                  OFFICEOF   THE ATTORNEYGENERAL     OFTEXAS
                                    AUSTIN
       GROVER   SELLERS
       ATTORNEY~GENERAL




      Donorable Earry Bengo Crazier
      Chairman and ijxecutiveDirector
      Texas Unemployment ComppansationCommission
      Austin 19, Texas
                                   Opinion Do. 04         \




                liehave given                                       requesting
      the'.opinionof l&Is

_,.                                                    itution of Texas, .
                                                        ado River 4uthorlty
                                                    olitic and corporate
                                                      utbority to exercise
                                              conoemini; the subject matter
                                                         The act creating the
                                                       ns this language. Ch. 7,
                                             The Court3 have reco;gized and so
                                                       the above section and
                                                       gencies and political
                              te, performinq Covcrnmontal function3 and
                                ootiry a3 counties and other politiccl sub-
                                       Mllaay County :J.Control and I. Dist.'
                               S.M. (2a) 936 and ~a363   0itoa therein; Lo~or
      Colored0 ?ii            y v. Chemical D3nk and Trust co., aecia0a
                              ot yet officially reportad.
                The Texas &employment CompensationAct, codified 3s Article
      $i221b,Vernon's Civil Ststutes of Texa3, Acnotatoa; 1925, as amended,
      provides for each employer subject to the ,2ctto pay tsxes with respect
      to wages pcid by it for em loymant. Section 19 (c) (5) of thiisAct
      (llrticle522lb-17 (g! (5)7, hoiwver, prcvidos thnt:
       .




      HonorableH3rry Rcnge Croziar - f-age2
                    Vbe term lemployment'shall not include:
                    "(Al Service performed in the employ of this
               State, or any politic31 subdivision thereof, or any
               instrumentalityof this State or its political sub-
               divisions,
                    ". . ."

                Since the Lower Colorado River Authority is a Governmental
      agency,and a ~OlitiC31  subdivisionof this state, and such agencies
      do not coxe rithin the provisions of the Texas Unemployment Conpensa-
 :    tion Act, It I3 the opinion of this department that this agency Is not
      subject thereto. As a consequencethereof, it follow that its em-
      ployeesare not entitled to the benefits thereunder.
                In resching the.aboveconclusion, viehove not failed to
      considerths second paragraph of your letter of request In which you
      direct our attention to cases dealing with remedial or regulatory
      legislationin which certain Stste,or.governmental instrumentalities
      uese subject to such remedial laws upon the bnsis that they were of a
      proprietaryor competitivenature and thus did not come within the
      ordinaryconstitutionalinhibition of statutory exemption of govern-
      a3ntal instrumentalities.
.’I             It Is our contention thet the Legisletura hasaouched in
      plain and unambiC,uouslanguagewhat employment constitutes and chat
      doss not corn0within the purview of employment. For us to expand upon
      this plain language would be encroaching upon the province of the
      Legislature. This is 'fullybrought forth in the case of Creekmore V.
      1ublic Bait Railroad Co.mxission,134 k'6d.(26) 576, certiorari denied
      by the Sunram Court of the Gnited States. from which we quOt0 In port
      aa folloG9:
                    "The exclusion provis'ionof Section 3 (d)'of
 I             the Fair Labor St3ndardsAct is couched in plain ona
               unambiguous 1onguaS.eand should be given effect
                                                            . as
 ,             it is witten. Appellant strongly contends, noVevor,
               that because of the remedial nature of the ;Sctit ~3s
               the 1aCislativo Intent to includs vgithinits covor3Se
               omployeos such as those v!orkinC;
                                               for the Fublic Eielt
               Railroad Cozuniasionfor the City of Xew Orlanns; that
               in operatinS the rzilroed the City of X~V Orleans acts
               in a purely proprietary calzicity;and that emRloy33s
               Of tke railroad should be within the coverage Of the
               Act.
          xonorablaEsrry i?engeCrazier - &age 3

                        *In construingthe Act the duty of the Court
                   is to determineuhat enploysrs and employees are
                   within itscovdrage, not what e,nployess'should'
                   have been covered, for the question  of who 'should'
                   be covered is a matter solely nithln the province
                   of the le@slative branch of the govarnment. The
                   langunge of Section 3 (d) being plaintiits meaning
                   oloar, the rsoult reasonable,ne see no reason for
                   resortinS to extraneous conslderationsIn an effort
                   to oonstrue and give to such language another and
                   different mean*.     Cf; Helvari V. New YorKTrust
                   co., 292 U. S, 455 5&+ s ct 82      78 L z& 1361;
                   United States v. U& Pao: R.'Co.,'278U: S. 269, 49
                   S. Ct. 133, 73 L. Ed. 322.”

    :..
                    Iieare of the opinion that whether or-not proprietary or
:~. p:    competitivefunction of a governmelltalinstrumentalityoreagency
          shouldcome within ths provisions of the Texas Unemployment Corn-
          FenSation Act are matters solely within the province of the
          Legislatureof the State of Texas; that the Legislature has by
          Sectionlg (5) (5) ln plain language axempted political subdivisions
          end governmentalagencies from the provisions of the Texas Unemploy-
          rent CompensationAct, whether their funations be aomptitive    or
          proprietary,and we see no reason to resort to other COnsider0tiOns
          or efforts to construe such language
                                           -. and give it a different meaning*
                                                Yours very truly
                        .
                                            ATTORNZY GlR?iR4L OF T3XAS



                                           BY     Robert 0. Xooh
                                                  Assistant
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