Hon. J. W. Edgar                    Opiinion No. M- 1051
Commissioner of Zducation
Texas Education Agent}            . RF?: W11etha.rretirecd em~~.ny-
201 East 11th Street.                    ees of the Texeis Educa-
Austin.     ‘i’oxas   78701              tion Agency, who ar ,~ot
                                         ireceivin9 ratir~merli.
                                         benefits as melrbers ,jf
                                         the Employees ;<etirement
                                         System, are ell;-r.bl?.
                                         for premium payments
                                         On grOU;Y)Insurance
                                         policies equal to that
                                         of rcgi.iar active e:,;pioy-
                                         ees , and related qutza-
Dear Dr. Edgar:                          tions?

          In your recent letter you requested our interpret+
tion of Subdivision B of SectIon 9 of Article jL28a, Vernon's
Civil Statutes, Section 10 of Article V of the Appropriation
Act of 1971 (S.B. 11, Acts 62nd Leg., R S., i9'71, p. V-38)
and of Se&ion  3 of the Appropriation Act.

          Subdivision B of Section 9 of Artl.clc 6228a was a
new addition to the statute enacted by the 62i;clLegisiature.
Se&ion B provides tha,t the Board of Trustees of the E,:;pl.oyees
Retirement System of Texas shall adopt rules to provide for
participation in the premium costs of Gcoup Life alid Heaith
Insurance Coverage for member retirees c>i'
                                          the System.

          YOU state in your letter that very few retired
employees of the Texas Educatlor, Agency  and its Special Schools
are members of the Employees Pet 1rener,t :;yste:,i:
,

    Hon.   J.   W. Edgar, page 2,       (M -1052)



                 We quote your first question as follows:

                  “1.Are employees of this Agency who have
           retired from active service with the State, and
           who are nc,t receiving retirement benefits as
           members of the Employee Retirement System,
           eligible for payment of premiums on policies
           containing qroup life, health, accident, acci-
           dental death and dismemberment. disability in-
           come replacement and hospital, surgical and/or
           medical expense, equal to that of its regular
           employees?"

              Subdi.vi,sionA of Section 3, Article 6228a provides
    that persons who are covered by the Teacher Re,tirement Act
    shall not be eligible for participation in the Employees
    Retirement System of Texas as defined in Section 2 of Article
    6228a. Therefore, any retired employees of your agency who
    are retired under the provisions of the Teacher Retirement
    System are specifically excluded from Article 6228a. Sub-
    division B of Sectj.on 9, Article 622Sa by its very specific
    terms applies only to "member retirees" of the Employees
    Retirement System of Texas. We must conclude that unless a
    person 1s a member retiree of the Employees Retirement System
    of Texas, the person would not be entitled to the provisions
    of that system.

              Section 10 of Article  V of the Appropriation Bill of
    1971 (S.B. 11, Acts 62nd tog.. R.S. 1971. p.V-313) is enti.ttled
    "Limltationa on Use 0f Other Expense Funds for Paying Salaries
    and Wages."   This section has previously been construed by this
    office in Attorney General's Opinion M-919 (1971), in which it
    was concluded that the word "shall" in the fourth paragraph did
    not make State contributions mandatory. We held that "shall"
    was mandatory only in designatrnq the funds from which any con-
    tribution must be made.

              Sect.~,m 3 of Art'rc 1e V of the Appropria~trons Act (S.
    B. 11, Acts 62nd Leq., R.S. .S971. p,V-33) authorizes the re-
    sponsible officral to transfe,r into the operating fund of the
    agency from local funds and federal grants sufficient monres

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Hon. J. w. Edgar, page 3.        (M-1052.)




to pay the State's share of premiums for insurance for re-
tired employees, We can not consirue Section 3, however, as
enabling leqislarion to ,the Texas Education Agency to pay a
portion of the premiums for the insurance of its retired em-
ployees.

           Section 44 of Article  III   of the Constitution     of
Texas provides .t%at the Legislature shall not grant by abpro-
priation or otherwise any amourrt of money out of the Treasury
of the State to any individual on a claim,     real     or pretended,
when ,the same shall not have been provided for by pre-existing
law. This provision of the Constitution has been construed to
mean that the Legislature has no      power to make an appropriation
unless at the very   time the appropriation was made there existed
some pre-existing law authorizing the same. Ft. Worth Cavalry
_Club, Inc. vs. She'nyard, Controller, 835 S.W. 660 S.Ct. 1935.

          In Austin National Bank of Austin vs ,&eppard,    123
Tex. 272 71 S.W.Zd 242 (1934)--&r Supreme Court   held that the
Legislature cannot appropriate State money to any individual
unless at the very time the appropriation is made there is al-
ready in force some valid law constituting the claim   the appro-
priation is made to pay a legal and valid obligation of the State.

          Since Article 622&a specifically excludes retired em-
ployees of the Texas Education Aqency from its provisions and
there is no previous existing law similar to Subdivision B of
Section 9 of Art:icle 62263, which would be applicable to the
Texas Education Aqency; we must answer  your question in the neq-
ative.

          In view of the negative answer to your first question,
it becomes unnecessary to answer your second and third questions.



            Subdivisi.on a of Section 9 of Article
       622&l, v.cs.. does not include 'retired em-
       ployees of the 'Texas Education Agency  in its



                               -5142-
c


    Hon. J. w. Edgar, page 4,            \M~-105?)




             provisions unless those retired employees are
             members of ,theEmployees Retirement System of
             Texas as defined in Section 2 of Article 622Sa,
             V.C.S. The 1971.Appropriation Bill (s.13. 11,
             Acts 62nd Leg., R.S.) is legally insufficient
             to autho:riee the Texas Education Agency to
             participate separately in ,thepayment of prem-
             iums of insurance for its retired employees,
             there beiny no pre-existing law .to support it
             as required by Article III, Section 44, Consti-
             tution of Texas.

                                                     /;;7
                                                 Vety' truly yours,




                                                 Atto$kay General of Te%as

    Prepared by Robert     W.   Gauso
    Assistant Attorney     General


    APPROVED:
    OPINION COMIITTEE

    Kerns Taylor, Chairman
    W, E, Allen, Co-Chairman
    Houghton Brownlee
    Ronnie     Driver
    John Grace
    Jim Swearingen

    SAN FcDANIEL
    Staff Legal Assistant

    ALFRED WALKER
    Executive Assistant

    NOLA WHITE
    First Assistant

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