gilpin. Chairman
David Brooks
Co110 Carl
Susan Garrison
Jim Hoellinger
Nancy Sutton




                                       p.   925
