              EL%       ORNEP

                      OF   TEXAS




Commissioner John H. Winters
State 'Department of Public Welfare
Austin, Texas

                           Opinion NO. c-68
                           Re:   Whether Policemen or other
                                 Police Department employees
                                 are covered by Federal Old
Dear Commissioner Winters:       Age and Survivors Insurance.
         This office Is in receipt of your letter of April 9,
1963,   where you ask the following question:
             Whether "other employees" of the Police,
        Department who, under a court decision, were
        declared to have Civil Service status, and who,
        under a City Ordinance, were declared to have
        a classification aa policewomen because of their
        Civil Service status, are subject to Social Se-
        curity coverage under 42 USCA, Section 418, of
        the Federal Social Security Act, pa:ticularly in
        view of thenspecific exclusions of   olicemen
            ;irrnen contained in Section 418 (d)(s)A of
        ;u-~z
               .
                      Statement of Facts
       The State Department of Public Welfare is authorized,
under the provisions of House Bill No. 603, Chapter 500, 'page
1480, General and Special Laws of the State of Texas, 52nd
Legislature, Regular Session, 1951, as amended, to contract
with the incorporated cities in Texas for the extension of
Federal Old Age and Survivors Insurance coverage, subject to
limitations of Section 418 of the Federal Social Security
Act.
       Section 418 of the Federal Act provides that Old Age
and Survivors Insurance coverage can be extended to the em-
ployees of political,subdivisions. The Act provides, further,



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Commissioner John IL Winters, page 2 (C-68)


that in the event coverage is extended to employees al-
ready covered by a retirement system; the eligible employ-
ees must first vote favoring OASI doverage in a referendum
su ervised by the Governor or his representative. Se&ion
&(d)(5)A   of the Federal Social Security Act pIaces a g;u;:r
specific exclusion relating to policemen and firemen.
fore, policemen and firemen whose'posltlons are subject to
coverage by a retirement system are not eligible to vote in
the referendum, nor may Social Security coverage be extended
to them.
       The City of Wichita Falls entered into an agreement for
the extension of OASI coverage, effective as of January 1,
       The State-Federal agreement effectuating this agree-
i%?z'was signed on February 8, 1957. At that time the City
employees, including policemen and other employees of the
police department, were covered'by the Texas Municipal Retire-
ment System. Although policemen were excluded from partici-
pating under the Social Security agreement, other employees
of the Police Department, as well as employees of other city
departments, were included for Social Security participation
since the city did not classify them as policemen. A suit
filed in the 30th District Court of Wichita County, styled
Kathleen Cox v. City of Wichita Falls, 300 S.W.2d 317 (Tex.Clv.
App. lyb'(,error ref. n.r.e.), held that certain female em-
ployees of the City Police Department were entitled to enjoy
the status of Civil Service employees. Further, that they
were "members" of the Police Department within the statute es-
tablishing minimum compensation for the members thereof.
       OnMarch 13, 1961, the Board of Aldermen of the City of
Wichita Falls enacted Ordinance No. 1944 providing for the
classification of all policemen under Civil Service. Also,
that female employees of the City of Wichita Falls Police
Department who have Civil Service status shall have the classi-
fidation of Policewomen and shall be ineligible to hold any
other classification within the Police Department.
       The Federal Social Security Administration has received
a formal request from one of the women employees for a deter-
mination as to her correct Social Security earnings record
with the City of Wichita Falls.
       The following statutes and ordinances are pertinent to
the question you have asked:




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-   -




        Commissioner John H. Winters, page 3 (c-68)


               42 USCA, Section 418(d)(5)A of the Federal Social
        Security Act, in part:
                    "Nothing in . .   this subsection shall au-
               thorize the extension'of the insurance system
               established by this title to service in any
               policeman's or fireman's position."
               Ordinance No. 1944, City of Wichita Falls, March
        13, 1961, in part:
                    "Section 2. All female employees of the
               City of Wichita Falls Police Department who have
               Civil Service status shall have the classifica-
               tion of Policewoman and shall be ineligible to
               hold any other classification with the Police
               Department in said city."
               Since the female employees of the Police Department of
        Wichita Falls are "policewomen" as set out underthe pro-
        visions of Section 418(d)(5)A of the Federal Act, and as they
        are already covered by a retirement system, they would be ex-
        cluded from receiving benefits from Old Age Survivors In-
        surance coverage under Section 418 of the Federal Act. The
        purpose of this exclusion would be to prevent duplication of
        coverage from both acts.

               In the case of City of San Antonio v. Mrs. Cordie Hahn,
        274 S.W.2d 162, the Court held that switchboard operators,
        linemen, clerks, and mechanics employed by the Police Depart-
        ment of San Antonio were members thereof, and entitled to
        benefits of the Firemena and Policemens Civil Service Act.
               The City of Wichita Falls by Ordinance No. 1944, clas-
        sified all female employees of the Police Department as "police-
        women." These female employees are entitled to all benefits
        received by employees of the Police Department. Female em-
        ployees of Wichita Falls Police Department have Civil Service
        status.
               Therefore, this office is of the opinion that both
        through judicial decree and by statutes :he women employees of
        the Wichita Falls Police Department are   olicewomen as de-
        scribed in the exclusion of Section 418(dP (5)A, and are not
        entitled to Social Security coverage under Section 418 of the
        Federal Social Security Act.




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Commissioner John H.Winters, page 4 (C-68)


                          SUMMARY
       The female employees of the Wichita Falls
       Police Department who have Civil Service
       status and are declared to have the classi-
       fication of policewomen by city ordinance
       are not subject to,Social Security cover-
       age under Section 418 of the Federal Social
       Security'Act in view of the exclusion of
       policemen in Section 418(d)(5)A of the
       same Act.
                           Yours very truly,
                           WAGGONER CARR
                           Attorney General

                           ByaLk,&
                               Bill Morse, Jr.
                               Assistant
BM:wb:ms
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
Jack Norwood
Edward R. Moffett
Nicholas A. Irsfeld
Howard Fender
APPROVED FOR THE ATTORNEY GENERAL
By: Stanton Stone




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