Attorney General Opinion JM-0205

JIM MATTOX Attorney Gendral Supreme Cowl BulldIng P. 0. BOX 12548 Austin. TX. 7E?ll- 2549 512/475-2531 Telex 910!674.1367 Telecopier 512/4750266 714 Jackson, Suite 7M) Dallas. TX. 75202-4506 214/742-8944 4824 Alberta Ave., S&e 164 El Paso, TX. 799082793 916l6.33.3464 1001 Texas. Suite 700 Houston. TX. 77002.3111 7131223-5888 606 Broadway. SuWs 312 Lubbock. TX. 79401.3479 SW7476239 4309 N. Tenth. Suite S McAlle”. TX. 78501-1695 5121882.4547 200 Main Plaza. Suib 400 San Antonio. TX. 7820527’97 512l225.4191 An Equal OppOrtUnitYI Affirmative Action Employer The Attormy General of Texas C’ctober 3, 1984 Hr. Ray K. Procun:ic!r Director Opinion No. JM-205 Texas Department o:! Corrections P. 0. Box 99 Huntsville. Texas 77340 Re: Benefits available to employees of schools operated by Department of Corrections for inmates Dear Hr. Procunie:: I Your predecessor in office asked several questions about the benefits availabll? to employees of the schools for inmates established and operated by tte Texas Department of Corrections under chapter 29 of the Education Code. The provisions of chapter 29 are as follows: 529.01. The lloard of Corrections may establish and operate schools at the various units of the Departm’z!lt of Corrections. 129.02 All persons incarcerated in the Department of Correcttons who are not high school graduates are ellgiblz to attend such schools. 129.03 The Board of Corrections may accept grants from both public and private organizations and expend such fluids for the purposes of operating the schools. 529.04 The total cost of operating the schools authoricEd by this chapter shall be borne entirely by the state and shall be paid from the Foundation School Program Fund. Such costs shall be con- sidered annually by the Foundation School Fund Budget (lommittee and Included in estimating the funds needed for purposes of the Foundation School Program. No part of the operating costs herein p. 919 Mr. Ray K. Procunier - Page 2 (a-205) provided for shall be charged to any of the school districts of this atate. 129.05 A formula for ::lle allocation of professional units and other operating expenses shall be developed by the Central Education Agency and approved by the State Board of Education. Acting under this authority, the Board of Corrections established the Windham schools in 1969. designating itself the Board of Trustees. Minutes of Texas Board of Corrections, November 3, 1969. Your first question concerns benefits provided by the General Appropriations Act of 1983, while your other questions relate to benefits available under general statutes. We will first deal vith your questions on general law and then consider the appropriations act provisions. Tour second question is as follows: 2. When a conflict exists between the policies of the Texas Department of Corrections and those of the Texas Edwation Agency with regard to Wlndham School System employees, which prevails? It is suggested that section 1.04 of the Education Code controls the answer to this question. Section 1.04(a) of the code provides that [t]hls code shall apply to all educational institutlons supported either wholly or in part by state tax funds unless specifically excluded. Chapter 29 of the Education Code does apply to the Windham schools, but it is not clear that section 1.04(a) renders any other Education Code provision applicable to these schools. The Board of Corrections refers to the whool program as a “school system” or “school district” and has named itself the Board of Trustees for the Windham School System. Nwice of Open Meeting, Department of Corrections Board, September 12. 1963. 8 Tex. Reg. 3361 (1983); Minutes of Texas Board of Corrections, November 3, 1969. See Attorney General Opinion MW-363 (1981). Despite this nomenclature,-& Windham schools are very different from the public schools established under the Education Code. The Windham schools are governed by the board of a state agency. not by the elected trustees of a school district. See Educ . Code 5923.25. 23.26. They are operated by the prison system. not by a political subdivision. See Kings Estate v. School Trustees of Willacy Co., 33 S.W.2d 783 (Texxiv. App. - San Antonio 1930, writ ref’d). a p. 920 Mr. Ray K. Procunier - Page :I (m-205) Because of the special population they serve, the Windham schools also operate differently from the typical public school subject to the Education Code. For examplar, Department of Corrections schools are operated year round. See Allocation of Personnel Units to the Department of Correctloos approved by State Board of Education, September 13, 1975. To be eligible, a student must attend not less than six hours a week, must m)t have graduated from an accredited high school, and must be able tc profit from the program. Id. Numerous Education Code provisions applicable to educational institutions for school-age children could not apply to the Windham schools. See, a, Educ. Code chs. 17, 13 (county administration); ch. 20 (school district funds); ch. 21 (provisions on admission, attendance, transfers, kindergarten, suspensions, consolidated elections). We do not believe section 1.04 offers any guidance as to which Education Code provisions o,:her than sections 29.01 through 29.05 apply to the Windham School System. However, section 29.05 provides that the Texas Education Agency shall develop a formula for allocating professional units and 0the.c operating expenses in the Department of Corrections schools. Reasonable regulstio%3 affecting Windham employees made by the Tess8 Education Agency pursuant to this provision would prevail over a contrary Department of Corrections policy. Otherwise, in the absence of other legislation governing benefits for or restrictions on the Windham employees, the Board of Corrections has authority tc establish working conditions under its power ~to operate the schools. Educ. Code 129.01; see generally Attorney General Opinions R-786 (1976); E-659 (1975). You next ask: 3. Can Windhas School System employees be granted a 180-day lrinimum leave of absence without pay benefit when 'lexas Department of Corrections employees are limfted to only a six weeks' minimum benefit? Section 13.905 of the Education Code provides school district employees with leave time fcr temporary disabilities. The governing board of a school district may establish a maximum length for a disability leave, which shall not be "less than 180 days." Educ. Code §13.905(f). To our knowledge, the Texas Education Agency has not imposed a similar requirement on the Windham schools under its authority to allocate professional units and operating expenses. Until this agency establir.tes a reasonable regulation pursuant to section 29.05 of the Educzltion Code, the Board of Corrections has authority under section 2!1.01 to establish the minimum period of disability leave for Windhalo school employees. However, the Board of Correction& may give teachers in the Windham schools a longer term of disability leave than it gives other employees if there is a reasonable basis for the diritinction. p. 921 Mr. Kay K. Procunier - Page di (J-M-205) Your fourth question is iw follows: 4. For purposes of workmen's compensation benefits and group :lnsurance benefits, are Windham School System emplo:rees bound by the same rules aa other (non-Windham) employees of the agency? The Board of Correctiow. as trustees for the Windham schools, has authority to hire and f,L::e school employees. Educ. Code 529.01. See Minutes of Texas Board of Corrections, September 12, 1983 at 719. EZeover , the Windham schools are supported by legislative appropriation. Their financing comes under the Foundation School Program, which normally in,z.ludes state available school funds and school district ad valorem 1:xes as well as state appropriations for public education. Educ. Coch! 516.251. However, the Windham schools may only receive the latter ~:ype of funding. Their students are for the most part too old to btr,efit from the available fund. See Tex. Coast. art. VII, 05; Educ. Code §§15.12. 21.031. Further,yction 29.04 provides that &he Windham schools' operating costs may not be charged to local school distclcts. ~Thus, because Windham teachers are hired and fired by the Board of Corrections and paid from state general revenues, they are as a general matter state employees. Article 8309g. V.T.C, S., provides workmen's compensation insurance for state employe,:.;. "Employee" includes a person in the service of the state pursuant to appointment or an express contract of hire. We believe Windham schDo1 employees come within this definition and qualify for workmen's compensation benefits under article 83098. Article 3.50-2 of the Insurance Code provides for uniform group insurance benefits for "all employees of the State of Texas." Sec. 2(a). An "employee" includes an appointive employee in the service of the state who receives compt:r.sation on a warrant issued pursuant to a payroll certified by a de?.wtment of the state. Ins. Code art. 3.50-2. 13(5)(A)(M). We a::,! informed that an agent of the Board of Corrections certifies the pil:rroll for the Windham schools. Based on this information, we conclude that employees of the Windham schools are entitled to uniform groull insurance benefits under article 3.50-2 of the Insurance Code. Your fifth question is as follows: 5. Does the Texas Department of Corrections have the authorit:{ to limit leave of absence without pay benej'its to a level less than the maximum allowed by law or by the rules of the Uniform Group Insurance Program? The Employees Retirement System has issued the following rule under article 3.50-2 of the Insurance Code: I u. 922 Mr. gay K. Procunier - Psge !i (a-205) An employee in M approved extended sick leave without pay status or in an approved leave of absence without pay status may continue the types and amounts of coverage in effect on the date the employee enters t:t,at status for a maximum period of 12 months. 34 T.A.C. 581.5(f)(5) (198:!:1. This rule governs the continuation of insurance coverage for an Inbployee on unpaid leave pursuant to other law. It sets a maximum time that an employee may continue coverage during unpaid leave, but ices not purport to establish the term of leave. Thus, this rule does not restrict the Board of Corrections’ power to establish leave-of-sbsence policy for its employees. We finally turn to your question about benefits under the general appropriations act. General Appropriations Act, Acts 1983, 68th Leg., ch. 1095. art. V. at 6171. This question is as follows: 1. Are all Windham School System employees subject to all t:t,e benefits and restrictions in article V [of the current general appropriations act]? If not, are any of their employees so included? The appropriations act may include only items of appropriation and riders directing, limi ::Lng , or detailing the use of appropriated funds. Tex. Const. art. III, 535; Jessen Associates v. Bullock, 531 S.W.2d 593 (Tex. 1975); Fu:.moie v. 1 Lane, 140 S.W. 405 (Tex. 1911); Attorney General ODini’ L%- V-1254 (1951). Provisions enacting. repealing, or amending other laws may not- be included in a general appropriations act. Moore v. SFpa;d, 192 S.W.2d 559 (Tex. 1946); Attorney General Opinions .1&64 1983 ; M-1199 (1972); V-1254 (1951). A rider to the appropriations act thus cannot operate as an isolated provision of law but mur:f. relate to an item of appropriations. Section 1 of article V reccgnizes this well-established doctrine. The provisions set forth in this and all other Articles of thi.E Act are limitations on the appropriations m&ee in this Act. There are a number of riders in article V which provide benefits or establish restrictions f’cmr state employees. General Appropriations Act, Acts 1983, 68th Leg.. zh. 1095. art. V. 01 at 6171 (salaries for classified employees of ccxtain agencies); 57 at 6203 (holidays for state employees); 58 at 62(1l, (vacation and sick leave for employees of the state); 512 at 6208 (travel by employees of agencies). These riders detail the salaries or benefits payable to state employees; they are germane to appropriation items which provide compensation for state employees. p. 923 Mr. &y K. Procunier - Page '5 (JM-205) Section 29.04 of the I:i.ucation Code provides that the cost of operating schools for inmates shall be paid from the Foundation School Program Fund. Those funds z:e appropriated in part in the following items: TFXAS CENTRAL FDUCKIION AGENCY - PROGRAMS 1. Foundation SchoDL Program Allocations to Local Schools a. Regular Program, estimated b. Vocational Eiucation c. Comprehensive Special Education . . . . Acts 1983, 68th Leg., ch. 1095, art. III at 6028. Host of these funds go to school districts or regional programs and thus are not used to compensate state employeefi. However, a small portion of the appropriation will be used I:(# compensate the state employees hired by the Board of Corrections to operate the Windham schools. Thus, article V riders detailing benefits and restrictions for state employees are germane to thl.ri appropriation because the appropriation provides compensation for some state employees. These riders are not, however, applicable to school district employees, who are not state employees. A valid rider is not necessarily identical in scope with a single item of appropriation. For example, Attorney General Opinion V-1254 (1951) found constitutional the perennial rider prohibiting the use of appropriated funds to pay saLary to "any employee who uses alcoholic beverages while on active duty." See Acts 1983, 68th Leg., ch. 1095, art. V. 510 at 6208. This apinion~o found constitutional riders on rates for travel expense to be paid from appropriated funds to state employees. Travel expenses 'nay be paid out of an appropriation item designated "contingent exp~lse"; the item need not be allocated exclusively for travel. See Attorney General Opinion V-50 (1947); see also Letter Advisory No.x':1973) (appropriation drafted to condense detailed language formerly used). Windham school employees are entitled to the benefits for and are subject to the restrictions on state employees found in article V of the General Appropriations I,ct. SUMMARY The Board of ~:~,rrections has authority under section 29.01 of the Education Code to establish working conditions for employees of the Windham schools, absent a contrary policy established by the Texas Education Agency under section 29.05 of the code. The Bo.a,rd of Corrections may establish p. 924 . Mr. Ray K. Procunier - Page ;' (31-205) the term of disability leave for Windham school employees and is nor: bound by section 13.905(f) of the code. Windham employees are state employees entitled to insurance benefits under article 3.50-2 of the Insu,r+mce Code and to workmen's com- pensation benefits under article 83098. V.T.C.S. The Employees Retirizment System rule on employee's continuation of iuourance coverage during unpaid leave does not affect the Board of Corrections' power to establish zhe time period of unpaid leave for its employees. The Windham school employees are subject to riders in article V of the General Appropriations Act which apply to state employees. -J I H MATTOX Attorney General of Texas TOM GREEN First Assistant Attorney General DAVID R. RICHARDS Executive Assistant Attorney General Prepared by Susan L. Garrison Assistant Attorney General APPROVED: OPINION COMMITTEE Rick Gilpin. Chairman David Brooks Co110 Carl Susan Garrison Jim Hoellinger Nancy Sutton p. 925