Untitled Texas Attorney General Opinion

OFFICEOF THE ATTORNEYGENERAL OFTEXAS AUSTIN GROVER SELLERS ATTORNEY~GENERAL Donorable Earry Bengo Crazier Chairman and ijxecutiveDirector Texas Unemployment ComppansationCommission Austin 19, Texas Opinion Do. 04 \ liehave given requesting the'.opinionof l&Is _,. itution of Texas, . ado River 4uthorlty olitic and corporate utbority to exercise conoemini; the subject matter The act creating the ns this language. Ch. 7, The Court3 have reco;gized and so the above section and gencies and political te, performinq Covcrnmontal function3 and ootiry a3 counties and other politiccl sub- Mllaay County :J.Control and I. Dist.' S.M. (2a) 936 and ~a363 0itoa therein; Lo~or Colored0 ?ii y v. Chemical D3nk and Trust co., aecia0a ot yet officially reportad. The Texas &employment CompensationAct, codified 3s Article $i221b,Vernon's Civil Ststutes of Texa3, Acnotatoa; 1925, as amended, provides for each employer subject to the ,2ctto pay tsxes with respect to wages pcid by it for em loymant. Section 19 (c) (5) of thiisAct (llrticle522lb-17 (g! (5)7, hoiwver, prcvidos thnt: . HonorableH3rry Rcnge Croziar - f-age2 Vbe term lemployment'shall not include: "(Al Service performed in the employ of this State, or any politic31 subdivision thereof, or any instrumentalityof this State or its political sub- divisions, ". . ." Since the Lower Colorado River Authority is a Governmental agency,and a ~OlitiC31 subdivisionof this state, and such agencies do not coxe rithin the provisions of the Texas Unemployment Conpensa- : tion Act, It I3 the opinion of this department that this agency Is not subject thereto. As a consequencethereof, it follow that its em- ployeesare not entitled to the benefits thereunder. In resching the.aboveconclusion, viehove not failed to considerths second paragraph of your letter of request In which you direct our attention to cases dealing with remedial or regulatory legislationin which certain Stste,or.governmental instrumentalities uese subject to such remedial laws upon the bnsis that they were of a proprietaryor competitivenature and thus did not come within the ordinaryconstitutionalinhibition of statutory exemption of govern- a3ntal instrumentalities. .’I It Is our contention thet the Legisletura hasaouched in plain and unambiC,uouslanguagewhat employment constitutes and chat doss not corn0within the purview of employment. For us to expand upon this plain language would be encroaching upon the province of the Legislature. This is 'fullybrought forth in the case of Creekmore V. 1ublic Bait Railroad Co.mxission,134 k'6d.(26) 576, certiorari denied by the Sunram Court of the Gnited States. from which we quOt0 In port aa folloG9: "The exclusion provis'ionof Section 3 (d)'of I the Fair Labor St3ndardsAct is couched in plain ona unambiguous 1onguaS.eand should be given effect . as , it is witten. Appellant strongly contends, noVevor, that because of the remedial nature of the ;Sctit ~3s the 1aCislativo Intent to includs vgithinits covor3Se omployeos such as those v!orkinC; for the Fublic Eielt Railroad Cozuniasionfor the City of Xew Orlanns; that in operatinS the rzilroed the City of X~V Orleans acts in a purely proprietary calzicity;and that emRloy33s Of tke railroad should be within the coverage Of the Act. xonorablaEsrry i?engeCrazier - &age 3 *In construingthe Act the duty of the Court is to determineuhat enploysrs and employees are within itscovdrage, not what e,nployess'should' have been covered, for the question of who 'should' be covered is a matter solely nithln the province of the le@slative branch of the govarnment. The langunge of Section 3 (d) being plaintiits meaning oloar, the rsoult reasonable,ne see no reason for resortinS to extraneous conslderationsIn an effort to oonstrue and give to such language another and different mean*. Cf; Helvari V. New YorKTrust co., 292 U. S, 455 5&+ s ct 82 78 L z& 1361; United States v. U& Pao: R.'Co.,'278U: S. 269, 49 S. Ct. 133, 73 L. Ed. 322.” :.. Iieare of the opinion that whether or-not proprietary or :~. p: competitivefunction of a governmelltalinstrumentalityoreagency shouldcome within ths provisions of the Texas Unemployment Corn- FenSation Act are matters solely within the province of the Legislatureof the State of Texas; that the Legislature has by Sectionlg (5) (5) ln plain language axempted political subdivisions end governmentalagencies from the provisions of the Texas Unemploy- rent CompensationAct, whether their funations be aomptitive or proprietary,and we see no reason to resort to other COnsider0tiOns or efforts to construe such language -. and give it a different meaning* Yours very truly . ATTORNZY GlR?iR4L OF T3XAS BY Robert 0. Xooh Assistant XX:ms