Untitled Texas Attorney General Opinion ( 1981 )

The Attorney General of Texas
December 17, 1981
MARK WHITE
Attorney General
Supreme Court Bullding Mr. Evans N. Wentz Opinion No. ~~-409
P. 0. Box 12548 Executive Director
Austin, TX. 70711 State Commission for the Blind Re: Whether the Commission
512/475-2501
P. 0. Box 12866 for the Blind may maintain
Telex 9101874-1367
Telecopier 51214750266
Austin, Texas 78711 deferred compensation program
for licensed vendors
1607 Main St., Suite 1400 Dear Mr. Wentz:
Dallas, TX. 75201
21417428944
You ask whether the State Commission for the Blind may maintain a
deferred compensation program from funds received from vending
4024 Alberta Ave., Suite 160 facilities located on federal property pursuant to the
El Paso, TX. 79905 Randolph-Sheppard Act.
91515333404
The Randolph-Sheppard Act, 20 U.S.C. sections 107-107f,
1220 Dallas Ave., Suite 202 authorizes the operation of vending facilities in federal buildings by
Houston, TX. 77002 blind vendors licensed by a state agency. See also Human Res. Code
713165OJl666 §§94.001-94.015. The act provides for the distribution of vending
machine income on federal property. 20 U.S.C. §107d-3. It authorizes
006 Broadway. Suite 312
the establishment of retirement or pension plans, health insurance
Lubbock, TX. 79401 programs, and provisions for paid sick leave and vacation time from
806/747-5238 income derived from vending facilities which accrues to the state
licensing agency, but makes no reference to deferred compensation
programs. 20 U.S.C. §107d-3(a). (c). It also states that any state
4309 N. Tenth, Suite B
McAllen, TX. 78501
agency which desires to be designated as the licensing agency must
512l682-4547 agree that, if any funds are set aside from the net proceeds of the
operation of the vending facilities, they may be used only for stated
purposes. Deferred compensation programs are not among these purposes.
200 Main Plaza, Suite 400
20 U.S.C. §107b. Thus, the Randolph-Sheppard Act itself does not
San Antonio, TX. 78205
5121225-4191
purport to authorize the establishment of a deferred compensation
program.
An Equal Opportunity/ The commission, as a state agency, has only that authority
Affirmative Action Employer
expressly granted by the constitution and statutes, or implied
therefrom. Railroad Commission of Texas v. Red Arrow Freight Lines,
Inc., 96 S.W.2d 735 (Tex. Civ. App. - Austin 1936, writ ref'd).
Article 6252-3b, V.T.C.S., authorizes the state or any political
subdivision thereof to agree, by contract, with any employee to defer,
in whole or in part, any portion of his compensation. section 4 of
the act provides that "[f]or the purposes of this Act, 'employee'
means any person whether appointed, elected, or under contract,
p. 1394
Mr. Evans N. Wentz - Page 2 (MW-409)
providing services for the State, county, city, town, or other
political subdivision, for which compensation is paid." (Emphasis
added). We conclude that state-licensed blind vendors are not
"employees" for the purposes of the act and that, therefore, the State
Commission for the Blind is without authority to establish and
maintain deferred compensation programs for them.
We construe the phrase "for which compensation is paid" to refer
to compensation paid by the state. In order for any person to qualify
for inclusion in the deferred compensation program. he must meet the
statutory criteria. The blind vendors are not paid compensation by
the state and, consequently, are not employees within the meaning of
section 4 of article 6252-3b, V.T.C.S. Their income is derived from
the vending facility, not from the state. Article 6252-3b provides in
section 3 that payroll deductions for deferred compensation shall be
made by the appropriate payroll officer. Thus, the statute
contemplates that a participant in a deferred compensation program
will be on the payroll of the state or a political subdivision.
Section 6 of article 6252-3b states that "any sum deferred under the
deferred compensation program shall not be subject to taxation until
distribution is actually made to the employee." The deduction for
deferred compensation is to be made before the employee receives that
portion of his compensation. This program is not available to persons
who operate vending facilities on federal property pursuant to the
Randolph-Sheppard Act.
In view of our answer to your first question, we need not answer
your additional questions.
SUMMARY
The State Commission for the Blind lacks
authority to establish and maintain a deferred
compensation program for commission-licensed blind
vendors operating vending facilities located on
federal property.
MARK WHITE
Attorney General of Texas
JOHN W. FAINTER, JR.
First Assistant Attorney General
RICHARD E. GRAY III
Executive Assistant Attorney General
p. 1395
. .
Mr. Evans N. Wentz - Page 3 om-409)
Prepared by Jim Moellinger
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Susan L. Garrison, Chairman
Jon Bible
Rick Gilpin
Nancy Lynch
Jim Moellinger
p. 1396