KEN PAXTON
ATTORNEY GENERAL OF TEXAS
January 25, 2016
The Honorable Dan Flynn Opinion No. KP-0058
Chair, Committee on Pensions
Texas House of Representatives Re: Proper procedure for a state agency
Post Office Box 2910 when a court recognizes a new constitutional
Austin, Texas 78768-2910 right and compliance with the ruling requires
additional state funds (RQ-0039-KP)
Dear Representative Flynn:
You ask for an opinion regarding the status of "current law pertaining to marriage in
Texas," focusing specifically on "what procedure a state agency should follow if the U.S. or Texas
Supreme Court recognizes a new constitutional right and compliance with that ruling requires the
expenditure of additional state funds." 1 The example you provided was the granting of state
benefits to same-sex spouses after the U.S. Supreme Court's decision in Obergefell v. Hodges, 135
S. Ct. 2584 (2015); Request Letter at 7-8; Supp. Request Letter at 1.
You note that the Teacher Retirement System, the University of Texas System, the Texas
A&M University System, and the Employees Retirement System have implemented policies to
extend state benefits to same-sex couples. 2 Request Letter at 7. In briefing submitted to this office,
all of these entities have indicated that they do not anticipate needing state funds in excess of those
appropriated for the current biennium. 3 If compliance with Obergefell requires additional state
funds, however, you ask what procedure should be followed. Supp. Request Letter at 1. ·
1
Letter from Honorable Dan Flynn, Chair, House Comm. on Pensions, to Honorable Ken Paxton, Tex.
Att'y Gen. at I (July 16, 2015) ("Request Letter"); Letter from Honorable Dan Flynn, Chairman, House Comm.
on Pensions, to Honorable Ken Paxton, Tex. Att'y Gen. at I (July 24, 2015) ("Supp. Request Letter"),
https://www.texasattorneygeneral.gov/opinion/requests-for-opinion-rqs.
2 Multiplestatutes require state agencies to extend rights and benefits to eligible individuals' spouses. A
permanent injunction ·exists that prohibits enforcement of the Texas constitutional provision and statutes defining
marriage as the union of one man and one woman. Deleon v. Perry, No. 5:13-cy-00982-0LG (W.D. Tex. July 7,
2015) (Final Judgment).
3See Letter from Paula A. Jones, Gen. Counsel, Emps. Ret. Sys. of Tex. at 11 (Aug. 26, 2015) (stating that
although Obergefell will increase the number of participants receiving insurance coverage, "the increase is not
currently expected to increase enrollment by a large enough number of people to require state funds in excess of
those currently available to ERS to provide such dependent insurance coverage"); Letter from Carolina de Onis, Gen.
The Honorable Dan Flynn - Page 2 (KP-0058)
When a state agency faces a shortage of appropriated funds due to an unexpected
occurrence, the agency may consider which statutory procedures are available to address fiscal
emergencies. For example, as you note in your request, a state agency in the executive branch
could appeal to the Governor for use of an emergency appropriation pursuant to chapter 401,
subchapter D, of the Government Code to obtain additional funding for "purposes for which
specific other appropriations previously have been made." TEX. Gov'T CODE§ 401.061(4); see
id. §§ 401.061-.065. If the Governor decided that an emergency existed and certified such
emergency to the Comptroller, the Comptroller could then determine whether money other than
the Governor's emergency appropriations was available. Id. §§ 401.062(a)-(b), .063(a). Thus, if
no other money was available to enable the agency to fulfill its obligations, the Governor would
then be authorized to spend emergency appropriations made pursuant to section 401.061. Id.
§ 401.065. Alternatively, chapter 317 of the Government Code authorizes the Governor and the
Legislative Budget Board ("Board"), acting jointly, to make certain changes to appropriations
when the Legislature is not in session. Id. §§ 317.001-.011. A state agency could appeal to either
entity to make a proposal "for the transfer of appropriations" to the agency. Id. § 317.003(b). If
the Governor and Board agree, the proposing entity may adopt an order changing the appropriation
in the manner proposed. Id. § 317.005. Whether and to what extent a statutory procedure is
available to a state agency facing a shortage of funds will depend on the individual fiscal
circumstances of the agency and factual determinations that are not within the purview of an
attorney general opinion.
Counsel, & Wm. Clarke Howard, Ass't Gen. Counsel, Teacher Ret. Sys. of Tex. at 4 (Aug. 28, 2015) (stating that
"preliminary analysis conducted by actuaries to the Pension and TRS-Care [indicates] the recognition of same-sex
spouses will have no measurable impact on the funded status or funding requirements of either the Pension or TRS-
Care"); Letter from Daniel H. Sharphom, Vice Chancellor & Gen. Counsel, Univ. of Tex. Sys. at 7 (Aug. 28, 2015)
("UT System does not require additional state funds for these benefits at this time."); Letter from Ray Bonilla, Gen.
Counsel, Tex. A&M Univ. Sys. at 2 (Aug. 28, 2015) ("the A&M System has not or will not expend funds from the
state treasury beyond those appropriated by the Legislature") (all letters on file with the Op. Comm.).
The Honorable Dan Flynn - Page 3 (KP-0058)
SUMMARY
When a state agency faces a shortage of appropriated funds
due to an unexpected occurrence, the agency may consider statutory
mechanisms that may be available to address fiscal emergencies,
including those found in chapters 317 and 401 of the Government
Code.
Very truly yours,
KEN PAXTON
Attorney General of Texas
CHARLES E. ROY
First Assistant Attorney General
BRANTLEY STARR
Deputy Attorney General for Legal Counsel
VIRGINIA K. HOELSCHER
Chair, Opinion Committee