Suspended Employee’s Pay
Re: Whether a commissioners court or another elected official may continue to pay compensation to a suspended employee (RQ-0286-GA).
Submitted by David T. Garcia
Brooks County Attorney
Summary, Opinion GA-322: Pursuant to section 152.011 of the Local Government Code, the county commissioners court sets the salary of county employees when it adopts the county budget. Having provided county officers with the resource of the established salary, the commissioners court is precluded from interfering with the county officer’s use of that resource. Because of their significant “sphere of authority,” county officers have the discretion to suspend their deputies and employees as well as the discretion to continue to compensate the deputies or employees they suspend.
A county official’s discretion is bounded by the Texas Constitution. As a result, the county official must determine that a public purpose is served by the paid suspension and place sufficient controls on the compensation to ensure the public purpose is carried out to comply with article III, section 52 of the Texas Constitution. Where there is no preexisting policy constituting a term of employment that provides for suspension with pay to county employees, paid suspension is gratuitous extra compensation prohibited by article III, section 53 of the Texas Constitution. Therefore, a county official does not have the authority to suspend an employee with pay unless the officer has previously adopted a policy allowing for paid suspension.
Open Meetings Act
Re: Proper construction of Government Code section 551.143 and whether it is unconstitutionally vague (RQ-0291-GA).
Submitted by Tom Maness
Jefferson County Criminal District Attorney
Summary, Opinion No. GA-326: Members of a governmental body who knowingly conspire to gather in numbers that do not physically constitute a quorum at any one time but who through successive gatherings secretly discuss a public matter with a quorum of that body violate section 551.143 of the Open Meetings Act. This section is not on its face void for vagueness.
Self-Funded Insurance Plan
Re: Whether a county’s self-funded medical insurance plan is subject to certain provisions of the Texas Insurance Code (RQ-0296-GA).
Submitted by Mike Stafford
Harris County Attorney
Summary, Opinion No. GA-327: Pursuant to the state’s continuing statutory revision program, insurance code provisions of the Revised Civil Statutes recently have been codified into the Texas Insurance Code. Though the revision program is nonsubstantive, the Texas Supreme Court, in Fleming Foods of Texas, Inc. v. Rylander, directs that when specific provisions of a nonsubstantive codification are direct, unambiguous, and cannot be reconciled with prior law, the codification rather than the prior law must be given effect. This change from the civil statutes to the Insurance Code is the context in which we answer Harris County’s questions. Harris County’s self-funded benefit plan is not a “health benefit plan” as defined by Chapter 1501 of the Texas Insurance Code. Chapter 157 of the Texas Local Government Code, including section 157.101, is not another insurance law of this state as contemplated by Insurance Code section 1501.002(6) but is instead legislative authority for counties to provide health benefits to employees and their dependents. Thus, Harris County is not a health benefit plan issuer under Insurance Code section 1501.002(6).
Because the Harris County Plan is not a health benefit plan and Harris County is not a health benefit plan issuer, the plan is not subject to the limiting age contained in section 1503.609 of the Insurance Code. Similarly, because the plan is not a health benefit plan and the county is not a health benefit plan issuer, the provisions of section 1503.003(a), prohibiting the coverage of a covered county employee’s child from being conditioned on the child’s full-time enrollment at an educational institution, do not apply to the plan. Section 1201.062, Insurance Code, expressly applies to self-funded plans like the Harris County Plan. Therefore, the plan must cover, when it provides coverage for a child of a covered county employee, unmarried grandchildren who are younger than 25 and who are federal income tax dependents of the covered employee. The plan must also cover children for whom the covered employee must provide medical support under an order issued pursuant to Chapter 154, Texas Family Code. Because the Harris County Plan is generally not subject to chapter 1201 of the Insurance Code, it is not required by sections 1201.063 and 1201.064 to provide coverage for grandchildren and stepchildren who do not reside with the covered county employee, provided they are not otherwise entitled to coverage under section 1201.062(a)(1) or (2) of the Insurance Code. For the same reasons, the plan is not prohibited by these provisions from charging different premiums for grandchildren and stepchildren who are not the adopted or natural child of the covered employee.