                               The Attorney           General of Texas
                                                  Dezmber   31, 1985
JIM MATTOX
Attorney General


Supreme Cowl Building          Mr. Marvin J. Titmm                          Opinion No. JM-417
P. 0. Box 12548                Executive Director
Austin, TX. 78711. 2548        Texas Surplus ProllertyAgency                Re:   Whether the Texas Surplus
512!475-2501
                               P. 0. Box 8120                               Property Agency is subject to
Telex 910/874-1367
Telecopier   512/4750266
                               San Antonio, Texas; 78208                    section 35.405 of Title llOB,
                                                                            which requires reimbursement to
                                                                            the general revenue fund for
714 Jackson. Suite 700
                                                                            state retirement contributions
Oallas. TX. 752ON506
214I742.8944
                               Dear Mr. Titsman:

4824 Alberta Ave.. Suite 164        You ask whether the Texas Surplus Property Agency must pay
El Paso, TX. 79905-2793        reimbursement to the general revenue fund for state retirement
91515333484                    contributions pursuant to 35.405 of Title llOB, V.T.C.S., because it
                               receives donatiors of property from the federal government. We
1001 Texas, Suite 700          conclude that the provisions of section 35.405 do not apply to the
Houston, TX. 77002.3111        Texas Surplus Property Agency in the situation you describe.
7131223-5886
                                    Section 35.4C5 provides that

                                           (a) If an employer applies for money provided
                                        by the United States, an agency of the United
                                        States, or a privately sponsored source, and if
                                        any of the money will pay part or all of an
4309 N. Tenth, Suite B
McAllen, TX. 78501-1685
                                        employee,'s salary, the employer shall apply for
512/682-4547                            any legs,llyavailable money to pay state contribu-
                                        tions rr,quiredby Section 35.404 or 36.201 of this
                                        subtitle.
200 Main Plaza, Suite 400
San Antonio, TX. 782052797
51212254191
                                           (b) When an employer receives money for state
                                        contribr,tionsfrom an application made in accor-
                                        dance with Subsection l(a) of this section, the
An Equal Opportunity/                   employer shall immediately send the money to the
Affirmative Action Employer             retirement system for deposit in the general
                                        revenue fund of the state treasury.

                                           Cc) Monthly, employers shall report to the
                                        retirement system in a form prescribed by the
                                        system:

                                              (1) the name of each employee paid in whole
                                           or part from a grant;




                                                                  p. 1903
Mr. Marvin J. Titzman - Pa3e 2     (JM-417)




                (2)   the s#>urceof the grant;

                (3) the amount of          the employee's salary
             paid from the Srant;

                 (4) the amount of the money provided by the
             grant for staz contributions for the employee;
             and

                (5) any other information the retirement
             system determkxs is necessary to enforce this
             section.

             (d) The retirement system may:

                (1) require from employers           reports   of
             applications Em money;

                (2) require evidence that the applications
             include requests for funds available to pay
             state contrit~utions to the retirement system
             for employees paid from the grant: and

                (3)  exami:lethe records of any employer to
             determine compliance with this section and
             rules promulg;%tedunder it.

             (e) A person conunitsan offense if the person
          is an administrr.torof an employer and knowingly
          fails to comply with this section.

             (f) An offense under Subsection (e) of this
          section is a ClaljsC misdemeanor.

             (g) An employer who fails to comply with this
          section may not, after the failure, apply for or
          spend any money from a federal or private grant.
          The retirement ;qrstem shall report alleged non-
          compliance to t.ke attorney general, the state
          treasurer, the Legislative Budget Board, the
          comptroller of public accounts, and the governor.
          The attorney general shall bring a writ of
          mandamus against the employer to compel compliance
          with this section..

     We consider initially the meaning of section 35.405. The Texas
Supreme Court has stated t&at the dominant rule to be observed in the
construction of statutes i:a to give effect to the intention of the
legislature and that, generally, the intent and meaning .is obtained
primarily from the language of a statute. -See City of Sherman v.



                                 p, 1904
    Mr. Marvin J. Titsman - Page 3   (JM-417)
i




    Public Utility Commission of Texas, 643 S.W.2d 681, 684 (Tex. 1983).
    See also Seay v. gall, 677?.W.2d 19, 25 (Tex. 1984). Also, the words
    employed in a statute are ordinarily given their plain meaning.
    V.T.C.S. art. 10; Attorney (GeneralOpinion H-193 (1974).

         Section 35.405 of Title 1lOB is intended to be a recodification,
    without substantive change, of chapter 3, section 3.63 of the Texas
    Education Code which originally was enacted by Bouse Bill No. 2083 of
    the Sixty-sixth Legislature in 1979. The specific language throughout
    the section in question refers to money provided from federal or
    private source* for emplcyees' salaries and to money provided by a
    grant for the state contributions to the retirement system for
    employees paid from a grant. The bill analysis to House Bill No. 2083
    prepared for the House Committee on Public Education, on file with the
    Legislative Reference Library, describes that section of the bill as a
    new section to the Texas Education Code “to provide for the collection
    of federal grant money fcr the state's contribution to [the Teacher
    Retirement System]." Furt,ber,it is well established that penal acts
    and statutes imposing a penalty must be strictly construed. See
    535.405(e), (f), (g); &z     v. American Liberty Pipe Line Co., 172
    S.W.2d 972, 974 (Tex. 1943); State v. Duke, 137 S.W. 654, 662 (Tex.
    1911).

         We conclude that tt,e legislature intended section 35.405 to
    require reimbursement to 1:h.egeneral revenue fund for Teacher Retire-
    ment contributions on salaries that are paid from money provided by
    grants from the United States, an agency of the United States, or a
    privately sponsored source. It is our opinion that the Surplus
    Property Agency normally do,esnot receive such money.

         The Federal Property and Administrative Service Act of 1949, as
    amended, provides that surplus personal property under the control of
    an executive agency of the!federal government may be transferred to a
    state agency which is designated by state law as the agency
    responsible for the fair and equitable distribution of the property in
    accordance with the provisions of the act. See 40 U.S.C. 5484(j).
    Section 484(j)(4)(D) allow:3 the state agency to assess and collect
    service charges from participating recipients to cover costs of the
    state agency's activities. The federal act requires such charges to
    be based on services performed by the state agency.

         The Texas Legislature created and designated the Texas Surplus
    Property Agency as the si:ateagency for the purpose of the Federal
    Property and Administrative Services Act of 1949. See V.T.C.S. art.
    6252-6b. 54. Its primary function is the acquisition, warehousing,
    and distribution of surplus federal personal property to entities that
    qualify under the federal act. The Surplus Property Agency may assess
    service charges for such acquisition, warehousing, and distribution,
    which are deposited in the Service Charge Trust Fund that is not part
    of the State Treasury. The receipts from such charges are authorized,




                                     p. 1905
Mr. Marvin J. Titsman - Page 4     (JM-417)




as needed, for the operation of the agency.        -See art. 6252-6b. %4,
subsets. (1). cm).

     The operating funds from which the Surplus Property Agency pays
the salaries of its employees are generated by the agency's charges
for the acquisition and r~~distributionof federal surplus property.
The federal government's donations of surplus property generates
activity that results in payment of employees' salaries and the
state's liability for r,etirement contributions.       The salaries,
however, are not paid from the donations but from charges paid by
units of local or state gt,vernmentthat participate in the program.
Such charges are not money from federal or private grants. Hence, we
conclude that section 35.405 of Title 1lOB does not require the Texas
Surplus Property Agency to reimburse the general revenue fund for
state ~retirement contributkns unless salaries are paid by the agency
from direct grants of money to the agency from federal or private
sources.

                             SUMMARY

             Section 35.4X     of Title 1lOB. V.T.C.S.,
          requires reimbur,sement to the state's general
          revenue fund for state retirement contributions
          that occur on salaries paid from money provided by
          federal or private grants. The funds from which
          the Texas surplus Property Agency Pays the
          salaries of its tnlployeesare generated by charges
          to the recipientr;of federal surplus property that
          the agency acquires and distributes. Since such
          charges are not money from federal or private
          grants, the reinbursement requirement of section
          35.405 does not ,~pplyto the normal operations of
          the Texas Surplus Property Agency.




                                       J
                                         Very truly you

                                              AL
                                         JIM     MATTOX
                                         Attorney General of Texas

JACK HIGBTOWER
First Assistant Attorney Goneral

MARY KELLER
Executive Assistant Attorney General

ROBERT GRAY
Special Assistant Attorney General



                                   p. 1906
      Mr. Marvin J. Titanan - Pa:ge5 ~fncb17)
. .




      RICK GILPIN
      Chairman, Opinion Comitte~z

      Prepared by Nancy Sutton
      Assistant Attorney General




                                    p. 1907
