E NEY GENERAL
OF YITE~~~s
Hon. Robert S. Calvert Opinion No. M- 408
Comptroller of
Public Accounts
State Capitol Building Re: Insurance for Legislators
Austin, Texas 78711
Dear Mr. Calvert:
Reference ia made to your letter in which you request an opinion
from this office as to the captioned matter. We quote from your
letter, in part, as follows:
“Your official opinion is requested as to
whether the Comptroller is authorized to pay in-
surance premiums for members of the Legislature.
An account for such payment has been received by
this office.
“Section 19 (sic) (Section 24) of Article III of
the Constitution of Texas provides in part as follows:
‘Members of the Legislature shall receive from the
proper funds an annual salary not to exceed $4,800.
per year. . . A per diem not to exceed $12.00 per day
for the first 120 days only of each regular session of
the Legislature. ’ (Emphasis added. )
“In addition. . . Section 6 of Article XVI of the
Constitution of Texas forbids any appropriation for
private or individual purposes.
“Particularly in view of the Constitutional provisions
quoted above relating to the compensation of members
of the Legislature, is an account calling for the expendi-
ture of funds, in excess of the limitation set out in the
Constitution, for the purchase of the below listed types
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I&n. Robert S. Calvert, page 2 (M-408)
of insurance a valid claim against funds in the State
Treasury which the Comptroller is authorized to pay?
“1. Premiums for sickness and accident in-
surance for members of the Legislature.
“2. Premiuma for sickness and accident in-
surance for members, which includes benefits for
dependents.
“3. Premiums for life insurance for members.
“4. Premiums for life insurance for members which
includes coverage of dependents. ”
It appears that the legal questions with which you are concerned in-
volve whether the payment of the insurance premiums would (1) consti-
tute additional “salary”, “per diem” or “mileage” in violation of the
limitation on such items in Article III, Section 24, Constitution of
Texas, or (2) would constitute an appropriation for private or individ-
ual purposes in violation of Article III, Section 51, and Article XVI,
Section 6, Constitution of Texas. With this understanding, we con-
fine our considerations to such questions.
There are at least four Texas Constitutional prohibitions considered
pertinent in respect to such questions, to-wit:
1. Those contained in Article III, Section 51, to the effect that:
“The Legislature shall have no power to make any
grant or authorize the making of any grant of public
moneys to any individual, association of individuals,
municipal or other corporations whatsoever. . , “;
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Hon. Robert S. Calvert, page 3 (M- 40 8)
2. Those contained in Article VIII, Section 3. to the effect that:
“Taxes shall be levied and collected by general laws
and for public purposes only.“; and,
3. Those contained in Article XVI, Section 6, to the effect that:
“(a) No appropriation for private or individual purposes
shall be made unless authorized by this constitution. ”
4. Those contained in Article III, Section 24, Constitution of Texas,
which reads:
“Sec. 24. Members of the Legislature shall receive
from the Public Treasury an annual salary of not exceeding
Four Thousand, Eight Hundred Dollars ($4,800) per year
and a per diem of not exceeding Twelve Dollars ($12) per day
for the first one hundred and twenty (120) days only of each
Regular Session and for thirty (30) days of each Special
Session of the Legislature. No Regular Session shall be
of longer duration than one hundred and forty (140) days.
“In addition to the per diem the Members of each House
shall be entitled to mileage in going to and returning from
the seat of government, which mileage shall not exceed Two
Dollars and Fifty Cents ($2. 50) for every twenty-five (25)
miles, the distance to be computed by the nearest and most
direct route of travel, from a table of distances prepared
by the Comptroller to each county seat now or hereafter
to be established; no Member to be entitled.to mileage for any
extra Session that may be called within one (1) day after the
adjournment of the Regular or called Session.”
Article 3.50 of the Texas Insurance Code provides the statutory
authorization for group life insurance coverage and Article 3. 51 of
the Texas Insurance Code provides the statutory authorization for
group health, accident, hospitalization, etc., insurance.
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Hon. Robert S. Calvert, page 4, (M-408)
This opinion is further written on the assumption that your inquiry
is directed to the payment by the State of premiums on such group life,
health, accident, hospital, etc., insurance policies covering members
of the Legislature and their dependent8 and as to how the same may be
authorized or prohibited in light of the constitutional and statutory
provisions hereinbefore quoted or referred to; and it is so limited.
In holding that the city’s firemen and policemen’s pension plan was
not vioIative of Constitutional Article I, Section 16; Article III, Sections
44, 51-53; Article VIII, Section 3; and Article XVI, Section 6. prohibiting
application of public funds to private purpose8 or gratuitous grants of
such funds to individuals, the Supreme Court of Texas, in 1938, in the
case of Byrd V. City of Dallas, et al, 118 Tex, 28. 6 S. W. 2d 738, held
that the pension concerned was not a gratuity but was for a public pur-
pose and a benefit conferred in consideration of services rendered.
The Court stated:
“It is academic to say the Legislature has power to pass
any law which its wisdom suggeststhat is not forbidden by some
provision8 of the Constitution (federal or state). If the pension
provided for in this Act is a gratuity or a donation to the bene-
ficiary, it is clearly forbidden by the fundamental law. On the
other hand, if it is a part of the compensation of such employee
for service8 rendered to the city, or if it be for a public pur-
pose, then clearly it is a valid exercise of the legislative power.”
The Byrd case was quoted by this office in Attorney General Opinion
WW-731, upholding the constitutionality of Article 237211-z Vernon’s civil
. . ..
Hon. Robert S. Calvert, page 5 (M- 408)
Statutes, which authorized the counties to pay all or a part of the
hospitalization insurance of county official8 and employees.
In Attorney General Opinion No. M-138, in authorizing the comp-
troller to pay certain group insurance premiums for his employees,
this office stated as follows:
“It has been heretofore held by this office that a state
agency may contribute state funds in payment of the pre-
miums of group insurance covering its employees under
the provisions of gubsection (a) of Section 1 of Article
3.51, of the Insurance Code as amended by Senate Bill
294, Acts of the 60th Legislature (Attorney General;8
Opinion No. M-125). Such is a Public governmental pur-
pose benefitting the State. Opinion by the Justices, 30
So. 2d 14 (Ala. Sup. 1947); Bowers v. City of Albuquerque,
27 N. M. 291, 200 P. 421 (1921); Thompson v. City of
Memphis, 147 Term. 658, 251 S. W. 46 (1923); People V.
Standard Accident Ins. Co., 42 Cal. App. 2d 490, 108 PZd
923 (1941).
“We are in agreement with the reasoning of the Supreme
Court of Mississippi in Mayor and Aldermen of City of
Vicksburg v. Crinchlow, 196 Miss. 259, 16 So. 2d 749 (1944),
wherein the statute concerning benefits to eovernmental
employees was upheld as not being gratiuties and as not
extra compensation, but being prospective it serves a
beneficient and useful governmental function in its propen-
sity for stimulating and regarding faithfu1 public services. ”
The question i.1, then presented as to whether payment of such
premiums would constitute a public purpose. If any grounds exist
to support 8 finding that an act was for a’public Purpose”,
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Hon. Robert S. Calvert, page 6 (bf- 408)
then such act must be upheld. On the other hand, if no logic or
reason can show such act to benefit the public, then such finding
must be held not to be supported by any valid evidence.
hr view of the foregoing, we are of the opinion that there exists
no constitutional inhibition as to the use of state funds and their
application to group sickness and accident policy premium payments
for legislators themselves. Such an expenditure se rves a beneficient
and useful public or governmental function in helping to assure maxi-
mum state service and is directly related to the health and well being
of state servants in the performance of their duties. This would
not constitute an expenditure of public funds for private or individual
purposes. The primary purpose or benefit accrues to the state, and
the benefit to the individual is deemed as incidental and as not render-
ing the expenditure invalid or unconstitutional.
We do not interpret such a benefit as additional “salary”. “per
diem” or I’mileage”, as those terms are used in Article III, Section
24 of the Constitution of Texas. This constitutional provision deal8
only with those specific emoluments and operates as a limitation
merely as to them. “galary” has been distinguished from “emOlument”,
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Hon. Robert S. Calvert, page ,7 (M-408)
the latter term being deemed more comprehensive. 67 CJS 326, Officers,
Sec. 89. It is likewise shown that “compensation” includes salary but
may not in all cases mean the same thing, depending upon the context
in which it is used. It is our opinion that the meaning of “salary” as
used in 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 the office. The Constitution does not provide that no other
emolument, perquisite, or benefit may be enjoyed by members of
the legislature. Cf:,.Terrell v. King, 118 Tex. 237, 241, 14 S. W. 2d
786, 791 (1929); State v. Aranson , 314 P 2d 849, 853 (Mont. Sup. 1957t
Spearman v. Williams, 415 P2d 597 (Okla. Sup. 1966).
Although we have answered your first question in the affirmative, we
must answer question No. 2 in the negative. Payment of premium8 for
sickness and accident insurance for dependents of legislators would not
constitute an expenditure for a public purpose but would be an appropria-
tion for private or individual purposes , and in violation of Article III,
Section 51, and Article XVI, Section 6, Constitution of Texas.
We must likewise answer questions 3 and 4 in the negative. Sub-
section (a) of Section 1, Article 3. 51 of the Insurance Code provides
for such payments for members and their dependents but only as to
hospital, surgical and/or medical expense insurance. Subsection (3)
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,,,,
Hon. Robert S. Calvert, page 8 (M-408)
Section I of Article 3.50 contains no language which would authorize
coverage for dependents of either state employees or other state
personnel or officials insofar as life insurance is concerned.
The object of life insurance is to “secure to the family of a person
who is dependent on a salary or the income which ceases with
h&s life,, a support on the death of the insured. “44 CJS 480,
Insurance, Sec. 18. ” Thus, the pecuniary benefits to the
benificiary flowing .therefrom are mainly for a private or indivi-
dual purpose, unrelated to furthering the performance of the state
legislator on the job. Payments for life insurance would, in
our opinion, be unconstitutional, being in violation of Article
III, Section 51, and Article XVI, Section 6, Constitution of
Texas, since not authorized by the Constitution as required
thereby.’
SUMMARY
There is no constitutional prohibition against the
use of state funds to make premium payments on group
health and accident insurance policies for members
of the legislature.
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Hon. Robert S. Calvert, page 9 (M-408)
There is a constitutional prohibition against the use of
state funds for payments of premiums on group life policies
for legislators and the dependents of state legislators and
for group health and accident policies covering the depend-
ents of legislators.
eneral of Texas
Prepared by Roger Tyler
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
George Kelton, Co-Chairman
Alfred Walker
Neil Williams
James S. Swearingen
John H. Banks
W. V. Geppert
Staff Legal Assistant
Hawthorne Phillips
Executive Assistant
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