The opinion
THEA~TORNEY GENERAL
OFTEXAS
Hon. S. Perrs Brown Opinion No. W-485
Chairman and-Executive ,Director
Texas Employment Commission Re: Whether the Texas
Brown Building Employment Commission
Austin, Texas can enter into a valid
agreement with the
Federal Government to
pay extended benefits
under the (Federal)
Temporary Unemployment
Compensation Act of
1958 without Legislative
Dear Mr. Brown: authorization.
You have requested the opinion of this office on the follow-
ing questions concernin the (Federal) Temporary Unemployment
Compensation Act of 195% :
1. Can the Texas Employment Commission
enter into a valid agreement with the
Federal Government to pay benefits under
this Act without legislative authorization?
2. Can the Texas Employment Commission
pay benefits for a number of weeks in
excess of the maximum number of weeks
specified in the Texas Unemployment
Compensation Act?
The purpose of the (Federal) Temporary Unemployment
Compensation Actof 1958 is to provide temporary additional
unemployment compensation to individuals who have exhausted
their rights under the unemployment compensation laws of the
State and the Federal Government.
The 1958 Act is applicable only in those states that have entered
into an Agreement to administer the Act. The funds are furnished
by the Federal Government and there is no obligation on the State
to repay the funds. However, the funds are not an outright grant.
Hon. S. Perry Bro$n, Page 2 @W&485)
The Federal Government merely finances the program, and unless
the amounts expended have been restored by the States to the
United States Treasury by January 1, 1963, the Federal unemploy-
ment tax credit allowed employers in the State will be reduced as
provided in Section 104 of the Act.
The 1958 Act provides, in part, as follows:
"Sec. 101 (a) (1) Payment of temporary
unemployment compensation under this'Act
shall be made, ,for any week of unemploy-
ment which begins on or after the fifteenth
day after the date of the enactment of this
Act and before April 1, 1959, to individuals
who have, after June 30, 1957 (or after such
later date as ma be specified pursuant to I
section 102 (b) 5, exhausted (within the
meaning prescribed by the Secretary by regu-
lations) all rights under the unemployment
compensation laws referred to in paragraph
(3) and who have no rights to unemployment
compensation with respect to such week under
any such law or under any other Federal or
State unemployment compensation law.
"(2) Except as provided in Section 103,
payment of temporary unemployment compen-
sation under this Act shall be made only
pursuant to an agreement entered into
under section 102 and only for weeks of
unemployment beginning after the date on
which the agreement is entered into.
“(3) The unemployment compensation laws
referred to in this paragraph are:
unemployment compensation
X)02 State .
"(B) Title XV of the Social
Security Act as amended (42 U.S.C.
1361 et seq.I.
"(C) Title IV of the'~V'eteranS'
Hon. S. Perry Brown, Page 3 (~~-485)
Readjustment Assistance Act of
19.52,as amended (38 U.S.C. 991
et seq.).
11
. . .
"Sec. 102. (a) The Secretary (of Labor) is
authorized on behalf of the United States to
enter into an agreement with a State, or with
the agency administering the unemployment
compensation law of such State, under which
such State agency -
"(1) will make, as agent of the
United States, payments of temporary
unemployment compensation to the
individuals referred to in section
101 on the basis provided in this
Act; and
“(2) will otherwise cooperate with
the Secretary and with other State
agencies in making payments of temporary
unemployment compensation under this Act.
"(b) If the State so requests, the agree-
ment entered into under this section shall
specify, inlieu of June 30, 1957, such
later date as the State may request. In
any such case, an exhaustion under the
unemployment compensation law of such
State shall not be taken into account for
the purposes of this Act unless it occurred
after such later date.
II. . .
"Sec. 104 (a) The total credits allowed
under section 3302 c) of the Federal Un-
employment Tax Act I26 U.S.C. 3302 (c) ) to
taxpayers with respect to wages attributable
to a State for the taxable year beginning on
January 1, 1963, and for each taxable year
thereafter, shall be reduced in the same
Hon. S. Perry Brown, Page 4 (~~-485)
manner as that provided by section 3302 (c)
(2) of the Federal Unemployment Tax Act for
the repayment of advances made under title
XII of the Social Security Act, as amended
(42 U.S.C. 1321 et seq.), unless or until
the Secretary of the Treasury finds that by
December 1 of the taxable year there have
been restored to the Treasury the amounts
of temporary unemployment compensation paid
in the State under this Act (except amounts
paid to individuals who exhausted their un-
employment compensation under title XV of the
Social Security Act and title IV of the Vet-
erans' Readjustment Assistance Act of 1952
prior to their making their first claims
under this Act), the amount of costs in-
curred in the administration of this Act
with respect to the State, and the amount
estimated by the Secretary of Labor as
the State's proportionate share of other
costs incurred in the administration of
this Act."
The first question to be determined is whether the Texas
Employment Commission can enter into the Agreement required by
Section 102 of the 1958 Act.
The Federal Government is presently engaged in two programs
in this State under contracts with the Texas Employment Commission.
These programs are the Title XV of the Social Security Act pro-
gram and the Tit)e IV of the Veterans 1 Readjustment Assistance
Act of 1952 program. The funds disbursed by the Texas Employment
Commission under each of these two programs are outright grants
of Federal money and no repayment of such funds is involved. The
Texas Employment Commission is merely acting as the disbursing
agency for the Federal Government. Therefore, neither of these
two programs is comparable to the program required by the 1958 Act.
The Texas Unemployment Compensation Act is codified as
Article 522113V.C.S. Article 5221b-5(a) provides that:
"Contributions shall accrue and become
payable by each employer for each calendar
year, or portion thereof, in which he is
Hon. S. Perry Brown, Page 5 (~~-485)
subject to this Act, with respect to wages
for employment paid during such calendar
year, or portion thereof."
The Texas Act further states that the contribution rate
for each employer shall be in accordance with the contribution
rate table set forth in said Act. Article 5221b+(c) (6) pro-
vides that:
0. .no employer shall be required to
pay'contributions at a rate greater than
two and seven-tenths per cent (2.7s) nor
permitted to pay contributions at a rate
less than one-tenth of one per cent (l/10
of l$)."
Article 5221b-l(d) provides that:
.The maximum total amount of benefits
payable to any eligible individual during
any benefit year shall not exceed whichever
is the lesser of:
(1) Twenty-four (24) times his benefit
amount, or
(2) One-fourth (t) of such wage credits."
Article 5221b-16 provides that:
"Benefits shall be deemed to be due and
payable under this Act only to the extent
provided in this Act and to the extent that
moneys are available therefor to the credit
of the Unemployment Compensation Fund, and
neither the State nor the Commission shall
be liable for any amount in excess of such
sums."
Article 5221b-9, sets forth the administrative duties and
powers of the Texas Employment Commission and provides for State -
Federal cooperation in the furnishing of information and reports
and in the administration of the Act.
Hon. S. Perry Brown, Page 6 (~~-485)
Article 5221b-15a pertains to "Reciprocal arrangements".
Section (a) of this Article, ,provldes for reciprocal arrange-
ments regarding individuals working for a single employing
unit in several states.
Section (b) provides that:
"(b) The Commission is also authorized
to enter into arrangements with the appropri-
ate agencies of other States or of the
Federal Government whereby potential rights
to benefits accumulated under the unemploy-
ment compensation laws of one or more States
or under one or more such laws of the Federal
Government, or both, may constitute the basis
for the payment of benefits through a single
appropriate agency under terms which the Com-
mission finds will be fairand reasonable as
to all affected interests and will not result
in any substantial loss to ,the fund."
This Section of the Texas Act is commonly called the "Com-
bined Wage Agreement Section" by the Texas Employment Commission.
The Section means that employees who have potential rights to
benefits under the unemployment compensation laws of one or more
states or under one or more such laws of the Federal Government,
or both, but not having enough benefit rights in any one parti-
cular State or under the Federal Government to qualify for bene-
fit payments, may combine such benefit rights and thereby qualify
for benefit payments through one single agency. Usually the pay-
ments are made by the agency in the state where the largest benefit
credits were accumulated. We are informed by the Insurance Divi-
sion (formerly the Benefit Division) of the Texas Employment Commis-
sion that the Texas Employment Commission processes an average of
125 such reciprocal claims a month. Whereas about 7,000 initial
ordinary benefit claims are currently being processed each week by
the Texas Employment Commission.
Section (c) provides for reimbursements to the agency making
the benefit payments under the above Section (b).
Section (d) authorizes the Commission to enter into reciprocal
arrangements regarding individuals performing services on vessels
engaged in interstate or foreign commerce.
L
Hon. S. Perry Brown, Page 7 (WW-485)
It is a well settled rule of law that statutory bodies have
only such authority as is expressly given to them by law. The
Texas Employment Commission being a creature of the statutes can
exercise only such authority as is conferred upon it by law in
clear and express language.
In Corzelius v. Railroad Commission, et al. 182 SW 2d 412
(rehearing denied), (Tex. Clv. App.), the Court said:
.The general rule is well settled that
boards or commissions which are creatures of
the statutes, can exercise only such authority
as is conferred upon them by law in clear and
express language and that authority will not
be construed as being conferred by implication.
The latest pronouncement of this rule of con-
struction appears in Board of Ins. Com'rs. v.
Guardian Life Ins. Co., 180 SW 2d 906. See
also Humble Oil & Refining Co. v. Railroad Comm.,
133 Tex. 330, 128 SW 2d 9; Ortiz oil co.,v.
Railroad Comm., Tex. Civ. App., 62 SW 2d 376;
Commercial Standard Ins. Co. v. Board of Ins.
Com'rs., Tex. Clv. App., 34 SW 2d 343, writ
refused. It Is equally well settled, however,
that when a statute Imposes a mandatory duty
upon a governmental agency to carry out the
express and specifically defined purposes and
objectives stated in the law, such statute
carries with it by necessary implication the
authority to do whatever is reasonably neces-
sary to effectuate the legislative mandate and
purpose.'
In State, et al. v. Kenyon, Inc. 153 SW 2d 195, (Tex. Civ.
App. 1941, error ref.), the Court held that the Texas Employment
Commission could not, under Its rule making power, enact a rule
counting officers of a corporation emnloyees in determining
whether the corporation is subject to the Texas Unemployment Com-
pensation Act, irrespective of whether such officers receive
remuneration. The Court used the following language:
"The Act does not authorize the Commission
to make any rule or regulation inconsistent
with it, but, to the contrary, only authorizes
the Commission to administer the Act and to
c‘:;::’
Hon. S. Perry Brown, Page 8 (WW-485)
make rules and regulations necessary and
suitable to that end. It requires no cita-
tion of authorities to sustain the proposi-
tion that under constitutional law the
legislature cannot delegate authority to
the Commission to make rules or regulations
inconsistent with the Act."
There Is no provision in the Texas Unemployment Compensa-
tion Act, either express or Implied, which would authorize the
Commission to enter into a valid agreement with the Federal
Government to pay benefits under the (Federal) Temporary Unemploy-
ment Compensation Act of 1958. Therefore, It is our opinion
that the Texas Employment Commission cannot enter Into a valid
agreement with the Federal Government to pay benefits under the
Temporary Unemployment Compensation Act of 1958 without legisls-
tive authorization.
The answer to your second question necessitates an examina-
tion of Article 522113-1(d)of the Texas Act, hereinabove set
forth. This Article sets out the maximum total amount of benefits
payable to any eligible Individual during any benefit year. We
are of the opinion that this provision pertains only to benefit
payments mad,eunder the Texas Act. Therefore, it is our opinion
that the Texas Employment Commission cannot pay benefits under the
Texas Unemployment Compensation Act in excess of the maximum total
amount of benefits payable under the Act.
SUMMARY
The Texas Employment Commission is created
by statute and can exercise only such
authority as is conferred upon it by law.
The Commission cannot enter into an agree-
ment with the Federal Government to
extended benefits under the (Federalpacem-
porary Unemployment Compensation Act of
1958 without legislative authorization.
The Texas Employment Commission cannot pay
benefits under the Texas Unemployment
Compensation Act in excess of the maximum
.. -
Hon. S. Perry Brown, Page 9 (~~-485)
total amount of benefits payable under
the Act.
Very truly yours,
WILL WILSON
Attorney General of Texas
FCJG:jc Assistant
APPROVED:
OPINION COMMITTEE
Geo. P. Blackburn, Chadman
J. C. Davis
Jack Price
Ray Loftln
John Reeves
REVIEWED FOR THE ATTORNEY GENERAL
BY: W. V. Geppert