Untitled Texas Attorney General Opinion

.’ OFFICE OF THE ATTORNEY GENERAL . ST.~TE OF TEXAS

JOHN CORNYN

September 20,200l

The Honorable Virginia K. Treadwell Opinion No. JC-0414

McCulloch County Attorney

Courthouse, Room 302 Re: Whether a county commissioners court is

Brady, Texas 76825 required to provide health insurance for a

constable (RQ-0384-JC)

Dear Ms. Treadwell:

You ask whether McCulloch County must provide health insurance for the county constable,

an elected official. McCulloch County provides health insurance to full-time officials and

employees, who serve the county at least 120 hours a month, but does not provide it to part-time and

temporary officials and employees. Assuming that the McCulloch County Commissioners Court

has reasonably determined on the basis of his constitutional and statutory duties that the constable

is a part-time official, it is not required to provide him with health insurance.

McCulloch County has a single justice and constable precinct. See TEXASSTATE DIRECTORY

396-97 (44th ed. 2001); see also TEX. CONST.art. V, 8 18. You state that the commissioners court

provides health insurance for all elected officials except for the constable of the county-wide

precinct.’ You inform us that the present constable has requested McCulloch County to provide him

with health insurance, and you ask whether the county is required to do SO.~

A county has statutory authority to provide health insurance to county officers and

employees, including a constable. Article 3 5 l-2 of the Insurance Code provides that a county may

acquire “contracts insuring its officials, employees, and retirees or any class or classes thereof under

a policy or policies of group life, group health, . . . and hospital, surgical, and/or medical expense

insurance.” TEX.INS.CODEANN. art. 3.51-2(a) (Vernon Supp. 2001). Section 157.001ofthe Local

Government Code authorizes the commissioners court of a county to “provide hospitalization

insurance to a county official, deputy, assistant, or other county employee.” TEX.Lot. GOV'T CODE

ANN. 8 157.001 (Vernon 1999). In addition, “[t]he cornmissioners court by rule may provide for

‘Letter from Honorable Ginger K. Treadwell, McCulloch County Attorney, to Honorable John Comyn, Texas

Attorney General (March 7,200l) (on file with Opinion Committee).

=Id.

The Honorable Virginia K. Treadwell - Page 2 (JC-0414)

medical care and hospitalization” for county and district officers if their salaries are paid from the

funds of the county. Id. 3 157.002. See also id. 8 172.004 (Vernon 1999) (county may establish a

risk pool to provide health coverage for county officers, employees, retirees, and their dependants).

None of these provisions require the commissioners court to provide health insurance

coverage to county officers or employees, or to particular classes of officers or employees. In fact,

article 3.5 l-2 of the Insurance Code expressly authorizes a county to insure “its officials, employees,

and retirees or any class or classes thereo$” TEX. INS. CODE ANN. art. 3.51-2(a) (Vernon Supp.

2001) (emphasis added). The commissioners court has discretion under these statutes to establish

reasonable terms and conditions of health insurance coverage for county officers and employees,

subject to judicial review for abuse of discretion. See Tex. Att’y Gen. Op. No. DM-337 (1995) at

5; LO-95-056, at 2 (authority of commissioners court to provide insurance benefits to county officers

and employees). See generally Ector County v. Stringer, 843 S.W.2d 477, 479-80 (Tex. 1992)

(discretion of commissioners court in setting constable’s salaries).

McCulloch County has contracted with an insurance company to provide health insurance

for county officers and employees. The plan in force provides that “[a]11active full-time Employees

working 120 hours per month are eligible to apply for insurance, and that “[plart-time and seasonal

Employees are not eligible for insurance.” Contract with West Texas Ass’n of Counties, at 5.

County officers are covered as employees by this contract. Telephone Conversation with Honorable

Ginger K. Treadwell, McCulloch County Attorney (July 10,200l).

Although a constable is in a sense on duty at all times insofar as he or she has a duty to

preserve the peace within his or her jurisdiction, see TEX. CODE GRIM. PROC. ANN. art. 2.13(a)

(Vernon Supp. 2001); Tex. Att’y Gen. Op. Nos. JM-765 (1987) at 3; JM-140 (1984) at 6, the law

distinguishes between a constable’s on-duty and off-duty time for certain purposes. See TEX. CONST.

art. III, 5 52e (county may pay medical expenses for sheriffs, constables, and other county and

precinct law enforcement officials injured in the course of their official duties); Ervin v. James, 874

S.W.2d 713,716 (Tex. App.-Houston [14thDist.], 1994 writ denied) (to prove affirmative defense

of qualified official immunity, deputy constables had to establish, among other things, that they were

on-duty at time of alleged assault). The legislature has limited participation in the Texas County and

District Retirement System (“the TCDRS”) to local officers and employees who provide a certain

number of hours of service to the political subdivision each year. The statute establishing TCDRS

defines “employee” as

a person, other than a temporary employee, who is certified by

a subdivision as being employed in, or elected or appointed to, a

position or office in the subdivision that normally requires services

from the person for not less than 900 hours a year and for which the

person is compensated by the subdivision.

The Honorable Virginia K. Treadwell - Page 3 (JC-0414)

TEX. GOV’T CODE ANN. 9 841.001(6) (Vernon 1994 & Supp. 2001) (emphasis added). See id.

5 842.101 (a person must be an employee of a political subdivision to become a member of the

retirement system). The actual number of on-duty hours is relevant to determining whether a

constable is eligible for membership in the Texas County and District Retirement System, and we

believe the commissioners court may make reasonable decisions as to the number of on-duty hours

that an elected officer must serve to be eligible for county health insurance.

You state that the constable’s position involves little or no work and that he is not eligible

to participate in the TCDRS because of the required service of 900 hours per year.3 His salary has

been set at $1,273 a year, in contrast to the $24,000 or more earned by other elected county officers.4

The county has determined that the constable serves fewer than 75 hours per month on average and

is not a full-time employee working 120 hours a month within the eligibility provision of the

county’s insurance policy. Presumably you have concluded that the constable is a part-time

employee, who is ineligible for health insurance under the terms of the policy.

Assuming that you have correctly determined that the constable does not serve enough hours

to be eligible for health insurance under the county’s policy, the county is not required to provide

such insurance. The number of hours that the constable serves is a question of fact to be answered

by the commissioners court in the exercise of reasonable discretion, subject to judicial review for

abuse of discretion. See generaZZy Tex. Att’y Gen. Op. No. JC-0389 (2001) at 5. It cannot be

answered in the opinion process. See, e.g., Tex. Att’y Gen. Op. Nos. JC-0328 (2000) at 6; JC-0152

(1999) at 12; JC-0020 at 2; DM-98 (1992) at 3; H-56 (1973) at 3; M-187 (1968) at 3.

However, your decision as to the hours served must be a reasonable decision, based on the

correct legal standard for determining the constable’s duties. The commissioners court may not

“attempt to restrict or abolish a constitutionally established office by refusing to reasonably

compensate the holder of such office,” nor may it “attempt to abolish or restrict the office of

constable by refusing to allow or by preventing the elected official from performing those duties

required of him.” Vondy v. Comm ‘rs Court of Uvalde County, 714 S.W.2d 417,422 (Tex. App.-San

Antonio, 1986, writ ref d n.r.e.); see Tex. Att’y Gen. Op. No. JC-0389 (2001) at 4. A constable’s

salary must reflect his or her statutory and constitutional duties, including the duty to serve process,

even though that duty may actually be performed by the sheriffs office. See Tex. Att’y Gen. Op.

No. JC-0389 (2001) at 4 (citing Vondy, 714 S.W.2d at 425); see also TEX. Lot. GOV’T CODE ANN.

$0 85.02 1(a), 86.02 1 (Vernon Supp. 2001) (sheriff and constable shall execute and return process

that is directed to the constable or sheriff by a lawful officer); TEX. R. CIV. P. 15 (Vernon 1979)

(writs and process shall be directed to any sheriff or constable within the state); Tex. Att’y Gen. Op.

3Brief from Honorable Ginger K. Treadwell, McCulloch County Attorney, to Honorable John Comyn, Texas

Attorney General (May 16,200l) (on file with Opinion Committee).

41d.

The Honorable Virginia K. Treadwell - Page 4 (JC-0414)

No. H-595 (1975) (sheriff does not have exclusive authority to execute process). Assuming that the

McCulloch County Commissioners Court has applied the correct legal standard and has reasonably

determined that the constable is a part-time official, it is not required nor allowed by the terms of the

county’s policy to provide him health insurance.

The Honorable Virginia K. Treadwell - Page 5 (JC-0414)

SUMMARY

McCulloch County provides health insurance to full-time

officials and employees who serve the county at least 120 hours a

month, but the county does not provide it to part-time and temporary

officials and employees. Assuming that the McCulloch County

Cornrnissioners Court has reasonably determined on the basis of the

constable’s constitutional and statutory duties that the constable

serves the county part time, it is not required to provide him with

health insurance.

Y urs v tru ,

4gG!+-J-

JOHN CORNYN

Attorney General of Texas

HOWARD G. BALDWIN, JR.

First Assistant Attorney General

NANCY FULLER

Deputy Attorney General - General Counsel

SUSAN D. GUSKY

Chair, Opinion Committee

Susan L. Garrison

Assistant Attorney General, Opinion Committee