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DAN MORALES
 ATTORNEY
       GENERAL                            March 21,199s

      Honorable Sonya Letson                       OpinionNo. DM-337
      Potter County Attorney
      303 courthouse                               Re: Whether section 157.002 of the Local
      Amarillo,Texas 79101                         Government Code authorizes a county to
                                                   provide medical coverage for district
                                                   officers and related questions (RQ-624)

      Dear Ms. Letson:

             You have asked whether, pursuant to section 157.002 of the Local Government
     Code, a commissioners court may provide medical coverage for certain district officers in
     Potter County. You specifically refer to the judges of the 47th 107th. lSlst, 25 lst, and
     320th disttict  courts, the 47th district attorney, and the Potter County agricultural and
     home extension agents (the “county extension agents”). You also ask whether a reduction
     in medical benefits violates the Americans with Disabiities Act, 42 USC. ch. 126;
     whether the county would violate the Fourteenth Amendment to the United States
     Constitution if the county provided some district officers with medical insurance but not
     others; and whether sn order of the county commissioners court is invalid because it
     provides a different benefit package to a current district elected officer as opposed to a
     successtill challenger to that officer.

              You aver that the state provides the primary salary and benefits for each of the
     district judges, the district attorney, and the county extension agents to which you refer,
     although the county has certain budgetary responsibilities toward each of them. Indeed,
     section 659.012(c) of the Government Code (formerly V.T.C.S. art. 6813b, $3(b))
     provides a district judge with an amaral salary from the state. Section 32.188 of the
     Government Code requires Potter County to supplement the salary a district judge
     receives from the state by paying an annual salary of not less than $3500 nor more than
     $6000. In addition, while the state pays the district attorney’s annual salary, see Gov’t
     Code 5 43.001. the county is authorized, but not required, to supplement the district
     attorney’s salary, see id. 85 46.001 (defining “prosecutor” to include district attorney),
     46.002(l) (listing 47th district attorney as one to whom Government Code chapter 46
     applies), 46.003(b) (authorizing commissioners court to supplement prosecutor’s state
     salary); Ran&l Corm&~Comm ‘rs Court v. Sherrod, 854 S.W.2d 914, 924 (Tex. App.-
     Amarillo 1993, no writ). You state that a district judge and a district attorney receive
     medical insurance coverage f%om the state. See Ins. Code art. 3.50-2, 5 3(a)(S)(A)
     (detining “employee”), ar amended by Acts 1993, 73d Leg., ch. 791, 5 43, at 3130,
Honorable Sonya Letson - Page 2                (DM-337)




314445; id. § 13(b) (providing automatic basic insurance coverage to every t%ll-time
employee). Finally, the Texas Agricultural Extension Service is an agency of Texas A&M
University. Educ. Code $88.001(3).        You state that an employee of Texas A&M
University also receives medical insurance from the state. See Ins. Code srt. 3.50-3,
$5 3(a)(4)(A), 11 (defining “employee” and providing insurance coverage for eligible
employee).

        According to your letter, Potter County, by long-standing practice, has provided
medical insurance for district judges, the district attorney, and county extension agents.
Thus, these officers’ receive medical insurance coverage from the county ss well as from
the state. You claim that the cost to the county “of providing this wverage to the district
officers [about which you ask] is S39,OOO.OO.”To reduce spending, the wunty has
proposed cutting medical coverage for these officers. The county commissioners court
proposes to do so by phasing out medical coverage for district officers. You state that,
under the proposal, the county will retain coverage for all current district officers, but
when an incumbent district officer leaves office, the county will not provide medical
wverage for the district officer’s successor. Accordingly, the county will “retain the
insurance for the current occupant of the office even through subsequent terms of office.
If the ofice[r] ran for reelection, and won, he is provided the coverage. However, a
challenger who won would not be covered.” Your questions concern the propriety of this
proposal to phase out medical coverage for district offtcers.

        A county commissioners court is a court of limited jurisdiction; it may exercise
only those powers that the state constitution and statutes confer upon it, either explicitly
or implicitly. Attorney General Opinion V-l 162 (1951) at 2 (and sources cited therein);
see Canales v. Laughlin, 214 S.W.Zd 451, 453 (Tex. 1948); Renfo v. Shropshire, 566
S.W.2d 688, 670 (Tex. Civ. App.--Eastland 1978, writ refd n.r.e.); Attorney General
Opinions JM-887 (1988) at 2 (and sources cited therein); MW-473 (1982) at 1 (and
sources cited therein). Consequently, while a commissioners court has broad discretion to
exercise powers expressly conferred upon it, the constitution or statutes must provide the
legal basis for any action that the commissioners court takes. Canales, 214 S.W.2d at
453. You believe that section 157.002 of the Local Government Code authorizes the
county to provide medical coverage for the district judges, district attorney, and county
extension agents who work in the county.




        ‘For purposesof this opinion, we will assumethat a districtjudge, district attomcy, aad couaty
extasion agent are “district officers” in the context of section 157.002(a)(2) of the Local Govemnmt
code.




                                              p.   1788
Honorable Sonya Letson - Page 3                 (DM-337)




           Section 157.002(a) of the Local Government Code provides in pertinent part as
follows:

                  The commissioners court by rule may provide for medical care
             and hospitalization and may provide for compensation, accident,
             hospital, and disability insurance for the following persons if their
             salaries are paid from the fin& of the county . . or if they are
             employees of another governmental entity for which the county is
             obligated to provide benefits:


                 (2) county and district officers and their deputies and assistants
             appointed under Subchapter A, Chapter 151. [Emphasis added.]

We know of no statute that requires the county to provide benefits for the officers about
which you ask, who are employees of another governmental body-the state. You do not
inform us whether the county is contractually obligated to provide benefits for any of the
district officers to which you refer. We will assume, therefore, that the county is not so
obligated. Accordingly, section 157.002(a) authorizes the county to provide medical
benefits for the district judges, district attorney, and county extension agents only “if their
salaries are paid from the fbnds of the county.” We understand that the county does not
pay the salaries of the county extension agents; hence, section 157.002(a) does not
authorize the county to provide medical coverage for them.

        Pursuant to section 32.188 of the Government Code, however, Potter County
must pay a supplemental salary to the district judges of the 47th 108th 181st, 251st, and
320th districts.    Additionally, pursuant to section 46.003, the county may pay a
supplemental salary to the 47th district attorney. You do not inform us whether Potter
County pays a supplemental salary to the district attorney. If the county does not
supplement the 47th district attorney’s state salary, we believe that section 157.002(a)(2)
does not authorize the county to provide for the district attorney’s medical care and
hospitalization. If the county supplements the district attorney’s state salary, then we
analyze the application of section 157.002(a) of the Local Government Code to the district
attorney in the same way that we analyze its application to the district judges. We will
assume that Potter County pays a supplemental salary to the 47th district attorney. We
must determine, therefore, whether section 157.002(a) authorizes a county to provide for
the medical care and hospitalization of district judges and a district attorney.

       On its face, section 157.002(a) authorizes a county to provide for the medical care
and hospitalization of a district offker whose salary is “paid from the funds of the county.”




                                           p.    1789
Honorable Sonya Letson - Page 4                  (DM-337)




With no legislative history indicating the contrary? we believe that section 157.002(a)
authorizes a county to provide medical coverage for a district officer who receives a salary
from county fitnds, even a supplemental salary. Accordingly, Potter County may provide



          2The kgislatme enacted the statutory predecessor to section 157.002 of the LocaJ Gownmmnt
Code in 1941. See Acts 1941, 47th Leg., ch. 472. In part, the origtnal enactment authorized the
wmmissioners court in a county “of five hundred thousand (5DO,DOO)    population or mom. . . to formutate
a generat pc~~rmel system and mks aud regutations           for medicat care, hospitatimxion and f&dent
inauranee,” id. caption, *at 754, that would apply to “all deputies, assistants, and employees of the
county,. . and the deputies and assistants appointed by county and district offtcers.. , where the
sataries are patd fmm wmty [timds],” id. p 1. The statute timber authorized the wmmimiiners comt of
any county with the requisite population lo provide in [a] contract of employment that deputias,
aasistmts, and other employees of the county, its departmenta or ofticers, . , whose compwsatton is
payable from funds of any such county. . may receive hospitalization and medical care and treatment in
any cmmty or city-cowty operated hospitals located in such county. . [and to] providefor compensation,
acctdent, hospital, or disability insurance” for these county employees. Id. 0 2. This &a wmmmtcd
that section 2 of the original act, V.T.C.S. art. 2372b. $2. was the only statutoty provision that
empowered a commissioners court to setf-insure county employees, instead of pmchasing insmance
through an insurance company. Attorney General Opinion MW-473 (1982) at 1; accord homey
General Opinions JM-887 (1988) at 2 (citing Attorney General Opinion MW-473 (1982)); JM.406 (1985)
at 2 (citing Attomcy General Opinion MW-473 (1982)).

          In 1987 the legislature nonsubstantively revised the predecessor statute and rewdified it, in part,
as section 157.002 of the Local Government Code. See Acts 1987, 70th Leg., ch. 149, g 1. at 939-40.
After its revision and recodification, subsection (a) provided in pertinent part as follows:

                 In a county with a population of 500,000 or more, the commissioners court
            by rule may provide for medical cam and hospitalization and may provide for
            compensation, accident, hospital, and disability insumnce for the following
            persons if their salaries are paid fmm the funds of the county. . . :
                     (1) deputies, assistants, and other employees of the county,.        , who
            work under the commissioners court or its appointeeq and
                      (2) deputies and assistants appointed under Subchapter A, Chapter
            151, by county and district offtcers.
Id.

         Just like the predecessor statute, section 157.002(a)did not apply to a district otTker. In 1989,
however, the legislature amended section 157.002(a)(Z)to read as it does currentty, autboriztng the wmtty
to provide medical care, hospitaliaation, and hospital insurance for a district offtwr whom salary is paid
from county funds or who is an employee of another governmental entity for which the co~nry is cbligated
to provide benefits. See Acts 1989, 71st Leg., ch. 872, 8 2, at, 3863. The phrase “county and dtstrkt
offtcem” vas pmposed to be added to subsection (2) on the floor of the house during the bill’s second
reading. See H.J. ofTex., 71~ Leg., at 1832 (1989) (wntaining committee amendment no. 1 to C.S.S.B.
936). We found no legislative history indicating the reason for the amendment to subsection (2) of Local
Government Code section 157.002(a)or indicating the kind of district otlicer tbat the legislature intended
to include within the coverage of section 157.002(a)(2).




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Honorable Sonya Letson - Page 5                    (DM-337)




medical coverage for the 47th district attorney, as well as the 47th, 108th, 181st, 251st.
and 320th district judges, to supplement the insurance they receive from the state.

        Significantly, however, section 157,002(a)(2) merely authorizes-it does not
require-a county to provide medical insurance to a district officer who receives a salary
from the county. Thus, the decision to provide such insurance coverage to district officers
is a matter wholly within the discretion of the county commissioners court. CT Run&d
Coun@ Comm ‘I-SCourt, 854 S.W.2d at 924 (stating that under Government Code section
46.003(b), which authorizes county to supplement salary of district attorney, decision to
make such supplemental payment is wholly discretionary on part of commissioners court)
(citing Attorney General Opinion TM-319 (1985)). In answer to your first question,
therefore, Potter County is not required to provide medical coverage to district officers
although the county provides such coverage to elected county officials and county
employees.3

         Under the proposal the Potter County Commissioners Court currently is
considering, however, the county would not stop providing supplemental medical
wverage to all district officers to whom the county pays a supplemental salary, but only to
those who take offIce subsequent to the commissioners court’s order. We find nothing in
section 157.002 that would prohibit such a practice. C’ Canter v. wheeler County, 200
S.W. 537, 538 (Tex. Civ. App.--Amarillo 1918) (stating that commissioners court, which
is statutorily authorized to fix county treasurer’s salary, also is authorized to change
county treasurer’s compensation in its discretion). But see Randall County Comm’rs
Court, 854 S.W.2d at 924-26 (Poff, J., concurring and dissenting) (applying reason-
ableness standard to evaluate commissioners court’s decision to reduce wunty salary of
criminal district attorney). You raise no other statutes that might limit the commissioners
court’s authority to terminate medical coverage in this way. See Gov’t Code 5 46.003(b).


         3You state that you are unawareof any wntract betweenPotter Countyand the district officers
that obligates the county to provide the district ofticers medical coverage in additionto the medical
insurance the districtofticcrsreceivefrom the state. Youalso informus that the PotterCountyPersonnel
HanmmOkstates that the county “provides and pays for group health. for all Ml-time regular
employeesand elected officials,”although the handbook cautions that “[t]he policies and wnditio~
herein are subject to change by the county without notice.” Whether the handbook wnstitutes an
employmentcontractthat appliesto the district officersis an issueof fact, see Federal Expnss Corp. v.
Dutschmonn, 846 S.W.Zd 282, 283 flex. 1993) (citationsomitted);Whitehead v. University of Tex., 854
S.W.M 175, 181 (Tex, App.-San Antonio 1993, no wivrit)(citing W//rite v. HE. Butt Co., 812 S.W.Zd 1,
6 (Tex. App.-&pus Christi 1991, no writ)); White v. H.E. Butt Co., 812 S.W.Zd 1, 6 (Tax. App.-
Corpus Chriti 1991, no tit)  (citing Beny Y. Lbctor’s Health Facilities, 715 S.W.Zd 60,61 (Tea. App.-
Dallas 1986, no tit)), the resolution of which is not subject to the opinion prwess. Ssr, e.g., Attorney
General Opinions DM-98 (1992) at 3; H-56 (1973) at 3; M-187 (1968) at 3; O-2911 (1940) at 2.
Moreover, this otXa does not construe contracts. Attorney General Opinions DM-192 (1992) at 10, JM-
697 (1987) at 6.




                                              p.    1791
Honorable Sonya Letson - Page 6             (DM-337)




        You suggest the commissioners court might be precluded from providing medical
coverage to district offtcers “because it increases the [salary] supplement paid by the
County over the statutory limit of salary supplements.” Section 32.188(d), (t) of the
Government Code states that Potter County may not pay a district judge a supplemental
salary that exceeds S6,OOO annually.          “Salary” is what an employee receives as
compensation for services the employee has performed. Attorney General Gpiions
TM-39 (1983) at 3; M-408 (1969) at 7; see aIs0 Attorney General Opinion M-325 (1968)
at 4 (defining “salary” as fixed periodical compensation that employer pays to employee at
regular intervals for services rendered in course of employment); BLACK'S LAW
DICTIONARY1200 (5th ed. 1979) (defining “salary”). In Attorney General Gpiion M-408
this office considered whether, in the context of article III, section 24 of the Texas
Constitotion, the payment from the fist of insurance premiums for a legislator is part of
the legislator’s salary. Attorney General Opinion M-408 at 6. The opinion concluded that
“salary,” as used in article III, section 24 of the constitution, “must be given its plain and
ordinary literal meaning, that is salary compensation, and does not necessarily include
every benefit or perquisite arising from the possession of office”; therefore, “salary” did
not include the payment of insurance premiums. Id. at 7. We believe that, similarly,
“salary” in the context of section 32.188(d) of the Government Code does not include the
payment of insurance premiums.

        You next ask whether the proposed plan to phase out medical coverage for district
officers violates the equal protection clause of the Fourteenth Amendment to the United
States Constitution. This oflice considered a similar question in Attorney General Opinion
N-401 (1985), which addressed language in a rider to the General Appropriations Act
that excluded from the entitlement to sick leave faculty members at institutions of higher
education with appointments of less than twelve months. Attorney General Opinion
JM-401 at I. The opinion considered whether the rider violated article I, section 3 of the
Texas Constitution, which guarantees equal rights to all persons, and the Equal Protection
Clause in the federal Constitution, Id. at 3-4. The opinion stated as follows:

               The Texas Constitution guarantees equality of rights to all
          persons but does not forbid reasonable classifications. A classifi-
          cation is reasonable if it is based on a real and substantial difference
          that relates to the subject of the enactment and operates equally on
          all within the class.       Classifications made by the legislature are
          largely within the discretion of the legislature and will not be stricken
          down by the courts where there is a real difference to justify the
          separate treatment undertaken by the legislature.     .
               In reviewing legislation under the equal protection clause of the
          Fourteenth Amendment, the United States Supreme Court usually
          has used two primary standards. If a challenged law burdens an
          inherently “suspect” class of persons or impinges on a “fundamental”




                                           p.   1792
Honorable Sonya Letson - Page 7             @M-337)




           constitutional right, the law will be struck down unless the state
           demonstrates that the law is justified by a compelling need. If a
           suspect class or fundamental right is not involved, the law will be
           upheld unless the challenger can show that the classification bears no
           rational relationship to a legitimate state purpose or objective.   On
           a few occasions, the court also has utilized an intermediate test which
           asks whether the challenged law furthers a substantial interest of the
           state.

Id. at 3-4 (citations omitted). The opinion stated that the sick leave policy in question did
not appear to affect either a suspect class or a timdamental constitutional right;
additionally, the sick leave policy probably would not implicate the intermediate
substantial state interests test. Id. at 4. It concluded that a court would apply the rational
basis test to determine the constitutionality of the sick leave policy, inquiring whether the
legislature has a legitimate purpose and whether the legislators’ belief that the use. of the
chahenged classification will promote that purpose is reasonable. Id.;see also Letter
Opinion No. 93-48 (1993) at 2-3 (discussing Attorney General Opinion D&401(1985)).

         A newly hired or elected district officer is not, as such, a member of a protected
class. Nor do you indicate that any other suspect class is involved. In addition, the
provision of supplemental medical coverage is not a fundamental right. Thus, we believe
that a court would apply the rational basis test to determine the constitutionality of Potter
County’s proposal to phase out medical coverage for district officers by providing such
coverage only to district officers who hold that ofice as of a certain date. Whether the
county commissioners court has a legitimate purpose for phasing out medical coverage for
district officers as the county proposes to do, and whether the commissioners court’s
belief that distinguishing between incumbent officeholders and new officeholders will
promote that purpose is reasonable are fact questions that we cannot resolve in the
opinion process. See, e.g., Attorney General Opinions DM-98 (1992) at 3; H-56 (1973)
at 3; M-187 (1968) at 3; O-291 1 (1940) at 2.

        Your final question with regard to Potter County’s plan to phase out medical
coverage for district officers by providing medical coverage only for district officers who
hold office as of a certain date is whether the order of the commissioners wurt adopting
the phase-out plan is invalid because it results in a different benefit package being provided
to a current district elected officer as opposed to a successfbl challenger to that officer.
As we have stated above, section 157.002(a) does not prohibit the commissioners court
from adopting the phase-out plan that you have described. You cite no other statutes that
would preclude the adoption of such a plan. If the phase-out plan violates the equal
protection clause, then the order would be invalid; however, we camtot resolve that issue
in the opinion process.




                                           p. 1793
Honorable Sonya Letson - Page 8               (DM-337)




         You also ask about the possibility of terminating the medical coverage for all
district officers as of a certain date. Specifically, you ask whether a reduction in medical
benefits for existing district o&cers would violate the Americans With Disabilities Act (the
“ADA”), 42 U.S.C. ch. 126. You state that some of the district officers have medical
conditions that Will make it difficult or impossible to replace the supplemental medical
coverage. You suggest that the ADA might prohibit Potter County from terminating a
disabled district officer’s supplemental medical coverage.

        In analyzing the problem you present under the ADA,’ we assume for purposes of
this opinion, as you do, that a district officer is an employee of the county. The ADA
prohibits an employerr from discriminating against a qualified individual With a disabiity6
because of that individual’s disability in relation to job application procedures, the hiring,
advancement, or discharge of employees, employee compensation, job training, and other
terms, conditions, and privileges of employment. 42 U.S.C. $ 12112(a); 29 C.F.R.
3 1630.4. Thus, an employer may not discriminate on the basis of disability against a
qualified individual in regard to compensation or fringe benefits for which the employee is
eligible by virtue of the employment relationship.          29 C.F.R. 5 1630.4(c), (0. A
nondiscriminatory termination of fringe benefits, such as medical coverage, would not
violate the ADA. Whether a particular termination of fringe benefits is nondiscriminatory
is, however, a fact-based determination that is beyond the scope of the opinion process.
See, e.g., Attorney General Opinions DM-98 at 3; H-56 at 3; M-187 at 3; O-291 1 at 2.




       ‘We do not addressin this opinion whetherthe county’s proposalmight be impermtsstbleunder
my other federallaw.

        ‘The ADA defines “employer.” with certain esceplions, see 42 U.S.C. # 12111(5)(B);29 C.F.R
5 1630.2(e)(2),as “a personengagedin an industryaffectingcommercewho has 15 or mom employees
for each workingday in each of 20 or morecalendarweeksin the currentor precedingcaleadaryear, and
any agent of such person, exceptthal, for two years lafter July 26. 1992,)an empleyermeans a PQson
engagedin an industrytieettng cemmereewho has 25 or more employeesfor each workingday in each
of 20 or more dmdar weeksin the currentor precedingyear, and any agent of such person.” 42 U.S.C.
p 12111(5)(A);see also 29 C.F.R 0 1630.2(e)(1).

      6A yqualied individualwith a disability”is “an individualwith a disabilitywho, with or without
masonableaecemmedation,can perform the csrzntial functions of the empleymentposition that such
indikiual holds or desires.” 42 U.S.C. 8 12111(S); 29 C.F.R 8 1630.2(m); see 42 U.S.C. 0 12111(g)
(defining “reasonableaccommodation”);29 C.F.R.I 1630.2(g).(0) (defining“disability”and ‘masertable
aemmmodution”).




                                             p.   1794
Honorable Sonya Letson - Page 9          (DM-337)




                                   SUMMARY

               Section 157.002(a)(2) of the Local Government Code does not
          prohibit a wunty from phasing out its provision of medical coverage
          to district officers by covering only those district officers who hold
          office as of a certain date. Unless a suspect class is involved, such a
          plan violates the equal protection clause of the Fourteenth Amend-
          ment to the United States Constitution only if the county
          commissioners court lacks a leghimate purpose for phasing out
          medical wverage for district officers in this way and if the
          commissioners wutt’s belief that distinguishing between incumbent
          and new office-holders will promote that purpose is unreasonable.

               Terminating medical wverage under section 157.002(a)(2) for
          all district officers on a certain date violates the Americans with
          Disabilities Act, 42 U.S.C. chapter 126, only if the termination
          dis&minates on the basis of disability against a qualiied individual.




                                                     DAN MORALES
                                                     Attorney General of Texas

JORGE VEGA
Fii Assistant Attorney General

SARAH J. SHIRLEY
Chair, Opinion Committee

Prepared by Kymberly K. Oltrogge
Assistant Attorney Genera)




                                       p. 1795
