;r OFFICE OF THE ATTORNEY GENERAL . STATE OF TEXAS

   JOHN     CORNYN




                                                May 23,200l



The Honorable Jack M. Skeen, Jr.                         Opinion No. JC-0383
Smith County Criminal District Attorney
100 North Broadway, 400                                  Re:     Whether, without violating article III,
Tyler, Texas 75702                                       section 53 of the Texas Constitution, a county
                                                         may pay group-health-insurance     premiums for
                                                         retirees for whom, at the time they retired, the
                                                         county did not provide such benefits, and related
                                                         questions (RQ-0334-JC)


Dear Mr. Skeen:

          Under article III, section 53 of the Texas Constitution, a retired county employee generally
may not receive a new or increased benefit from the county if the county did not provide it when the
employee retired. See TEX. CONST. art. III, 5 53; Tex. Att’y Gen. Op. No. JC-0297 (2000) at 4.
Since October 1,1996, Smith County (the “county”) has paid group-health-insurance         premiums for
its retired employees, including nine (the “nine retirees”) who retired when the county provided that
a retiree could continue to participate, at the retiree’s own expense, in the county’s health-insurance
plan for a period consistent with federal law.’ See Consolidated Omnibus Budget Reconciliation Act
of 1985, Pub. L. No. 99-272, 100 Stat. 82 (1986) (continued health-insurance coverage provisions
are codified at 29 U.S.C. 80 1161-69 and 42 U.K.            $5 300bb-1 to -8 (1994 & Supp. IV 1998))
[hereinafter COBRA]. We assume that the nine retirees have provided no additional consideration
in return for the county’s payment of health-insurance premiums. You ask whether, under article
III, section 53 of the Texas Constitution, the county may pay the nine retirees’ health-insurance
premiums. See Request Letter, sup-a note 1, at 2; TEX. CONST. art. III, 4 53. Because the county
did not provide for such a benefit when the nine retired, it may not pay the premiums.

         You ask two other related questions. You question whether the county must ask the nine
retirees to reimburse the county for the premiums it has paid since October 1, 1996. See Request
Letter, supra note 1, at 3. The county may, but it need not. You ask last whether the county may
invite the nine retirees to participate in the county’s group-health-insurance policy if the retirees pay
their own premiums. See id. We conclude that those who retired between January 1, 1994 and
October 1, 1996 may be entitled to participate in accordance with chapter 175 of the Local



        ‘See Letter from Honorable Jack M. Skeen, Jr., Smith County Criminal District Attorney, to Honorable
John Comyn, Texas Attorney General (Dec. 28,200O) (on file with Opinion Committee) [hereinafter Request Letter].
The Honorable    Jack M. Skeen, Jr. - Page 2       (JC-0383)




Government Code. See TEX. LOC. GOV'T CODEANN. ch. 175 (Vernon 1999). Those who retired
before January 1,1994 may not participate beyond the period required by COBRA, however.

        You provide these facts:

                         On September 9, 1996, the Smith County Commissioners
                Court approved a policy to provide group health insurance coverage
                for future retirees and to pay 100% of the premiums for these retirees.
                The effective date of this policy was October 1, 1996. Prior to
                October 1, 1996, Smith County retirees were offered continued . . .
                coverage     [under COBRA]        at their own expense.        As of
                October 1, 1996, there were nine . . . county retirees on COBRA
                paying their own premiums.          The Commissioners    Court opted
                to include these 9 retirees in the new policy. Thus, the county
                included these 9 retired individuals in its group health policy and
                began paying the insurance premiums for these 9 retirees beginning
                October 1, 1996. The county has continued paying 100% of these
                premiums to [the] present.

Request Letter, supra note 1, at l-2. You further stipulate that, “[a]t the time these 9 individuals
retired, the [county] policies governing their retirement plan did not provide for the possibility of
the county including them in [the] group plan or paying any portion of their health insurance
premiums. Rather, [when] these 9 persons retired, the policy of the county was that retirees would
pay 100% of their premiums for continued COBRA coverage.” Id. at 3. The dates of retirement for
the nine range from August 1992 through July 1996. Telephone Conversation with Lee Porter,
Smith County Assistant District Attorney (Mar. 12,200l).

         Under article III, section 53 of the Texas Constitution, a county generally may not increase
a former employee’s retirement benefits beyond those for which the county provided at the time of
retirement. Article III, section 53 expressly prohibits the legislature from authorizing a county to
grant “any extra compensation, fee or allowance to a public officer, agent, servant or contractor, after
[a] service has been rendered, . . . , and performed in whole or in part.” TEX. CONST.art. III, 8 53.

         Increasing retirement benefits is constitutionally permissible in two circumstances. First, a
county may increase a retiree’s benefits if the retiree provides additional consideration. See City of
Greenville v. Emerson, 740 S.W.2d 10, 13 (Tex. App.-Dallas 1987, no writ) (determining that
“contract” that requires city to pay “additional sums of money for services already rendered and
benefits already paid . . . for no additional consideration” contravenes article III, section 53); accord
Tex. Att’y Gen. Op. No. JC-0297 (2000) at 5. Second, a county may increase a retiree’s benefits if,
at the time of the retiree’s retirement, the county’s retirement policy or applicable federal or state law
“provided for the possibility of additional payments.” Tex. Att’y Gen. Op. No. JC-0297 (2000) at
5. For example, the board of trustees of a fire fighters’ retirement benefits plan may increase
retirement benefits for current retirees without violating article III, section 53 because the applicable
The Honorable   Jack M. Skeen, Jr. - Page 3       (JC-0383)




statute explicitly permitted the board to change retirement benefits for those already receiving
monthly retirement benefits. See Tex. Att’y Gen. LO-97-l 13, at 4.

         Neither circumstance appears present here. First, we assume that, to this point, the nine
retirees have provided no additional consideration for the county’s payment of health-insurance
premiums.     Nothing in the information you have provided suggests that they have done so. See
generally Request Letter, supra note 1. Second, at the time of the nine retirees’ retirements, nothing
in the county policy or in applicable federal or state law provided for a possibility of increased
health-insurance benefits. At that time, county policy required retirees to pay 100% of their health-
insurance premiums for continued coverage under COBRA. See Request Letter, supra note 1, at 3.
Under COBRA, a retiree may continue, for eighteen to thirty-six months after the date of retirement,
health-insurance coverage through the former employer. See 29 U.S.C. $5 1161 - 1163; 42 U.S.C.
$8 300bb-1 through -3. But COBRA “does not require or authorize a county to pay any part of a
county retiree’s health insurance premiums.”       Tex. Att’y Gen. Op. No. JC-0297 (2000) at 3.
Similarly, no state law that requires or authorizes the county to pay the nine retirees’ health-
insurance premiums provided for increased benefits. Article 3.5 l-2 of the Insurance Code, which
authorizes a county to procure group-health-insurance    contracts covering retired county employees
and to pay all or any portion of the premiums for retirees, see TEX. INS.CODEANN. art. 3.51-2(a),
(b) (Vernon Supp. 2000); Tex. Att’y Gen. Op. No. JC-0297 (2000) at 2, does not authorize a county
to pay group-health-insurance     premiums for a retiree if the payments constitute unconstitutional
retroactive compensation.     See Tex. Att’y Gen. Op. No. JC-0297 (2000) at 2. Section 157.002 of
the Local Government Code “authorizes a commissioners court to provide various kinds of insurance
to retirees,” id., but the insurance must be provided “by rule” and “included in the person’s
employment contract.” TEX. Lot. GOV’T CODEANN. 8 157.002 (Vernon 1999). Because you
specify that the county did not provide for premium-paid health insurance for the nine retirees at the
time they retired, see Request Letter, supra note 1, at 3, section 157.002 does not apply. Last,
although chapter 175 of the Local Government Code, which entitles a person who is employed by
a county with a population of 75,000 or .more to, upon retirement, continue participating in the
county’s health-insurance program at the retiree’s expense, appears to apply to the county, it does
not authorize the county to pay retirees’ health-insurance premiums. See TEX. LOC. GOV’T CODE
ANN. $8 175.001, .002(a) (V emon 1999); 1 Bureau of the Census, U.S. Dep’t of Commerce, 1990
Census of Population, General Population Characteristics: Texas 4 (1992) (Smith County population
is 15 1,309) (174,706 according to 2000 census, available at http://www.census.gov/);       see infra at
4-5 (discussing further chapter 175). But see TEX.LOC.GOV’T CODEANN. 8 9 175.006, .007 (Vernon
1999) (listing matters chapter 175 does not affect and exempting certain counties and municipalities
from chapter 175).

          We therefore conclude that the county may not pay health-insurance premiums for the nine
retirees without violating article III, section 53 of the Texas Constitution. We do not understand the
nine retirees to have provided any additional consideration for the increased benefit. Additionally,
neither county policy, nor federal or state law require or provide for the possibility of the increased
benefits.
The Honorable    Jack M. Skeen, Jr. - Page 4       (JC-0383)




       You ask second whether the county must ask the nine retirees to reimburse the county for
premiums the county paid in contravention of article III, section 53 of the Texas Constitution. The
county may, but it is not required to do so.

          A governmental entity, in the exercise of its discretion, may seek to recover a payment that
its agent has erroneously paid to a private party from public funds. See City of Taylor v. Hodges,
 186 S.W.2d 61,63 (Tex. 1945); Tex. Att’y Gen. Op. No. JM-910 (1988) at 7. While the county may
 seek reimbursement, we found no case law or attorney general opinion stating that the governmental
body must seek reimbursement. See United States v. Paddock, 178 F.2d 394’398-99 (5th Cir. 1949),
cert. denied, 370 U.S. 8 13 (1950) (discussing rule as articulated by several federal and state courts);
Hodges, 186 S.W.2d at 63; Cameron County v. Fox, 2 S.W.2d 433,436 (Tex. Comm’n App. 1928,
judgm’t adopted) (stating that amount wrongly paid “may be recovered in an action by the county”);
 Gould v. City of El Paso, 440 S.W.2d 696, 699 (Tex. Civ. App.-El Paso 1969, writ ref d n.r.e.)
(noting exception to general rule “where payment was mistakenly made out of the public treasury”);
Nunn- Warren Publ’g Co. v. Hutchinson County, 45 S.W.2d 65 1, 653 (Tex. Civ. App.-Amarillo
 1932, writ ref d) (“Although the payment to the defendant was made by the county voluntarily, such
payment was without lawful authority, and the action of the auditor, the commissioners[] court, and
the county in said transaction was illegal and void and the amount paid to and received by
the defendant is recoverable in this action.“) (citing Fox, 2 S.W.2d 433); Tex. Att’y Gen. Op. Nos.
JM-910 (1988) at 7, MW-93 (1979) at 2. Thus, a county may exercise reasonable discretion as to
whether to seek reimbursement in a particular case. See Tex. Att’y Gen. Op. No. JM-910 (1988) at
 7. In making its decision, the county commissioners court might consider, for instance, “the amount
of funds to be reimbursed, the ease of collection, and the legal and other costs incident to collection.”
Id. (citing Tex. Att’y Gen. Op. No. MW-93 (1979) at 3). The county also should weigh the notion
that the commissioners court may have authorized unconstitutional payments from funds belonging
to the public. See Hodges, 186 S.W.2d at 63; Paddock, 178 F.2d at 398-99 (quoting City of TayZor
v. Hodges).

         We address your remaining question: whether the county constitutionally may “continue to
include these 9 retirees under [the county’s] group insurance policy if the retirees pay all of the
premiums?” Request Letter, supra note 1, at 3. The answer to this question is complicated by the
fact that some of the nine retirees retired before chapter 175 of the Local Government Code became
effective, on January 1, 1994. Telephone Conversation with Lee Porter, Smith County Assistant
District Attorney (Mar. 12,200l); see also Act of May 28, 1993,73d Leg., R.S., ch. 663, 9 2(a),
1993 Tex. Gen. Laws 2460, 2462 (stating effective date of what is now chapter 175 to those
who retire from county employment “on or after January 1,1994”). For those who retired on or after
January 1,1994, when chapter 175 became effective, and before October 1, 1996, when the county
policy became effective, we apply chapter 175. But the county has no authority to invite those who
retired before January 1, 1994 to participate in the program.

        We conclude that a person who retired on or after January 1,1994 but before October 1,1996
may participate in Smith County’s group-health-insurance    program at the retiree’s expense, but only
in accordance with chapter 175 of the Local Government Code. Chapter 175 applies to a person who
The Honorable    Jack M. Skeen, Jr. - Page 5       (JC-0383)




“retires from county employment in a county with a population of 75,000 or more” and who “is
entitled to receive retirement benefits from a county . . . retirement plan.” TEX. LOC. GOV’T CODE
ANN. 6 175.001 (Vernon 1999). Under section 175.002, a person to whom the chapter applies has
a limited right to purchase continued health benefits:

                         0a       A person to whom this chapter applies is entitled to
                 purchase continued health benefits coverage for the person and the
                 person’s dependents as provided by this chapter unless the person is
                 eligible for group health benefits coverage through another employer.
                 The coverage shall be provided under the group health insurance plan
                 or group health coverage plan provided by or through the employing
                 county. . . to its employees.

                         @I      To receive continued coverage under this chapter, the
                 person must inform the employing county . . . , not later than the day
                 on which the person retires from the county or municipality, that the
                 person elects to continue coverage.

                         0C      Ifthe person elects to continue coverage for the person
                 and on any subsequent date elects to discontinue such coverage, the
                 person is no longer eligible for coverage under this chapter.

Id. 8 175.002(a) - (c). A county that is subject to chapter 175 has a duty to inform a retiring
employee of his or her right to continued health coverage:

                          Acounty..    . shall provide written notice to a person to whom
                 this chapter may apply of the person’s rights under this chapter not
                 later than the date the person retires from the county or municipality.
                 A county . . . may fulfill its requirements under this section by
                 placing the written notice required by this section in a personnel
                 manual or employee handbook that is available to all employees.

Id. 8 175.005.

          Under chapter 175, a person who has retired from county employment since January 1,1994
is entitled to participate in the county’s group-health-insurance    coverage if he or she informed the
county of his or her election to participate “not later than the day on which the person retire[d] from
the county.” Id. 8 175.002(b). Of course, the county had a duty to notify the retiring employee of
his or her entitlement in accordance with section 175.005. See id. § 175.005. We assume that none
of the persons who retired between January 1,1994 and October 1,1996 is eligible for group health-
benefits coverage through another employer. See id. 8 175.002(a). We also assume that neither of
the exemptions listed in section 175.007 apply to Smith County. See id. 5 175.007 (exempting
certain counties that provide health-benefits coverage through self-insured plan or plan authorized
The Honorable Jack M. Skeen, Jr. - Page 6      (Jc-0383)




under chapter 172, Local Government Code, and counties that provide coverage “substantially
similar to or better than the coverage” chapter 175 requires).

        Those who retired before January 1,1994 may not participate in the county’s group-health-
insurance program, even at their own expense. As we have stated, the county did not provide for
paying these retirees’ health-insurance premiums under section 157.002 of the Local Government
Code at the time they retired. See TEX. LOC. GOV’T CODEANN. 8 157.002(a)(4) (Vernon 1999);
supra at 3 (determining that section 157.002 does not apply); see also Act of May 18, 1989, 71 st
Leg., R.S., ch. 872, $9 2,3,1989 Tex. Gen. Laws 3862,3863 (adopting section 157.002(a)(4), Local
Government Code, and noting effective date of June 14, 1989). Additionally, chapter 175 was not
yet in effect. Consequently, the county had no authority to permit retirees to participate in the
county’s group-health-insurance     program beyond the period required by COBRA. See Act of May
28, 1993, 73d Leg., R.S., ch. 663, 8 2(a), 1993 Tex. Gen. Laws 2460, 2462 (setting effective date
of what is now chapter 175).
The Honorable   Jack M. Skeen, Jr. - Page 7       (JC-0383)




                                         SUMMARY

                         In light of article III, section 53 of the Texas Constitution, a
                county may not pay group-health-insurance          premiums for a retired
                employee absent additional consideration from the retired employee,
                if at the time he or she retired, the county did not provide for such
                coverage nor for the possibility of such coverage. See TEX. CONST.
                art. III, 4 53. The county may, but is not required to, seek
                reimbursement from a retired employee for whom the county paid
                premiums in violation of article III, section 53. With respect to a
                person who retired on or after January 1, 1994, that person may be
                entitled to participate in the county’s health-insurance program in
                accordance with chapter 175. See TEX. LOC. GOV'T CODEANN. ch.
                175 (Vernon 1999). But the county may not permit a person who
                retired fi-om employment with the county before January 1, 1994 to
                participate beyond the period required by federal law, even if the
                retiree pays the premiums.




                                                JO-HN    CORNYN
                                                Attorney General of Texas



ANDY TAYLOR
First Assistant Attorney General

SUSAN D. GUSKY
Chair, Opinion Committee

Kymberly K. Oltrogge
Assistant Attorney General - Opinion Committee